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Appeal No. 776 of 1966.
Appeal by special leave from the judgment and order dated April 26, 1965 of the Madras High Court in A.A.O. No. 1 of 1962.
S.C. Manchanda and T. A. Ramachandran, for the appellant.
B. Sen, M. Srinivasan and R. Thiagarajan for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The respondent is the owner of premises No. 8, Brahmin Street, Saidapet, Madras.
By a registered lease dated November 21, 1952 he let to the appellant the backyard of the 160 premises for a term of 5 years.
The backyard consisted of vacant land.
The lease deed authorized the appellant to use land for boiling ,and drying paddy, to use the gate in the western compound wall for ingress and egress, to erect an opening in the wall for bringing in and taking out the paddy, and to erect a temporary shed for keeping the Daddy on condition that while vacating the land he would dismantle the same.
The deed specifically provided that the appellant "should not.erect any kind of permanent super.structures on the said vacant site so as to entitle him to claim in future the value thereof," except such facilities as were necessary for drying Daddy at his own expense.
In contravention of this stipulation and without any authority from the respondent, the appellant erected permanent super structures on the land.
On the expiry of the lease the appellant refused to vacate the land.
On March 12, 1959 the respondent filed a suit for his eviction.
The appellant c1aimed protection under the Madras City Tenants, Protection Act.
1921 (Act III off 1922).
Before filing his written statement on February 15, 1960.
he filed an application under sec.
9 of the Act asking for an order that the respondent be directed to sell the land for a price to be fixed by the Court.
The trial Court decreed the suit on August 25, 1960.
The first appellate Court reversed the decree and dismissed the suit.
The High Court on second appeal restored the decree of the trial Court.
The present appeal has been filed after obtaining special leave.
The Courts below concurrently found that the appellant had constructed permanent super structures on the vacant land after November 21, 1952 without any authority from the respondent and in contravention of the stipulation in the registered lease.
This finding is not challenged before us.
In view of the fact that the construction was in contravention of the stipulation in the lease, the Trial Court and the High Court held that the appellant was not entitled to the protection of section 9 of the Act; but the first appellate Court held ' that the appellant was nevertheless entitled to such protection.
The Trial Court and the High Court held that the vacant site in the backyard being appurtenant to a house was building and not land, and the appellant not being a tenant of land was not protected by the Act; but the first appellate Court held that the vacant site was land and the tenancy was within the purview of the Act.
The appellant challenges the findings of the High Court on both points.
The following two questions arise for determination in this appeal.
(1) Is the tenant of a vacant site in the backward of a residential house a tenant of land within the purview of the Madras City Tenants ' Protection Act, 1921 ? (2) Having regard to the proviso to sec.
12 is such a tenant entitled to the protection sections 3 and 9 of the Act in a case where he has erected buildings on the land in contravention of an express stipulated in a registered lease ? 161 To appreciate the points arising in this case it is necessary to refer to the relevant provisions of the Madras City Tenants Protection Act, 1921.
The Act was passed with a view to give protection to tenants who in certain areas had constructed buildings on others ' lands in the hope that they would not be evicted so long as they paid fair rent for the land.
The Act was amended from time to time.
It extends to the city of Madras and other notified areas and applies only to tenancies of land created before certain specified dates.
(section 1).
It is common case before us that the Act extends to the area where the disputed land is situated.
Section 2 is the definition section.
"Building" is defined in section 2( 1 ) to include any building, hut or other structure whether of masonry, bricks, wood, metal or any other material whatsoever used (i) for residential or non residential purposes in certain specified areas and (ii) for residential purposes only, in any other area and includes the appurtenances thereto.
It may be mentioned that ."building" was not defined to include the appurtenances thereto in any area under see.
2( 1 ) before its amendment on July 27, 1960 by Madras Act III of 1960.
"Land" does not include buildings, Is. 2(2)].
"Landlord" means any person owning any land, Is.
2(3)].
"Tenant" in relation to any land means a person liable to pay rent in respect of such land under a tenancy express or implied and includes any such person who continues in possession of the land after the determination of the tenancy agreement, Is. 2( 4)].
Section 3 provides that every tenant shall on ejectment be entitled to be paid as compensation the value of any building which may have been erected by him and for which compensation has not already been paid.
Section 9 ( 1 ) provides that a tenant who is entitled to compensation under sec.
3 and against whom a suit in ejectment has been instituted may within the prescribed time apply to the Court for an order that the landlord should be directed to sell the whole or part of the land for a price .to be fixed by the Court.
Section 10 provides that sec.
9 shall apply to suits in ejectment which are pending before certain specified dates.
Section 11 requires 3 months notice in writing before the institution of a suit in ejectment against a tenant.
Section 12 provides that "nothing in any contract made by a tenant shall take away or limit his rights under this Act, provided that nothing herein contained shall affect any stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they relate to buildings erected after the date of the contract.
" Section 13 provides that in its application to the city of Madras and to other notified areas the Transfer of Property Act shall to the extent necessary to give effect to the provisions of ' the Act be deemed to have been repealed or modified.
The first question is whether the appellant is a tenant of land as contemplated by the Madras City Tenants Protection Act, 1921.
162 Before the execution of the lease deed dated November 21, 1952 the land in the backyard was occupied with and was appurtenant to the residential house at.
No. 8, Brahmin Street.
It may be conceded that if the respondent had let the residential building together with its appurtenant land, the tenancy would not be a tenancy of land within the purview of the Act.
But the respondent did not let the building with the land appurtenant thereto.
He retained the building and let the land separately.
The letting was of land and nothing else.
The appellant is not a tenant of a building as defined in sec.
2( 1 ) either before or after its amendment by Madras Act XIII of 1960.
He is a tenant of land as defined in section 2(2).
The High Court was in error in holding that he was a tenant of building.
The next question is whether having regard to the proviso to see.
12, the appellant is entitled to the benefits of sees.
3 and 9 in view of the fact that he constructed buildings in contravention of the express stipulation in the registered lease.
Under sec.
3 a tenant on ejectment is entitled to be paid as compensation the value of any building erected by him.
A tenant entitled to compensation under sec.
3 and against whom a suit for ejectment has been instituted is entitled to purchase the whole or part of the land by invoking the procedure under sec.
The effect of the main part of sec.
12 is that nothing in any contract made by a tenant takes away or limits his rights under sees.
3 and 9.
The proviso to sec.
12 saves stipulations as to the erection of buildings made by a tenant in a registered writing.
But a stipulation as to the erection of buildings made orally or in an unregistered writing is not protected by the proviso and a tenant erecting a building in breach of the covenant is entitled to the benefits of sees.
3 and 9.
In R.V. Naidu vs Naraindas(1) a piece of vacant land was let under an unregistered instrument of lease which provided that the tenants would not raise any building in the vacant site.
The tenants erected a building on the land in breach of the covenant.
This Court held reversing the decision of the High Court in Naraindas vs V. Naidu(2) that the tenants against whom a suit for ejectment had been instituted was entitled to the benefits of sees.
3 and 9.
The Court pointed out that as the covenant not to build was contained in an unregistered lease.
the proviso to sec.
12 had no application and the landlord could not rely on the covenant.
In the present case a registered lease contains a stipulation by the tenant that he would not build any permanent structure on the land so as to entitle him to claim in future the value thereof.
The point in issue is whether this is a stipulation as to the erection building within the proviso to see.
In Vajrapuri vs New [1966] I S.C.R. 1107 (2) [1963] 1 M.L.J. 140, 163 Theatres Carnatic Talkies Ltd.(1) the tenants obtained a lease of land for constructing a building suitable for use as a theatre.
The registered lease deed provided that on the expiry of the lease the tenants would surrender possession of the land after dismantling and removing the building constructed by him. 'The Madras High Court held that this stipulation was not one as to the erection of buildings and was not protected by the proviso to sec.
12 and that the tenants against whom a suit for ejectment had been instituted could claim the protection of sees.
3 and 9.
Ganapatia Pillai J. observed: "In our opinion, the application of the Proviso should be limited to those cases where the stipulations in the contract relate to erection of the building, such as the size of the building, the cost of the building and the design of the building or other cognate matters." He added : "We are not concerned here with a case of erection of buildings contrary to the stipulations contained in the written contract, to which the tenant was a party.
How far, in such a case, the tenant would be protected from foregoing his rights under the impugned Act does not arise for our consideration. " This decision was affirmed by this Court by a majority.
decision in Vajrapani Naidu vs New Theatre Carnatic Talkies(a).
Shah J. speaking for the majority said at pp.
1022 23 : "A covenant in a lease which is duly registered that the tenant shall on expiry of the lease remove the building constructed by him and deliver vacant possession, is undoubtedly a stipulation relating to the building, but it is not a stipulation as to the erection of building .
Having regard to the object of the Act, and the language used by the legislature, the exception must be strictly construed, and a stipulation as to the erection of buildings would not, according to the ordinary meaning of the words used, encompass a stipulation to vacate and deliver possession of the land on the expiry of the lease without claiming to enforce the statutory rights conferred upon the tenant by section 9.
The stipulations not protected in section 12 are only those in writing registered and relate to erection of buildings such as restrictions about the size and nature of the building constructed, the building materials to be used ' therein and the purpose for which the building is to be utilised." (1) 477 8.
(2) ; 164 The minority was of the opinion that the stipulation was protected by the proviso to sec.
Ayyangar 1.
speaking for the minority said at p. 1032 : "If a stipulation forbidding erection of buildings and requiting their removal before surrendering possession of the site is conceded to.
be one in respect of erection of building as has to be conceded it is not possible to accept the construction that stipulation for the removal of buildings which the lessee is permitted to erect and keep in the site only for the duration of the tenancy is any the less one in respect of erection of buildings." Having regard to this decision it must be held that a stipulation for giving vacant possession of the land after demolition of the building which the tenant has been authorised to construct thereon is not one as to the erection of buildings within the proviso to section 12.
In the present ease the registered lease deed authorised the appellant to erect a temporary shed on condition that while vacating the land he would dismantle the same.
The stipulation for vacating the land after dismantling the temporary shed is not protected by the proviso to section 12.
Had the appellant constructed a temporary shed he could in spite of the stipulation claim the protection of sections 3 and 9.
In the present case, the registered lease deed also contained an express stipulation that the appellant would not erect permanent structures of any kind on the land so as to entitle him to claim in future the value thereof.
This stipulation is dearly one as to the erection of buildings.
In common parlance a stipulation forbidding erection of building is understood to be one in respect of the erection of building.
The popular meaning furnishes the key to the interpretation of the proviso to sec.
If a stipulation concerning the size and .nature of the building to be erected on the land ' is one as to the erection of buildings, a fortiori a stipulation forbidding the erection of buildings of a particular kind altogether is one as to the erection of buildings within the proviso to sec.
In contravention of the stipulation, as to the erection of buildings, in the registered lease deed the appellant erected permanent structures on the land after the date of the lease.
The question is whether the appellant is entitled to compensation for the structures under see.
3 and to the benefits of see.
The effect of the proviso to see.
12 is that nothing in the Act affects the stipulation Sections 3 and 9 are subject to and controlled by the proviso to see.
Section 3 provides that a tenant shall on ejectment be entitled to be paid as compensation the value of any building erected by him.
The right conferred on the tenant by see.
3 is 165 controlled by the stipulation in the registered lease deed that he shall not erect permanent structures of any kind on the land so as to entitle him to claim in future the value thereof.
The stipulation overrides the tenant 's rights under section 3.
If the tenant erects a permanent structure in contravention of the stipulation he is not entitled to any compensation under sec.
As he is not entitled to any compensation under sec.
3 he cannot claim the benefit of sec.
The High Court rightly held that the appellant was not entitled to the protection of Sec. 9.
In the result, the appeal is dismissed with costs.
G.C. Appeal dismissed.

Output:
The respondent, by a registered lease deed, let to the appellant for a period of five years the backyard of a residential house in Madras.
The backyard consisted of vacant land.
According to the lease deed the appellant was allowed inter alia to boil and dry paddy on the said land and he was also allowed to erect a temporary shed for keeping the paddy on condition that while vacating the land he would dismantle the same.
The deed also specifically provided that the appellant "should not erect any kind of permanent super structure on the said vacant site so as to entitle him to claim in future the value thereof." In continuation of his stipulation the appellant erected permanent super structures on the land.
On the expiry of the lease of the appellant refused to vacate the land.
The respondent thereupon filed a suit for his eviction.
The appellant claimed protection under the Madras City Tenants ' Protection Act, 1921, Within the prescribed time he flied an application under section 9 of the Act asking for an order that the respondent be directed to sell the land for a price to be fixed by the court.
The trial court decreed the respondent 's suit.
The first appellate court reversed the decree of the trial court but the High Court restored it.
In appeal by special leave to this Court the questions that fell for determination were: (i) Is the tenant of a vacant site in the backyard of a residential house a tenant of land within the purview of section 2(2) of the Madras City Tenants ' Protection Act, 1921 ? (ii) Having regard to the proviso to section 12 is such a tenant entitled to the protection of sections 3 and 9 of the Act in a case when he has erected buildings on the land in contravention of an express stipulated in a registered deed ? HELD: (i) If the respondent had let the residential building together with its appurtenant land the tenancy would not be a tenancy of land within the meaning of the Act.
But the respondent did not let the building with land appurtenant thereto.
He retained the building and let the land separately.
The letting was of land and nothing else.
The appellant was not a tenant of a building as defined in section 2(1) either before or after its amendment by Madras Act XIII of 1960.
He was a tenant of land as defined in section 2(2).
[162 A C] (ii) (a) Under section 3 a tenant on ejectment is entitled to he paid as compensation the value of any building erected by him.
A tenant entitled to compensation under section 3 and against whom a suit for ejectment has been instituted is entitled to purchase the whole or part of the land by invoking the procedure under section 9.
The effect of the main part of section 12 is that nothing in any contract made by a tenant takes away or limits his rights under sections 3 and 9.
The proviso to 159 however, saves stipulations as to erections of buildings made by a tenant in a registered writing.
[162 D E] (b) A stipulation as to the erection of buildings made orally or in an unregistered writing is not protected by the proviso and a tenant erecting a building in breach of the covenant is entitled to the benefits of as. 3 and 9.
[162 E F] R.V. Naidu vs Naraindas, [1966] 1 S.C.R. 110 and Naraindas vs Naidu, referred to.
(c) A stipulation for giving vacant land after demolition of the building which the tenant has been authorised to construct thereon is not one as to the erection of buildings within the proviso to section 12.
Therefore in the present case the stipulation that the appellant could erect a temporary shed on condition that while vacating the land he would dismantle the same was not protected by the proviso to section 12.
[164 C D] Vajrapani Naidu vs New Theatre Carnatic Talkies, ; , relied on.
Vajrapuri vs New Theatres Carnatic Talkies, , 477 8, referred to.
(d) But in the present case the lease deed also contained an express stipulation that the appellant would not erect permanent structures of any kind so as to entitle him to claim the future value thereof.
This stipulation was clearly one as to the erection of buildings.
[164 E] In contravention of the stipulation as to the erection of buildings in the registered deed the appellant erected permanent structures on the land after the date of the lease.
The effect of the proviso to section 12 is that nothing in the Act affects the stipulation.
Sections 3 and 9 are subject to and controlled by section 12.
The stipulation overrides the tenant 's right under section 3.
If the tenant erects a permanent structure in contravention of the stipulation he is not entitled to any compensation under section 3.
As he is not entitled to any compensation under section 3 he cannot claim the benefit of section 9.
The High Court rightly held that the appellant was not entitled to the benefit of section 9.
[164 C 165 B]


Input:
Civil Appeal No. 812 of 1980 Appeal by special leave from the judgment and order dated the 23rd November, 1979 of the Allahabad High Court in Civil Misc.
Writ No 479 of 1978.
R.K. Garg, V.J. Francis and S.K. Jain for the Appellant.
Shanti Bhushan, R.K Jain, P.R. Jain and Pankaj Kalra for Respondent No. 1.
116 The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated November 23, 1979 of the Allahabad High Court allowing a writ petition quashing the order of the Rent Control and Eviction officer and remanding the case to him for considering the question afresh in accordance with law and in the light of the observations made by the High Court.
The appeal involves a short and simple point but the case appears to have had rather a long and chequered career.
Put briefly, the facts of the case fall within a narrow compass so far as the points for decision are concerned.
The first respondent, Smt.
Rajkumari Jain, inducted Shri Thapalayal as a tenant in the premises in dispute which are situated in the town of Bijnor.
The tenant intimated his intention to the Rent Control and Eviction officer to vacate the premises on 25.6.1974 on receipt of the aforesaid application of the tenant a Rent Control Inspector was directed to visit the spot and after visiting the same he reported that the premises in question were likely to fall vacant on 9.6.74.
The prescribed authority by its order dated 1.6.74 allotted the premises to the appellant.
In fact, the appellant had applied to the authority on 20.5.74 for allotment of the accommodation to him.
It appears that these proceedings were taken behind the back of the respondent landlady who was not taken into confidence either by the appellant or by the Rent Control authorities.
It was only after the prescribed authority had allotted the premises to the appellant and the respondent landlady came to know of this fact that she moved the prescribed authority for cancellation of the allotment but her prayer was rejected.
Thereafter, the landlady filed an appeal before the Additional District Judge, Bijnor which was allowed and the allotment in favour of the appellant was cancelled on the ground that the provisions of section 17(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act ') were not complied with.
Before narrating further sequence of facts, it may be necessary to examine the relevant provisions of the Act.
Section 17(2) of the Act may be extracted thus: "Where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour 117 under clause (b) of sub section (1) of Section to for residential purposes, the allotment of the remaining part thereof under clause (a) of the said sub section (1) shall be made in favour of a person nominated by the landlord " A perusal of this statutory provision would clearly disclose that the object of the Act was that where a tenant inducted by the landlord voluntarily vacates the premises, which are a part of the building occupied by the landlord, an allotment in the vacancy should be made only to a person nominated by the landlord.
The dominant purpose to be subserved by the Act is manifestly the question of removing any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the right of privacy of the landlord.
It is obvious that if the tenant has vacated the premises by himself and not at the instance of the landlord, there is no question of the Landlord occupying the said premises because he has got a separate remedy for evicting the tenant on the ground of personal necessity.
The statute, however, while empowering the prescribed authority to allot the accommodation, safeguards at least the right of the landlord to have a tenant of his choice.
In the instant case, the admitted position seems to be that when the prescribed authority allotted the premises to the appellant, the landlady was not taken into confidence nor was she asked to induct either the appellant or somebody else as the tenant of the premises which were likely to fall vacant or which may have fallen vacant.
This was undoubtedly an essential requirement of the provisions of section 17(2) of the Act as extracted above.
In these circumstances, there could be no doubt that the order of the prescribed authority allotting the premises to the appellant was completely without jurisdiction and against the plain terms of section 17(2) of the Act.
It was in view of this serious legal infirmity that the District Judge allowed the appeal filed by the landlady on 27.1.1976 and cancelled the allotment of the accommodation to the appellant.
On 2.2.76 the landlady herself filed an application before the District Magistrate, Bijnor for delivery of possession of the said premises to her but the District Magistrate rejected the application by his order dated 8.3.76 on the ground that as the landlady had not applied for release of the accommodation, she could not be allotted the premises straightaway.
On 5.4.76 the District Supply officer, Bijnor directed the counsel for the landlady to nominate a person 118 for allotment of the premises.
As against this, the landlady applied for release of the accommodation to her in terms of the provisions of section 16(1) (b) of the Act which runs thus: "16.
Allotment and release of vacant building.
(1) Subject to the provisions of this Act, the District Magistrate may by order: (a) xx xx (b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order).
" The prayer of the landlady under section 16(1) (b) also appears to have been ignored by the Rent Control authorities and by an order dated 15.4.76, the District Supply officer re allotted the accommodation to the appellant.
This led the landlady to file another appeal before the Additional District Judge, Bijnor who by his Order dated 21.9.77 rejected the plea of the landlady, dismissed the appeal and confirmed the order of allotment.
The respondent landlady there upon filed a writ petition in the High Court challenged the orders of the District Supply officer as also of the District Judge who had affirmed that order and confirmed the order of allotment in favour of the appellant.
The High Court by the impugned order allowed the writ petition and sent the matter back to the Rent Control and Eviction officer to consider the question of allotment afresh in view of the observations Made by the High Court.
The appellant then obtained special leave of this Court against the order of the High Court and hence this appeal before us.
In support of the appeal, Mr. Shanti Bhushan, learned counsel for the appellant submitted that the High Court had no jurisdiction to interfere with the concurrent finding of fact given by the District Supply officer and the District Judge confirming the allotment in favour of the appellant and that too in a writ jurisdiction.
He also submitted that the landlady was not at all in actual physical possession of the premises and had been living outside Bijnor and, there fore, neither the provisions of section 16(1) (b) nor those of section 17(2) of the Act would apply to the facts of the present case.
On the other 119 hand, the counsel for the respondent submitted that initially the only question before the Rent Control Authority was whether the allotment should be made to the appellant even though he was not nominated by the landlady under section 17(2) of the Act.
It is common ground that the appellant was not a nominee of the landlady and, as discussed above, the District Judge in his first order had quashed the allotment on the ground that the provisions of section 17(2) had not been complied with.
It was also argued on behalf of the respondent landlady that the circumstances having changed, she now wanted to stay in Bijnor permanently and as she wanted additional accommodation she had applied to the District Magistrate under section 16(1) (b) for releasing the building in her favour.
This application was not at all considered on merits by the District Magistrate or by any court for that matter.
If the respondent could succeed in convincing the District Magistrate that a case for release of the entire building was made out, then the question of allotting the premises to the appellant would not have arisen at all.
We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make section 17(2) inapplicable.
Possession by a landlord of his property may assume various forms.
A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it incharge of a servant or by putting his household effects or things locked up in the premises.
Such an occupation also would be full and complete possession in the eye of law.
It was further argued by Mr. Shanti Bhushan that the landlady had absolutely no reason to stay in Bijnor because she was staying with her son in some other town.
That by itself is hardly a good ground for the landlady who was a widow to sever her connections with her own property.
Moreover, we do not want to make any observations on the merits of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.
So far as the second point is concerned, Viz.
, the question of allotment of the premises to the appellant, the High Court was fully 120 justified in quashing the order of the District Supply officer as affirmed by the District Judge because despite several opportunities no attempt had been made to approach the landlady to nominate a tenant.
There is no evidence to show that either the prescribed authority or the Rent Control and Eviction officer ever approached the landlady for making a nomination in respect of the premises vacated by the original tenant and she refused to do so.
All that the landlady did was to ask for the release of the premises but even if this was refused it was incumbent on the Rent Control authorities to have fulfilled the essential conditions of section 17(2) of the Act before making any allotment in favour of the appellant or for that matter any other person.
It was suggested that as the landlady was not living 4 in the premises which were locked up, section 17(2) did not apply.
We have already rejected this argument because even occupation of apart of a building by the owner which she may visit off and on is possession in the legal sense of the term and, therefore, it cannot be said that the provision of section 17(2) would not apply and that the Rent Control authorities could make an allotment in favour of any person without giving an opportunity to the landlady or the landlord to exercise her/his privilege of nominating a tenant.
We have already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to protect him/her from unpleasant tenants or indecent neighbours who may make the life of the owner a hell.
Moreover, the conduct displayed by the appellant in this case clearly shows that if he was thrust on the respondent without her being allowed an opportunity to nominate a tenant, it will violate the very spirit and tenor of section 17(2) of the Act.
As we are of the opinion that the order of the High Court has to be upheld we refrain from making any further observations on the merits or any aspect of the matter which have to be gone into afresh as directed by the High Court.
We find no merit in this appeal which is dismissed with costs quantified at Rs. 1,000/ (Rupees one thousand only.).
P.B.R. Appeal dismissed.

Output:
Section 16(1) (b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 empowers the District Magistrate to release the whole or any part of a building or any land appurtenant thereto, in favour of the landlord.
Section 17(2) provides that where a part of a building is in the occupation of the landlord for residential purposes or is released in his favour under section 16(1) (b) for residential purposes the allotment of the remaining part thereof under clause (a) of sub section (1) shall be made in favour of a person nominated by the landlord.
On intimation from tho tenant that he was vacating the premises, the rent control authority allotted them to the appellant without informing the landlady about the allotment.
On appeal the District Judge cancelled the allotment made in favour of the appellant The landlady then made an application for delivery of possession of the premises.
This application was rejected on the ground that she had not applied for release of the accommodation.
Her application under section 16(1) (b) for release of the premises was rejected and the accommodation was re allotted to the appellant.
The District Magistrate affirmed the order of the rent control authority.
The landlady 's writ petition impugning the orders of the courts below was allowed by the High Court.
The case was remitted to the courts below for reconsideration afresh of the question of allotment.
In appeal to this Court it was contended on behalf of the appellant that since the landlady was not in actual physical possession of the premises neither section 16(1) (b) nor section 17(2) had any application to the facts of this case.
Dismissing the appeal, ^ HELD: The order of the prescribed authority allotting the premises to the appellant was without jurisdiction and against the plain terms of section 17(2) of the Act.
The District Judge had rightly allowed the landlady 's appeal and cancelled The allotment to the appellant.
115 The object of the Act is that where a tenant inducted by the landlord voluntarily vacates the premises, partly occupied by the landlord, allotment in the vacancy should be made only to a person nominated by him, the dominant purpose of such provision being to remove any inconvenience to the landlord by imposing or thrusting on the premises an unpleasant neighbour or a tenant who invades the landlord 's right of privacy.
While empowering the prescribed authority to allot the accommodation, the Act safeguards the right of the landlord to have a tenant of his choice.
[117 B C, D] In the instant case if a tenant was thrust on the respondent without allowing her an opportunity to nominate a tenant of her choice it would violate the very spirit and tenor of section 17(2).
[120 F] Possession by a landlord of his property may assume various forms: a landlord living outside the town might retain possession over his property or a part of it either by leaving it in charge of a servant or by putting his household effects locked up in the premises.
Such occupation would be full and complete possession in the eye of law.
[119 F] In the instant case from the fact that the landlady was residing in another town and so was not actually residing in the premises it could not be said that she was not in possession of the premises or that she had severed her connection with her own property.
[119 G] The High Court was justified in quashing the orders of the rent control authority because no attempt had been made to approach the landlady for making a nomination in respect of the premises vacated by the original tenant.
All that the landlady did was to ask for the release of the premises.
Even if this was refused it was incumbent on the rent control authority to have fulfilled the requirements of section 17(2) before making an allotment in favour of the appellant or anyone else.
Simply because the landlady was living outside the town it could not be said that the provisions of this sub section would not apply and that the authorities concerned could make an allotment in favour of any person without giving an opportunity to her to exercise her privilege to nominate a tenant.
[120 A C]


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Criminal Appeal No. 149/1958.
Appeal from the judgment and order dated October 27, 1958, of the Allahabad High Court in Criminal Appeal No. 1154 of 1956.
N. C. Chatterjee and R. L. Kohli, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
September 27.
The Judgment of the Court was delivered by RAGHUBAR DAYAL J.
This is an appeal by Padam Sen and Shekbar Chand against the order of the Allahabad High Court dismissing their appeal against the order of the Special Judge, Meerut, convicting them of an offence under section 165 A of the Indian Penal Code.
The High Court granted leave to appeal against its order.
One Genda Mal, father of Shekhar Chand, appellant No. 2, sued Mithan Lal and others in the Court of the Additional Munsif, Ghaziabad, for money on the basis of promissory notes executed by the defendants in his favour.
The defendants apprehending that the plaintiff would fabricate his books of account with respect to payments made by them, applied for the seizure of the account books of the plaintiff.
The Additional Munsif, by his order dated March 27, 1954, appointed Sri Raghubir Pershad, Vakil, Commissioner to seize those books of account.
The Commissioner accordingly seized those books and brought them to Ghaziabad.
The appellants were convicted by the Special Judge under section 165 A of the Indian Penal Code for having offered bribe to the Commissioner for being allowed an opportunity to tamper with those books of account.
Their conviction was upheld by the High Court.
The two Courts below have found that the appellants went to the Commissioner 's Office on March 30, 1954, and offered him Rs. 900 as bribe.
The appellants do not challenge these findings of fact recorded by the Courts below.
Their only contention is that 113 886 Sri Raghubir Pershad, the Commissioner, was not a public servant, and therefore even on the basis of the findings of fact arrived at by the Courts below, they did not commit any offence under section 165 A of the Indian Penal Code.
It has been contended for the appellants that the appointment of Sri Raghubir Pershad as Commissioner was null and void as the Additional Munsif had no power to appoint a Commissioner for the purpose of seizing the account books of the plaintiff on an application b application by the defendants, the power of a Civil Court to issue a commission being limited by the provisions of section 75 and Order XXVI of the Code of Civil Procedure (hereinafter called the Code), and the Court having no inherent power to appoint a Commissioner for any purpose not mentioned in section 75 and Order XXVI of the Code.
On behalf of the State it is urged that the Court can appoint a Commissioner in the exercise of its inherent powers saved by section 151 of the Code for purposes which do not come within the provisions of section 75 and Order XXVI of the Code.
It is further submitted for the State that even if the Additional Munsif had no power to appoint the Commissioner for seizing the books of account, Sri Raghubir Pershad would be deemed to be a public servant in view of Explanation 2 to section 21 of the Indian Penal Code because he was in actual possession of the situation of a public servant for he acted as Commissioner and was recognized as such by the appellants and others connected with the civil suit.
Section 75 of the Code empowers the Court to issue a commission, subject to conditions and limitations which may be prescribed, for four purposes, viz., for examining any person, for making a local investigation, for examining or adjusting accounts and for making a partition.
Order XXVI lays down rules relating to the issue of commissions and allied matters.
Mr. Chatterjee, learned counsel for the appellants, has submitted that the powers of a Court must be found within the four corners of the Code and that when the Code has expressly dealt with the subject matter of commissions in section 75 the Court cannot 887 invoke its inherent powers under section 151 and thereby add to its powers.
On the other hand, it is submitted for the State, that the Code is not exhaustive and the Court, in the exercise of its inherent powers, can adopt any procedure not prohibited by the Code expressly or by necessary implication if the Court considers it necessary, for the ends of justice or to prevent abuse of the process of the Court.
Section 151 of the Code reads: " Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court ".
The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code.
They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the puposes mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.
It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.
The question for determination is whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad Commissioner for seizing the plaintiff 's books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers.
The inherent powers saved by section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it.
These powers are not powers over the substantive rights which any litigant possesses.
Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party.
Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice 888 and procedure.
A party has full rights over its books of account.
The Court has no inherent power forcibly to seize its property.
If it does so, it invades the private rights of the party.
Specific procedure is laid down in the Code for getting the relevant documents or books in Court for the purpose of using them as evidence.
A party is free to produce such documents or books in support of its case as be relevant.
A party can ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and are admitted by that party to be in its possession.
If a party does not produce the documents it is lawfully called upon to produce, the Court has the power to penalize it, in accordance with the provisions of the Code.
The Court has the further power to draw any presumption against such a party who does not produce the relevant document in its possession, especially after it has been summoned from it.
Even in such cases where the Court summons a document from a party, the Court has not been given any power to get hold of the document forcibly from the possession of the defaulting party.
The defendants had no rights to these account books.
They could not lay any claim to them.
They applied for the seizure of these books because they apprehended that the plaintiff might make such entries in those account books which could go against the case they were setting up in Court.
The defendants ' request really amounted to the Court 's collecting documentary evidence which the defendants considered to be in their favour at that point of time.
it is no business of the Court to collect evidence for a party or even to protect the rival party from the evil consequences of making forged entries in those ac.
count books.
If the plaintiff does forge entries and uses forged entries as evidence in the case, the defendants would have ample opportunity to dispute those entries and to prove them forgeries.
We are therefore of opinion that the Additional Munsif bad DO inherent power to pass the order appointing a Commissioner to seize the plaintiff 's 889 account books.
The order appointing Sri Raghubir Pershad as Commissioner for this purpose was therefore an order passed without jurisdiction and was therefore a null and void order.
Learned counsel for the State, Mr. Mathur, has submitted in the alternative that the impugned procedure adopted by the Additional Munsif comes within certain provisions of the Code and has referred to r. 5 of Order XXXVIII and rr. 1(b) and 7 of Order XXXIX and r. 1 of Order XL of the Code.
We do not agree with this contention.
The impugned order was not passed under any of these provisions.
It was clearly an order which the Additional Munsif purported to pass in the exercise of the inherent powers of the Court.
The order was: " It is strange that an application of this kind has been made at this late stage, after over 2 years.
However, in the interests of justice, issue commission to Sri Raghubir Pershad.
Ho must go and recover Bahi Khatas for the year 1951 from the plaintiff and produce the same in Court.
Fees Rs. 20, plus T. A. Report within six days.
Costs of the commission will not be taxed.
" Further, the provisions of r. 5 of Order XXXVIII are to prevent a decree that may be passed being rendered infructuous and r. 1(b) of Order XXXIX is applicable where the defendant threatens to dispose of his property to defraud creditors.
None of these provisions has any application to the facts of the present case.
Rule 7 of Order XXXIX empowers the Court, on the application of any party to a suit, to make an order for the detention, preservation or inspection of any property which is the subject matter of such suit or as to which any question may arise therein.
The account books of the plaintiffs were not ' property ' which were the subject matter of the suit nor such that about them a question could arise in the suit.
The account books could, at best, have been piece of evidence, if the plaintiff or the defendant had cared to rely on them.
We therefore hold that the Additional Munsif had no power under the Code to appoint the Commissioner for seizing the plaintiff 's books of account.
890 Lastly it was urged for the State that even if the appointment of Sri Raghubir Pershad as Commissioner was null and void as the Additional Munsif had no jurisdiction to appoint a Commissioner for seizing the account books of the plaintiff, Sri Raghubir Pershad should be treated to be a 'public servant ' in view of Explanation 2 to section 21 of the Indian Penal Code.
It has not been disputed for the appellant that if the appointment Of Sri Raghubir Pershad as Commissioner bad been valid, he would have been a public servant in view of the Fourth Clause to section 21 of the Indian Penal Code.
Explanation 2 to section 21 reads: "Wherever the words 'public servant ' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
" The contention for the State is that though there was a legal defect in Sri Raghubir Pershad 's appointment as Commissioner on account of the Additional Munsif having no power to appoint a Commissioner for the purpose of seizing the plaintiff 's books of account, that will not affect his being a public servant as he was in actual possession of the situation of a public servant.
We do not agree with this contention, and are of opinion that the Explanation applies only when there be a post in existence.
The Explanation does not apply when there is no pre existing post or when the person appointing has no authority to appoint.
The word 'situation ' according to Webster 's New International Dictionary of the English Language, means: position or place of employment, place, office; as a situation in a store.
The apposite meaning for the purposes of this Explanation would be 'office '. 'Office ' again, according to the same Dictionary, means a special duty, trust, charge or position, conferred by an exercise of governmental authority and for a public purpose ; a position of trust or authority conferred by an act of governmental power ; a right to exercise a public function or employment and receive the emoluments (if any) thereto belonging; as, an executive or judicial office. .
In a wider sense, any position or place in the employment of the 891 government, especially one of trust or authority.
The Dictionary further notes the differences in the con.
notations of the various words office, post, appointment, situation and place and says: Office commonly suggests a position of (especially public) trust or authority ; and situation emphasizes the idea of employment, especially in a subordinate position; as, to seek a situation as governess, as private secretary.
It is therefore clear that it is necessary for the application of this Explanation that the person concerned should be in actual possession of the pre existing office of a public servant.
If there be no office or post, there could be no question of any person 's being in actual possession thereof, and of the person concerned coming within the terms of this Explanation.
There was no post or office of a Commissioner in existence.
All that happened here was that Sri Raghubir Pershad was authorized to seize and keep certain documents in his possession.
In the present case there was neither any existing office of Commissioner, nor the Additional Munsif had power to appoint Sri Raghubir Pershad as Commissioner for the purpose of seizing the plaintiff 's account books and therefore this Explanation does not apply to the appointment of Sri Raghubir Pershad as Commissioner.
It follows, there.
fore, that Sri Raghubir Persbad cannot be held to be a public servant.
We therefore accept the contention for the appellants and hold that Sri Raghubir Pershad was not a public servant and that therefore the appellants did not commit any offence under section 165 A of the Indian Penal Code by their offering him money in order to have an opportunity to tamper with the books of account which were in his custody.
We therefore allow the appeal, set aside the order of the Court below and acquit the appellants of the offence under section 165 A and direct that the fine, if paid, be refunded.
The appellants are on bail and therefore the bail bonds will be cancelled.
Appeal allowed.

Output:
A Munsif appointed one R as a commissioner for seizing the account books of the plaintiff in a suit and to produce them before him.
R seized the account books, and while they were still in his possession the appellants offered a bribe to R for being allowed to tamper with them.
The appellants were tried and convicted under section 165 A of the Indian Penal Code.
The appellants contended that the Munsif had no jurisdiction to appoint a commissioner for seizing account books, that the appointment of R as a commissioner was null and void and that consequently R was not a public servant and the appellants committed no offence in offering him a bribe.
The respondent urged that the Munsif had jurisdiction under his inherent powers under section 151, Code of Civil Procedure, to appoint the commissioner and that in any case as R was in actual possession of the situation of a public servant within Explanation 2 to section 21 Of the Indian Penal Code, he would be deemed to be a public servant.
Held, that R was not a public servant and the appellants did not commit any offence under section 165 A of the Penal Code by offering him a bribe.
The Munsif had no inherent powers to appoint a commissioner to seize account books and his order was null and void.
The inherent powers under section 151, Code of Civil Procedure, were with respect to the procedure to be followed by a Court in deciding the cause before it; such powers did not extend over the substantive rights of litigants.
A party had full rights over his account books and the Court had no inherent power to forcibly seize his property.
Explanation 2 to section 21, Indian Penal Code, applied only to a person actually in possession of a pre existing office of a public servant.
In the present case there was no post or office of a commissioner in existence which could be said to have been occupied by R. His appointment being without jurisdiction R could not be deemed to be a public servant. 885


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Appeal No. 239 of 1955.
Appeal from the Judgment and Decree dated the 30th November, 1953, of the former Nagpur High Court in First Appeal No. 118 of 1947, arising out of the Judgment and Decree dated the 12th August, 109 1947, of the Court of the Additional District Judge, Wardha, in Civil Suit No. 9 A of 1946.
M. C. Setalvad, Attorney General for India, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellants.
M. Adhikari, Advocate General for the State of Madhya Pradesh and 1.
N. Shroff, for the respondent.
January 21.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This is an appeal by the widow, and the minor son of Mangilal, defendant 1, and it has been filed with a certificate by the High Court of Judicature at Nagpur.
It arises out of a suit filed by the respondent Shrimati Lilabai w/o Vrijpalji, for the specific performance of a contract to lease or in the alternative for damages and for a declaration against defendant 2, the daughter of defendant 1 that she has no right, title or interest in the property in suit.
The respondent 's case was that defendant I had executed an instrument (exhibit P 1) in favour of the respondent by which he had contracted to lease to her in perpetuity in occupany right his four khudkasht lands admeasuring 95.19 acres situated in Mouza Mohammadpur in consideration of the debt of Rs. 8,700.
According to the respondent the instrument had provided that, if defendant 1 did not repay to her the said debt on June 1, 1944, the said contract of lease would be operative on and from that date.
Defendant 1 did not repay the loan by the stipulated date and so he became liable to perform and give effect to the said contract of lease on June 1, 1944.
The respondent repeatedly called upon defendant 1 to perform the said contract, but defendant I paid no heed to her demands and so she had to file the present suit for specific performance.
The respondent had been and was still ready and willing to specifically perform the agreement and to accept a deed of lease for the lands in question in lieu of the said debt of Rs. 8,700.
Defendant 1, however, had been guilty of gross and unreasonable delay in performing his part of the con tract and that had caused the respondent the loss of 110 the benefit of the lease and consequent damage.
On these allegations the respondent claimed specific performance of the contract and an amount of Rs. 2,340 as compensation or in the alternative damages amounting to Rs. 11,080.
To this suit Mst.
Durgabai, the daughter of defendant I had been impleaded as defendant 2 on the ground that she was setting up her own title in respect of the lands in suit and a declaration was claimed against her that she had no right, title or interest in the said lands.
Defendant 2 filed a written statement contesting the respondent 's claim for a declaration against her but she did not appear at the trial which proceeded exparte against her.
In the result defend ant 1 was the only contesting defendant in the proceedings.
Several pleas were raised by defendant I against the respondent 's claim.
He denied the receipt of the consideration alleged by her and he pleaded that the document (exhibit P 1) was a bogus, sham and collusive document which had been brought into existence for the purpose of shielding his property from.
his creditors and it was not intended to be acted upon.
It was also urged by him that the said document, if held to be genuine, was an agreement to lease under section 2(7) of the Indian , and since it was not registered it was inadmissible in evidence.
The learned trial judge framed appropriate issues on these pleadings and found against defendant I on all of them.
Accordingly a decree was passed ordering defendant 1 to execute a lease deed in respect of the fields mentioned in the plaint on a proper stamp paper in occupancy right in favour of the respondent and to put her in possession of them.
A decree for the payment of Rs. 2,316 by way of compensation was also passed against him.
The declaration claimed by respondent against defendant 2 was likewise granted.
This decree was challenged by defendant 1 by his appeal before the High Court of Judicature at Nagpur.
Pending the appeal defendant I died and his widow and his minor son came on the record as his 111 legal representatives and prosecuted the said appeal.
The High Court held that the document was supported by consideration, that it was not an agreement to lease under section 2(7) of the Indian and therefore it did not require registration and was admissible in evidence.
In the result the decree passed by the trial court was confirmed and defendant 1 's appeal was dismissed.
The present appellants then applied to the High Court for leave to appeal to this Court and the High Court granted leave because it held that the basic question involved in the decision of the appeal was the legal effect of exhibit P 1 and that the construction of a document of title is generally regarded as a substantial question of law.
It is with this certificate that the present appeal has come before this Court, and it raises two questions for our decision: Is the document (exhibit P 1) an agreement to lease under section 2(7): If not, does it require registration under section 17 of the said Act ? All other issues which arose between the parties in the courts below are concluded by concurrent findings and they have not been raised before us.
Before dealing with these points, we must first consider what the expression " an agreement to lease " means under section 2(7) of the Indian , hereinafter referred to as the Act.
Section 2(7) provides that a lease includes a counterpart, kabuliyat, an undertaking to cultivate and occupy and an agreement to lease.
In Hemanta Kumari Debi vs Midnapur Zamindari Co. Ltd. (1) the Privy Council has held that " an agreement to lease, which a lease is by the sta tute declared to include, must be a document which effects an actual demise and operates as a lease ".
In other words, an agreement between two parties which entitles one of them merely to claim the execution of a lease from the other without creating a present and immediate demise in his favour is not included under section 2, sub section
In Hemanta Kumari Debi 's case (1) a petition setting out the terms of an agreement in compromise of a suit stated as one of the (1) (1919) L. R. 46 1. A. 240.
112 terms that the plaintiff agreed that if she succeeded in another suit which she had brought to recover certain land, other than that to which the compromised suit related, she would grant to the defendants a lease of that land upon specified terms.
The petition was recited in full in the decree made in the compromised suit under section 375 of the Code of Civil Procedure, 1882.
A subsequent suit was brou ght for specific performance of the said agreement and it was resisted on the ground that the agreement in question was an agreement to lease under section 2(7) and since it was not registered it was inadmissible in evidence.
This plea was rejected by the Privy Council on the ground that the document did not effect an actual demise and was outside the provisions of section 2(7).
In coming to the conclusion that the agreement to lease under the said section must be a document which effects an actual demise the Privy Council has expressly 'approved the observations made by Jenkins, C. J., in the case of Panchanan Bose vs Chandra Charan Misra (1) in regard to the construction of section 17 of the Act.
The document with which the Privy Council was concerned was construed by it as " an agreement that, upon the happening of a contingent event at a date which was indeterminate and, having regard to the slow progress of Indian litigation, might be far distant, a lease would be granted "; and it was held that " until the happening of that event, it was impossible to determine whether there would be any lease or not ".
This decision makes it clear that the meaning of the expression " an agreement to lease " " which, in the context where it occurs and in the statute in which it is found, must relate to some document that creates a present and immediate interest in the land ".
Ever since this decision was pronounced by the Privy Council the expression " agreement to lease " has been consistently construed by all the Indian High Courts as an agreement which creates an immediate and a present demise in the property covered by it.
It would be relevant now to refer to the observations (1) Cal.
113 of Jenkins, C. J., in the case of Panchanan Bose (1).
In that case, a solehnama by which no immediate interest in immoveable property was created was held not to amount to a lease within the meaning of cl.
(d) of section 17 of the Act but merely an agreement to create a lease on a future day.
" Such a document ", it was observed, " fell within cl.
(h) of section 17 and as such was admissible in evidence without registration ".
Jenkins, C. J., held that " on a fair reading of the document, no immediate interest was created, there was no present demise, and the document was merely an agreement to create a lease on a future day, the terms of which were to be defined by documents to be thereafter executed ".
" This being so ", said the learned C. J., " I think the appellants I rave rightly contended before us that the document was admissible in evidence as it falls within cl.
(h) of section 17 of the Indian ".
This decision would show that an agreement which creates no immediate or present demise was not deemed to be a lease under section 2(7) and so it was hold to fall within section 17(h) of the Act and this view has been specifically affirmed by the Privy Council in Hemanta Kumari Debi 's case (2).
It is true that in Narayanan Chetty vs Muthiah Servai (3) a Full Beach of the Madras High Court had held that an agreement to execute a sub lease and to get it registered at a future date was a lease within section 3 of the Indian of 1877 (III of 1877) and was compulsorily registrable under el.
(d) of section 17.
Such an agreement to grant a lease which requires registration, it was held, affects immoveable property and cannot be received in evidence in a suit for specific performance of an agreement.
The question which was referred to the Full Bench apparently assumed that the agreement in question required registration and the point on which the decision of the Full Bench was sought for was whether such an agreement can be received in evidence in a suit for specific performance (1) where possession is given in pursuance of an agreement, and (2) where it is not; and the Full Bench (1) Cal. 808.
(2) [1919] L.R. 46 I.A. 240.
(3) Mad.
15 114 answered this question in the negative. " An agreement to lease ", it was observed in the judgment of the Full Bench, " is expressly included in the definition of the lease in the while it cannot be suggested that an agreement to sell falls within any definition of sale ".
It is clear that the question about the construction of the words " agreement to lease " was not specifically argued before the Full Bench, and the main point considered was the effect of the provisions of section 49 of the Act.
In that connection the argument had centred round the effect of the provisions of cl.
(h) of section 17 of the and section 54 of the Transfer of Property Act.
The Full Bench took the view that in enacting section 49 of the Act the Legislature meant to indicate that the instrument should not be received in evidence even where the transaction sought to be proved did not amount to a transfer of interest in immoveable property but only created an.
obligation to transfer the property.
A contract to sell immovable property in writing, though it may affect the property without passing an interest in it, is exempted from registration by clause (h) (now cl. 2 (v)) of section 17 but an agreement in writing to let, falling within cl.
(d) of section 17, is not.
That is why, according to the Full Bench, such an agreement cannot be received in evidence of the transaction which affects the immovable property comprised therein.
Thus this decision does not directly or materially assist us in construing the expression " agreement to lease ".
Besides, the said decision has not been followed by the Madras High Court in Swaminatha Mudaliar vs Ramaswami Mudaliar (1) on the ground that it can no longer be regarded as good law in view of the decision of the Privy Council in Hemanta Kumari Debi 's case(2), and, as we have already pointed out, all the other High Courts in India have consistently followed the said Privy Council decision.
The learned Attorney General has, however, contended before us that the correctness of the decision of the Privy Council in Hemanta Kumari Debi 's case (2) is open to doubt and he has suggested that we (1) Mad. 399.
(2) (1919) L.R. 46 I A. 240.
115 should re examine the point on the merits afresh.
We do not think there is any substance in this contention because, if we may say so with respect, the view taken by the Privy Council in the said case is perfectly right.
Section 17(1) of the Act deals with documents of which registration is compulsory.
It is obvious that the documents falling under cls.
(a), (b), (c) and (e) of sb section
(I ') are all documents which create an immediate and present demise in immovable properties mentioned therein.
The learned Attorney General 's argument is that cl.
(d) which deals with leases does not import any such limitation because it refers to leases of immoveable properties from year to year or any term exceeding one year or reserving a yearly rent; and the Act deliberately gives an inclusive definition of the term 'lease ' in section 2(7).
This argument, however, fails to take into account the relevant provisions of the Transfer ' of Property Act.
Section 4 of the said Act provides that section 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian .
Section 107 is material for our purpose.
Under this section a lease of immoveable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only under a registered instrument.
This section also lays down that where a lease of immoveable property is made by a registered instrument, such instrument, or, where there are more instruments than one, each instrument, shall be executed by both the lessor and the lessee.
It would be noticed that if section 107 has to be read as supplemental to the Act, the definition of the word I lease ' prescribed by section 105 would inevitably become relevant and material; and there is no doubt that under section 105 a lease of immoveable property is a transfer of right to enjoy such property made in the manner specified in the said section.
Therefore, it would not be right to assume that leases mentioned in cl.
(d) of section 17, sub section
(1), would cover cases of documents which do not involve a present and immediate transfer of leasehold rights.
It would thus be reasonable to hold that, like the instruments mentioned in cls.
(a), (b) and (c) of section 17(1), leases also are instruments 116 which transfer leasehold rights in the property immediately and in presenti.
We have already referred to the requirement of section 107 of the Transfer of Property Act that a lease must be executed both by the lessor and the lessee.
It may be pertinent to point out that an instrument signed by the lessor alone which may not be a lease under section 107 may operate as an agreement to lease under section 2(7) of the Act.
The legislative history of the provisions of section 17(2)(v) may perhaps be of some assistance in this connection.
Section 17(h) of Act III of 1877 which ,corresponds to the present section 17(2) (v) did not appear in the earlier Registration Acts of 1864,1866 and 1871.
Its introduction in Act III of 1877 became necessary as a result of the decision of the Privy Council in Fati Chand Sahu vs Lilambar Singh Das (1) in which it was held that an agreement to sell immoveable property for Rs. 22,500 coupled with an acknowledgment of the receipt of Rs. 7,500 and a promise to execute a sale deed on the payment of the balance was compulsorily registrable under section 17 of the Act (2).
Section 17(h) was therefore enacted in 1877 to make it clear that a document which does not itself create an interest in the immoveable property does not require registration even if it expressly contemplates and promises the creation of that interest by a subsequent document; in other words, contracts of sale and purchase of which specific performance would be granted under certain circumstances fall within this provision and would no longer be governed by the said decision of the Privy Council in the case of Fati Chand Sahu vs Lilambar Singh Das (1).
Thus the policy of the Legislature clearly is to exclude from the application of cls.
(b) and (c) of section 17(1) agreements of the said character.
On principle, there is no difference between such agreements of sale or purchase and agreements to lease.
Under both classes of documents no present or immediate demise is made though both of them may lead to a successful claim for a specific performance.
That is why the Privy Council observed in the (1) ; 14 M. L. A. 129.
(2) Act XX of 1866.
117 case of Hemanta Kumari Debi (1) that the context and the scheme of the statute justified the view taken by Jenkins, C. J., in the case of Panchanan Bose (2).
It may also be relevant to bear in mind that the other documents which are included within the word I lease ' by section 2(7) of the Act support the same conclusion.
A counterpart, as it is usually understood, is a writing by which a tenant agrees to.
pay a specified rent for the property let to him and signed by him alone.
It is thus in the nature of a counterpart of a lease and as such it is included within the meaning of the word I lease ' under section 2(7).
Same is the position of a kabuliyat and an undertaking to cultivate or occupy.
In other words, it is clear that all the four instruments which, under the inclusive definition of section 2(7), are treated as leases satisfy the test of immediate and present demise in respect of the immoveable property covered by them.
We must, therefore, hold that the expression " an agreement to lease " covers only such agreements as create a present demise.
Let us now proceed to deal with the question as to whether the document (exhibit P 1) constitutes " an agreement to lease "It purports to be a receipt executed in favour of the respondent by defendant I and bear a four anna revenue stamp.
" I have this day giver to you ", says the document, " the land described below which is owned by me.
Now you have become occupancy tenant of the same.
You may enjoy the same in any way you like from generation to generation.
My estate and heirs or myself shall have absolutely no right thereto.
You shall become the owner of the said land from date 1 6 1944.
1 will have absolutely no right thereto after the said date ".
The the document proceeds to mention the properties and describes them in detail, and it adds " all the above fields are situate at Mouza Mohammadpur, mouz No. 312, tahsil Arvi, district Wardha.
The estat described above has been given to you in lieu of you Rs. 8,700 due to you, subject to the condition that case your amount has not been paid to you on date 1 6 1944, you may fully enjoy the estate describe, (1) (1919) L.R. 46 I.A. 240.
(2) Cal.
118 above in any way you like from generation to generation ".
The question for our decision is: Does this document amount to an agreement to lease under section 2(7) of the Act ? In construing this document it is necessary to remember that it has been executed by laymen without legal assistance, and so it must be liberally construed without recourse to technical considerations.
The heading of the document, though relevant, would not determine its character.
It is true that an agreement would operate as a present demise although its terms may commence at a future date.
Similarly it may amount to a present demise even though parties may contemplate to execute a more formal document in future.
In considering the effect of the document we must enquire whether it contains unqualified and unconditional words of present demise and includes the essential terms of a lease.
Generally if rent is made payable under an agreement from the date of its execution or other specified date, it may be said to create a present demise.
Another relevant test is the intention to deliver possession.
If possession is given under an agreement and other terms of tenancy have been set out, then the agreement can be taken to be an agreement to lease.
As in the construction of other documents, so in the construction of an agreement to lease, regard must be had to all the relevant and material terms; and an attempt must be made to reconcile the relevant terms if possible and not to treat any of them as idle surplusage.
The learned Attorney General contends that this document is not a contingent grant of lease at all.
According to him it evidences a grant of lease subject to a condition and that shows that a present demise is itended by the parties.
He naturally relies upon the opening recitals of the document.
According to him, when the document says that defendant I has given to the respondent the land described below and that the respondent has become occupancy tenant of the same, it amounts to a clear term of present demise.
A similar recital is repeated in the latter part of the document where it is stated that the estate described 119 above has been given to the respondent in lieu of Rs. 8,700 due to her.
In our opinion, it would be unreasonable to construe these recitals by themselves, apart from, the other recitals in the document.
We cannot lose sight of the fact that the document expressly states that the respondent shall become the owner of the land from 1 6 1944 and that defendant I ' would have no title over it after that date.
This recital also is repeated in the latter part of the document; and it makes the intention of the parties clear that it is only if the amount of debt is not rapid by defendant I on the date specified that the agreement was to come into force.
In other words, reading the document as a whole it would be difficult to spell out a present or immediate demise of the occupancy rights in favour of the respondent.
In this connection the fact that the document is described as a receipt may to some extent be relevant.
It is clear that by executing this document the defendant wanted to comply with the respondent 's request for acknowledging the receipt of the amount coupled with the promise that the amount would be repaid on 1 6 1944.
The defendant also wanted to comply with the respondent 's demand that, if the amount was not repaid on the said date, he would convey the occupancy rights in his lands to her.
Besides, it is significant that the document does not refer to the payment of rent and does not contemplate the delivery of possession until 1 6 1944.
If the document had intended to convey immediately the occupancy rights to the respondent it would undoubtedly have referred to the delivery of possession and specified the rate at which, and the date from which. the rent had to be paid to her.
The stamp purchased for the execution of the document also incidentally shows that the document was intended to be a receipt and nothing more.
Under section 2 of the Central Provinces Land Revenue Act, 1917 (C. P. II of 1917) an agricultural year commences on the first day of June and it is from this date that the agreement would have taken effect if defendant I had not repaid the debt by then.
It is clear that the respondent was not intended to be treated as an 120 occupancy tenant between the date of the document and June 1, 1944.
During that period the agreement did not come into operation at all.
In other words, it is on the contingency of defendant 's failure to repay the amount on June 1, 1944, that the agreement was to take effect.
We have carefully considered the material terms of the document and we are satisfied that it was not intended to, and did not, effect an actual or present demise in favour of the respondent.
In our opinion, therefore, the High Court was right in holding that the document was not an agreement to lease under section 2(7) of the Act and so did not require registration.
We would now briefly refer to some of the decisions on which the learned Attorney General relied in support of his construction of the document.
In Purmananddas Jiwandas vs Dharsey Virji (1), the agreement between the parties had expressly provided that the lease in question was to commence from October 1, 1882, though the agreement was executed seven days later, that the rent was to commence from that day and the rent then due was to be paid by the next day.
It is in the light of these specific terms that the Bombay High Court held that the relevant words in the document operated as an actual demise.
None of these conditions is present in the document with which we are concerned.
Similarly in Pool vs Bentley (2), by the instrument in question, Poole had agreed to let unto Bentley, and Bentley had agreed to take, all that piece of land described for the term of 61 years at the yearly rent of pound 120 free and clear of all taxes, the said rent to be paid quarterly, the first quarter 's rent within 15 days after Michaelmas 1807, and that in consideration of the lease, Bentley had agreed within the space of four years to expend and lay out in 5 or more houses of a third rate or class of building 2000 and Poole had agreed to grant a lease or leases of the said land and premises as soon as the said 5 houses were covered in.
In dealing with the construction of this document Lord (1) Bom.
(2) ; ; 121 Ellenborough, C. J., observed that the rule to be collected from the relevant decisions cited before him was that the intention of the parties as described by the words of the instrument must govern the construction and that the intention of the parties to the document before him appeared to be that the tenant, who was to have spent so much capital upon the premises within the first four years of the term, should have a present legal interest in the term which was to be binding upon both parties; though, when certain progress was made in the building, a more formal lease or leases might be executed.
This decision only shows that if the intention is to effect a present demise the fact that a further formal document is contemplated by the parties would not detract from the said intention.
It would, however, be noticed that the document in that case contained a stipulation for the payment of the rent and the tenant was to be let into possession immediately.
This case also does not assist the appellant.
In Satyadhyantirtha Swami vs Raghunath Daji (1) the contract of lease was contained in two documents which showed that the lands were being cultivated by Appaji and Ravji who had signed the first document.
and that they were authorised to continue ' in occupation of the lands on terms mentioned in the first document.
The argument that a part of the agreement would not come into operation till some years later, it was held, did not operate to make the document other than a present demise.
It is difficult to appreciate how this decision can assist us in construing the present document.
In Balram vs Mahadeo (2) the Nagpur High Court was dealing with an instrument which purported to be a receipt and the terms of which seemed to contemplate the execution of a sale deed in respect of the properties covered by it.
Even so, the material clause was that "I it is agreed to give to you both the above fields in occupancy rights ".
It was held that, on a fair and reasonable construction, the document was (1) A.I.R. 1926 Bom.
(2) I.L.R. 16 122 intended to affect a transfer of the occupancy right in presenti and was as such an agreement to lease.
No doubt, as observed by Bose, J., " on a superficial view of the document it would not appear to be an agreement to lease.
But in construing a transaction one has to look beneath the verbiage and ascertain what are the real rights which are being transferred.
When that is done, we consider that this document is an agreement to lease despite the fact that it calls itself a receipt and speaks throughout of a sale ".
It is unnecessary to consider the merits of the conclusion rea ched by the Nagpur High Court in this case.
It would be enough to say that the said decision would not afford any assistance in construing the document before us.
Besides it is obvious that in construing documents, the usefulness of the precedents is usually of a limited character; after all courts have to consider the material and relevant terms of the document with which they are concerned; and it is on a fair and reasonable construction of the said terms that the nature and character of the transaction evidenced by it has to be determined.
In our opinion, the High Court was right in holding that the instrument (exhibit P 1) was not an agreement to lease under section 2(7) of the Act.
The result is the appeal fails and must be dismissed with costs.
Appeal dismissed.

Output:
A document purporting to be a receipt and bearing a four anna revenue stamp was executed by M in favour of the respondent and recited, inter alia, as follows: " I have this day given 108 to you the land described below which is owned by me.
Now you have become occupancy tenant of the same.
You may enjoy the same in any way you like from generation to generation.
My estate and heirs or myself shall have absolutely no right thereto.
You shall become the owner of the said land from date 1 6 44.
I will have absolutely no right thereto after the said date. .
The estate. has been given to you in lieu of your Rs. 8,700 due to you, subject to the condition that in case your amount has not been paid to you on date 1 6 44, You may fully enjoy the estate in any way you like from generation to generation.
" The respondent instituted a suit against M for the specific performance of a contract to lease alleging that under the document he had contracted to lease to her in perpetuity in occupancy right his lands in consideration of the debt of Rs. 8,7oo and as the amount was not paid within the due date, he was liable to perform and give effect to the said contract.
M contended, inter alia, that the document was an agreement to lease under section 2(7) of the Indian , and that as it was not registered it was inadmissible in evidence.
Held, that an agreement to lease under section 2(7) of the Regis tration Act, 1908, must be a document which effects an actual demise and operates as a lease.
An agreement between two parties which entitles one of them merely to claim the execution of a lease from the other without creating a pre sent and immediate demise in his favour is not an agreement to lease within the meaning of section 2(7) of the Act.
Held, further, that on a construction of the document in question, it was not intended to, and did not, effect an actual or present demise in favour of the respondent and consequently it was not an agreement to leaseunders.
2(7) Of the Act.
Accordingly, the document did not require registration and was admissible in evidence.
Hemanta Kumari Devi vs Midnapuy Zamindari Co., Ltd., (1919) L.R. 46 I.A. 240, relied on.
Panchanan Bose vs Chandya Charan Misra, Cal. 808, approved.
Narayanan Chetty vs Muthia Servai, Mad. 63, Purmananddas jiwandas vs Dharsey Kirji, Bom.
101, Balram vs Mahadeo, I.L.R. and Poole vs Bently, ; ; , distinguished.


Input:
Civil Appeal No. 974 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 25 6 1975 of the Gujarat High Court in Spl.
Civil Appln.
No. 1223/74).
D.V. Patel and S.S. Khanduja, for the Appellant.
885 U.R. Lalit, P.H. Parekh and Miss Manju jatley, for Respondent No. 1.
M.N. Shroff, for Respondent No. 2.
The Judgment of the Court was delivered by GUPTA, J.
The appellant was elected a councillor of Anjar municipality in Kutch District sometime in 1972, and later, President of the municipality.
On June 30, 1973, after he had been elected President, the appellant applied to the chief officer of the municipality for allotting to him a 'plot of land admeasuring 18 feet x 16 feet situate in the town of Anjar.
In his application the appellant stated that he wanted the plot for running a flour mill temporarily until he got a suitable plot from the Govern ment.
By his order dated July 5, 1973 the chief officer granted the request permitting the appellant to hold the land on payment of rent on condition, inter alia, that the land should be vacated whenever 'the municipality so or dered.
The first respondent who is a resident of Anjar applied to the Collector of Kutch under section 38 of the Gujarat Municipalities Act, 1963 (referred to as the Act hereinafter) for declaring that appellant 's office has "become vacant" as he has disabled himself from continuing as a councillor by taking lease of the land from the munici pality.
The Collector having heard the parties held that the appellant had got the land by misusing his position as President of the municipality incurring thereby the disqual ification referred to in section 38(1)(b)(i) of the Act which disabled him from continuing to be a councillor and declared that his office had become vacant.
The appellant before us preferred an appeal under section 38(4) of the Act to the State Government against the Collector 's order.
The State Government allowed the appeal and dismissed the application of the first respondent.
It was held that the land was allotted to the appellant in accordance with the by laws of the municipality and that there was no evidence of the appellant exerting any influence on the chief offi cer.
The first respondent challenged the order of the State Government by filing a writ petition in the Gujarat High Court.
The learned Judge of the High Court who heard the petition allowed the same, quashed the order of the State Government, and restored the order made by the Collector.
This appeal by special leave is directed against the judg ment of the High Court allowing the writ petition.
The appeal turns on section 38(1)(b)(i) of the Act which reads as follows: "38.
Disablilties from continuing as a councillor.
(1) If any councillor during the term for which he has been elected or nomi nated (a) x x x (b) acts as a councillor in any matter (i) in which he has directly or indirectly, by himself or his partner, any such share or interest as is de:scribed in clause (i), (ii), (iii), (v) or (vii) of sub section 886 (3) of section 11, whatever may be the value of such share or interest, or . . . . . he shall subject to the provisions of sub section (2) be disabled from continuing to be a councillor and 'his office shall become vacant.
" The provisions of sub section (2) are not relevant for the present purpose.
Section 11 of the Act enumerates, inter alia, the "gener al disqualifications for becoming a council lor" and specifies the cases to be treated as exceptions.
Section 11(2)(c) disqualifies a person from being a councillor "who, save as hereinafter provided, has directly, or indi rectly, by himself or his partner any share or interest in any work done by order of a munic ipality or in any contract or employment with or under or on behalf of a municipality '.
Sub section 3(A)(i) of section 11 which con tains an exception to this rule provides: "(3) A person shall not be deemed to have incurred disqualification (A) under clause (c) of sub section (2) by reason of his (i) having any share or interest in any lease, sale or purchase ;of any immovable property or in any agreement for the same." Thus a person is disqualified from becoming a councillor if he. has a direct or indirect interest in any contract with the municipality, but having any share or interest in any lease of immovable property or in any agreement for the same is not a disqualification.
Section 38(1)(b) (1),quoted above however provides that if any councillor during the term for which he has been elected "acts as a councillor" in acquiring a direct or indirect share or interest in any lease, he shall be disabled from continuing to be a council lor.
We have noted earlier that section 11(3)(A)(i) is an exception to.
the general disquali fication under section 11(2) (c), section 38(1) (b) (i) appears to be an exception to that exception.
This means that though having an inter est in any lease from municipality is not a disqualification for becoming or continuing as a councillor, if the council lor "acts as a councillor" in getting such lease from the municipality, he shall be 'disabled from continuing to be a councillor.
The president of the municipality being a council, lot, this provision also applies to him.
The ques tion therefore is whether the appellant in this case acted as a councillor in the matter of allotment of the land to him.
Section 275 of the Act authorises the municipality to make bylaws not inconsistent with the Act.
The Anjar municipality has framed by laws regulating the conditions on which permission may be given for the temporary occupa tion of public streets or land.
An English translation of by law 4 of these by laws which are in Gujarati reads: "Permission will be given for the, use of public road or land within the municipal limits but not of private land for temporary period for the matters mentioned in Schedule 1 hereto on advance payment of fee as stated in the Schedule.
887 Any person who intends to occupy such land shall have to make a written application to the chief officer.
But to give such permis sion or not shall be within the absolute discretion of the chief officer.
" Schedule 1 mentioned here prescribes the fees payable by the applicant on such permission being granted.
The chief officer in this case permitted the appellant to occupy the land in question in exercise of the power given to him by this by law.
The High Court found that the appellant acted as a councillor and President of the municipality in having the plot allotted to him mainly upon the provisions of sections 49 and 45 of the Act.
Section 49 defines the power and duties of the chief officer.
Sub section (1)(a) of 'sec tion 49 which is relevant in this context is as follows: "49.
Power and duties of chief officer. (1) The chief officer shall (a) subject to the general control of the president watch over the financial and executive administration of the municipality and perform all the duties and exercise all the powers specifically imposed or conferred upon him by, or delegated to him under, this Act.
" Section 45 enumerates the functions of the President; one of the functions is to exercise supervision and control over the acts and proceedings of all officers and servants of the municipality in matters of executive administration.
The High Court after referring to these provisions observed that the chief officer being under the general control of the president in all matters of executive ,administration, must have felt himself bound to grant the appellant s applica tion.
The High Court referred to an earlier application for the plot made by one Karan Kanji which the chief officer had rejected.
There is also a finding that by law 4 did not permit the use of the plot for the purpose for which the appellant had applied and that the chief officer went out of his way to help his president.
The High Court concluded that if the appellant had not been a councillor of the municipality and its president, his application would have met with the same fate as Karan Kanji 'section The legality of the chief officer 's order is not however an issue in this case, and the question whether or not the intended use of the plot by the appellant was beyond the scope of by law 4 need not detain us.
According to the High Court it was only because the appellant held the office of president 'of the municipality that the chief officer allowed his application.
This may or may not be true, but it is not a matter relevant to the real question that arises for consideration in this case.
Section 38(1)(b)(i) disables a councillor from continuing as such if he "acts as a councillor" in the matter of allotment of any land to himself, there is no bar in the Act to a coun cillor getting a lease of the land from the municipality as would appear from section 11(3)(A)(i).
It is only in a case where he acts as a councillor in getting the lease that he is disqualified.
There is nothing in the record of this case to show that the appellant had acted as a councillor to have the plot allotted to him 888 self. 'Even if the chief officer was influenced by the fact that the applicant before him was president of the munici pality, that would not attract section 38(1)(b)(i).
It is true that section 45 confers a general power of supervision and control on the president over the acts of all officers of the municipality and section 49, which enumerates the power and duties of chief officer, also makes him subject to the general control of the president in the discharge of these powers.
But the general power of supervision con ferred on the president does not, in our opinion,imply that in every case where he applies for a lease, which he is entitled to do as section 11(3)(A) (i) indicates, he should be deemed to have "acted" within the meaning of section 38(1)(b), otherwise, the president of a municipality under this Act, by virtue of his office would be disentitled altogether from applying for permission to use any land of the municipality.
If this were the correct position then there was no point in limiting the disqualification contemplated in section 38(1) (b) (i) to cases where the councillor acts as a councillor.
The words "acts as a councillor" cannot be treated as redundant.
In our view the councillor acts as a councillor within the 'meaning of section 38(1)(b) when he performs any of the functions which under the Act he is required to perform.
An allegation of misuse of his position against a councillor would not at tract the disability under section 38(1) (b)(i) unless it was shown furher that he has acted as a councillor in the matter.
In view of the clear provision of section 38(1)(b)(i) we do not find it possible to support the im pugned judgment.
The appeal is therefore allowed and the judgment of the High Court reversing the decision of the State Government is set aside.
In the circumstances of the case we make no order as to costs.
P.B.R. Appeal allowed.

Output:
Under section 38(1)(b)(i) of the Gujarat Municipalities Act, 1963, if a councillor.
during the term for which he has been elected or nominated, acts as a councillor in any matter in which he has directly or indirectly any share or interest, he shall, subject to the provisions of sub section 2, be disabled from continuing to be a councillor and his office shall become vacant.
While functioning as President of a municipality the appellant obtained a plot of land within the municipality for running a mill.
The Chief Officer who was the authority to grant such permission permitted the appellant to hold the plot on certain conditions.
The High Court in writ petition by the respondent held that the appellant was disqualified from continuing President of the municipality.
Allowing the appeal to this Court, HELD: (1) Section 38(1)(b)(i) disables a councillor from continuing as such if he, "acts as a councillor" in the matter of allotment of any land to himself; there is no bar in the Act to a councillor getting a lease of the land from the municipality as would appear from section 11(3)(A)(i).
It is only in a case where he acts as a councillor in getting the lease that he is disqualified.
There is nothing on the record to show that the appellant had acted as a councillor to have the plot allotted to himself.
[887 H] (2) Whether or not the Chief Officer was influenced by the fact that the applicant before him was President of the municipality, was not relevant to the question whether section 38(1)(b)(i) was attracted.
[888 A] (3) The general power of supervision conferred on the Presi dent does not imply that in every case where he applied for a lease, which he is entitled to do as section 11(3)(A)(i) indi cates, he should be deemed to have 'acted ' within the mean ing of section 38(1)(b)(i); otherwise the President of a munici pality under the Act, by virtue of his office would be disentitled altogether from applying for permission to use any land of the municipality.
If this were the correct position then there was no point in limiting the disqualifi cation contemplated in section 38(1)(b)(i) to cases where the councillor acts as a councillor.
The words 'acts as a councillor ' cannot be treated as redundant.
The councillor acts as a councillor within the meaning of section 38(1)(b)(i) when he performs any of the functions, which, under the Act, he is required to perform.
An allegation of misuse of his position against a councillor would not attract the disabil ity unders.
38(1)(b)(i) unless it was shown further that he has acted as a councillor in the matter.
[888 B D]