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149 and 167 of 1950.
758 Application under article 32 of the Constitution for a writ in the nature of habeas corpus I Bawa Shiv Charan Singh for the petitioner in petition No. 149.
Bindra for the petitioner in Petition No. 167.
B.K. Khanna, Advocate General of the Punjab, for the respondent in both the petitions.
M.C. Setalvad, Attorney General for India, for the Union of India (Intervener in Petition No. 149).
February 23.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
The earlier of the two petitions has been filed by one Ujagar Singh, under article 32 of the Constitution of India, for a writ of habeas corpus and for an order of release from detention.
The latter petition is a similar one by one Jagiit Singh.
In both the petitions, the respondent is the State of Punjab.
The orders of deten tion were made under the preventive Detention Act IV of 1950.
The petitions are not connected with each other, except that they raise the same grounds.
In petition No. 149 of 1950, Ujagar Singh was originally arrested and detained under the East punjab Public Safety Act on 29th September, 1948.He was released on 28th March, 1949, but on the same date, there was an internment order against him.
On 29th September, 1949, he was rearrested.
On 2nd March, 1950, an order of detention under the , was served on him, and on 3rd April, 1950, he was served with the grounds of detention dated 11th March, 1950.
Both in September, 1949, and in March, 1950, the ground alleged was ' 'You tried to create public disor der amongst tenants in Una Tehsil by circulating and dis tributing objectionable literature issued by underground communists.
" Additional grounds were furnished in July 1950.
In petition No. 167 of 1950, Jagjit Singh was arrested on 24th July, 1948.
under the provisions of the 759 Punjab Safety Act, 1947.
After the East Punjab Public Safety Act, 1949, came into force, a fresh detention order dated 14th May, 1949, was served on him and he continued to be kept in jail.
Grounds of detention were given to him on 7th September, 1949.
A fresh order of detention under the Pre ventive Detention Act (IV of 1950) dated 2nd March, 1950, was served on 7th March, 1950.
Grounds of detention dated 11th March, 1950, were served on him on 3rd April, 1950.
Both in September 1949 and April 1950, the same ground was given, i.e., "In pursuance of the policy of the Communist Party, you were engaged in preparing the masses for violent revolutionary campaign and attended secret party meetings to give effect to this programme.
" Additional or supplementary grounds were served on 5th August, 1950.
Several contentions were advanced on behalf of the petitioners challenging the legality of their detention and urging that as the detention was unlawful and the petition ers ' fundamental right of personal liberty had been in fringed, they should be set at liberty.
The points taken on their behalf can be briefly summarised as follows_ As the ground of detention now mentioned was the same as the ground specified in 1948 or 1949, i.e., months earlier under the Provincial Acts, the order of detention was made mechanical ly and was really mala fide in the sense that there is nothing to show that were was any fresh satisfaction on the part of the detaining authority that detention was necessary in the interests of public order.
Secondly, the grounds were not given "as soon as may be", which is required under section 7 of the Act; and as an unusually long period of time elapsed between the order of detention and the giving of the grounds, the detention must be held to be unlawful after the lapse of a reasonable time.
Thirdly, the grounds given originally were so vague that they could not be said to be grounds at all such as would enable the detenu to make any representation against the order.
Fourthly, supplemen tary grounds could not be furnished and should not be taken into account in considering whether the 760 original order was lawful, or whether the detention became unlawful after a particular period of time.
Two other points of a subsidiary nature were also raised, namely that the order was bad as the period of detention was not specified therein as appears to be required by section 12 and that the grounds given did not purport to state that the authority making the order was the Governor of the State.
There is no substance in the last two points.
Section 12 of the Act does not require that the period of detention should be specified in the order itself where the detention is with a view to preventing any person from acting in any manner prejudicial to the maintenance of public order.
The section itself provides that he can be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of detention.
Normally, the detention period shall not exceed three months, unless an Advisory Board reports before the expiration of the said period that there is in its opinion sufficient cause for such detention.
See arti cle 22, clause (4), sub clause (a) of the Constitution.
Under sub clause (7) (a) of the same article, Parliament may by law prescrib, the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law provid ing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4).
" Therefore, detention for more than three months can be justified either on the ground of an opinion of the Advisory Board sanctioning or warrant ing longer detention or on the ground that the detention is to secure the due maintenance of public order, in which case it cannot exceed one year in any event, as stated.
in sec tion 12 of the .
It is thus clear that the period is not to exceed three months generally, but may go up to one year in certain special cases.
In view of these provisions, the non specification of any definite period 761 in the detention order is not a material omission rendering the order itself invalid.
Under section 3 of the , the authority to make the order is the State Government.
Sec tion 166 (1) of the Constitution provides that all executive action of the Government of a State, shall be expressed to be taken in the name of the Governor.
The orders of deten tion expressly state that the Governor of Punjab was satis fied of their necessity and that they were made by his order.
The orders are signed no doubt by the Home Secre tary, but this is no defect.
The communication of the grounds need not be made directly by the authority making the order.
Section 7 does not require this.
The communica tion may be through recognized channels prescribed by the administrative rules of business.
Let us now turn our attention to the main contentions.
There is nothing strange or surprising in the fact that the same grounds have been repeated after the lapse of several months in both the cases, when it is remembered that the petitioners were under detention and in jail during the whole of the intervening period.
No fresh activities could be attributed to them.
There could only be a repetition of the original ground or grounds, whether good or bad.
It does not follow from this that the satisfaction of the detaining authority was purely mechanical and that the mind did not go with the pen.
The past conduct or antecedent history of a person can be taken into account when making a detention order, and, as a matter of fact, it is largely from prior events showing the tendencies or inclinations of the man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the authority satisfied himself that the original ground was still available and that there was need for detention on its basis, no mala fides can be attributed to the authority from this fact alone.
The Act does not fix the time within which the grounds should be furnished to the person detained.
762 It merely states that the communication must be "as soon as may be".
This means reasonable despatch and what is reasona ble must depend on the facts of each case.
No arbitrary time limit can be set down.
The delays in the communication of the grounds in the two petitions have been adequately explained by the Home Secretary who says in this affidavits that grounds had to be supplied to nearly 250 detenus and that the printing of the necessary forms occupied some time.
According to him, he made an order even on 11 3 1950 for the supply of the grounds.
The extreme vagueness of the grounds is alone left as the chief line of attack.
As stated already, the original ground communicated in Petition No. 149 of 1950 is "to create public disorder amongst tenants in the Tehsil by circulating and distributing objectionable literature issued by underground communists.
" In the other petition, the ground is "In pursuance of the policy of the Communist Party you were engaged in preparing the masses for violent revolu tionary campaign and attended secret party meetings to give effect to this programme.
" We shall leave aside for the moment the supplementary grounds furnished later.
There can be little doubt that in both the cases the grounds furnished in the first instance were highly vague.
If we had only Iswar Das 's case to go by, Petition No. 30 of 1950, such vagueness by itself would constitute a justifica tion for release of the petitioners.
Since the date of that decision, however.
this Court had to consider the question at great length in two cases from Bombay and Calcutta re spectively Cases Nos. 22 and 24 of 1950 where the subject of the meaning and scope of section 7 of the and article 22, sub clauses (5) and (6)of the Constitution of India.
came up for elaborate consideration.
The said cases were decided on 25th January, 1951, and we are now governed by the principles laid down in these judg ments.
It was held by a majority of the Judges in Case No. 22 of 1950 (1) State of Bombay vs Atmaram Sridhar Vaidya [1951] S.C.R. 167.
763 (a) that mere vagueness of grounds standing by itself and without leading to an inference of mala fides or lack of good faith is not a justiciable issue in a court of law for the necessity of making ' the order, inasmuch as the ground or grounds on which the order of detention was made is a matter for the subjective satisfaction of the Government or of the detaining authority; (b) that there is nothing in the Act to prevent particulars of the grounds being furnished to the detenu within a reasonable time, so that he may have the earliest opportunity of making a representation against the detention order what is reasonable time being dependent on the facts of each case; (c) that failure to furnish grounds with the speedy addition of such particulars as would enable the detenu to make a representation at the earliest opportunity against the detention order can be considered by a court of law as an.
invasion of a fundamen tal right or safeguard guaranteed by the Constitution, viz., being given the earliest opportunity to make a representa tion;and (d) that no new grounds could be supplied to strengthen or fortify the original order of detention.
We are not concerned so much with the earlier history of the detenus as with what happened to them under the Preven tive Detention Act, 1950.
OverloOking the fact that the ground mentioned In March 1950 was the same as that given in September 1949, and condoning the vagueness in the original ground furnished in both the cases to support the making Of the order, it is impossible to justify the delay of nearly four months in furnishing what have been called additional or supplementary grounds, Let us take up Petition No. 149 first.
In the grounds furnished in July 1950, there are several which do not apparently relate to the original ground.
"You were respon sible for hartal by labourers working on Bhalera Dam in October 1947". "You instigated labourers working in Nangal in 1948 to go on strike to secure the acceptance of their demands" "After release you absconded yourself from your village and 99 764 remained untraced for a considerable period" . "When you were re arrested on 29 9 1949, lot of objectionable communist literature was recovered from your personal search" are instances of new grounds, and they have to be eliminated therefore from consideration.
In Jagjit Singh 's petition No. 167 of 1950, the supplemental grounds, which are as many as ten in number, are dated 31 7 1950, but they were served on him on 5 8 1950, that is two days after he had prepared his petition to this court under article 32 of the Constitution.
The grounds may be taken as particulars of the general allegation made against him on 3 4 1950 when the original grounds of detention were served.
But the time factor to enable him to make a representation at the earliest opportunity was not borne in mind or adhered to.
In the affidavit of Shri Vishan Bhagwan, Home Secretary to the Punjab Government, dated 6th September, 1950, no explanation has been offered for this abnormal delay in the specification of the particulars.
This delay is very unfor tunate indeed.
But for its occurrence the petitioner would not have been able to urge that one of the valuable rights guaranteed to him by the Constitution has been violated.
It is not alleged b.y the Home Secretary that the detenu was furnished with these particulars when he was arrested and detained under the Provincial Act and that consequently it was considered unnecessary to give him the same particu lars once over.
On the other hand, the detenu 's complaint has throughout been that he was given no particulars at all till the 5th August, 1950.
As the petitioners were given only vague grounds which were not particularised or made specific so as to afford them the earliest opportunity of making representations against their detention orders, and their having been inex cusable delay in acquainting them with particulars of what was alleged.
the petitioners have to be released, the rules being made absolute.
Ordered accordingly.
765 PATANJALI SASTRI J.
I concur in the order proposed by my learned brother Chandrasekhara Aiyar J. DAS J.
In view of the majority decision in Case No. 22 of 1950 (The State of Bombay vs Atma Ram Sridhar Acharya), I concur in the order proposed by my learned brother.
Order accordingly.
Petition No. 194 of 1950 Agent for the petitioner: R.R. Biswas.
Agent for the intervener: P.A. Mehta.
Petition No. 167 of 1950 Agent for the petition: R.S. Narula.

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Non specification of any definite period in a detention order made under section 3 of the Preventive Detention Act, IV of 1950, is not a material omission rendering the order invalid in view of the provisions contained in clauses (4) (a) and (7) (a) of article 22 the Constitution and section 12 of the Act.
An order of detention which expressly states that the Government of the State concerned was satisfied of the necessity of 757 making such an order and that it was made by the order of the Governor is not defective merely because it is signed by Home Secretary.
Communication of the grounds of the order need not be made directly by the authority making the order but may be made through recognized channels prescribed by the adminis trative rules of business.
The past conduct or antecedent history of a person can be taken into account in making a detention order, and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the authority making an order is satisfied that the ground on which the detenue was detained on a former occasion is still available and that there was need for detention on its basis no mala fides can be attributed to the authority from the fact that the ground alleged for the second detention is the same as that of the first detention.
Whether grounds have been communicated "as soon as may be" must depend on the facts of each case.
No arbitrary time limit can be laid down.
The recent rulings of the Supreme Court establish (a) that mere vagueness of grounds standing by itself and with out leading to an inference of mala fides or lack of good faith is not a justiciable issue in a court of law for the necessity of making the order, inasmuch as the ground or grounds on which the order of detention was made is a matter for the subjective satisfaction of the Government or of the detaining authority; (b) that there is nothing in the Act to prevent particulars of the grounds being furnished to the detenu within a reasonable time so that he may have the earliest opportunity of making a representation against the detention order what is reasonable time being dependent on the facts of each case; (c) that failure to furnish grounds with the speedy addition of such particulars as would enable the detenu to make a representation at the earliest opportu nity against the detention order can be considered by a court of law as an invasion of a fundamental right or safe guard guaranteed by the Constitution, viz. being given the earliest opportunity to make a representation; and (d) that no new grounds could be supplied to strengthen or fortify the original order of detention.
Where the petitioners against whom detention orders were made were given only vague grounds and there was inex cusable delay of nearly 4 months in acquainting them of the particulars, held that their detention was illegal and they should be released.


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ivil Appeal No. 1170 of 1987.
1187 From the Judgment and Order dated 6.4.
1987 of the Delhi High Court in S.A.O. No. 71 of 1987.
Mr. Soli J. Sorabjee, Dr. Roxna Swamy and Bharat Sangal for the Appellant.
A.B. Rohtagi and Miss Bina Gupta for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
What is the true meaning of the expression 'tenant has before or after the commencement of the Act, built, acquired vacant possession of, or been allotted, a residence ' in terms of clause (h) of Section 14(1) of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act ') is the question raised in this appeal in the backdrop of interesting set of facts.
This is an appeal by the tenant against the judgment and order dated 6th April, 1987 of the Delhi High Court.
To the facts first, however, we must go to appreciate the point.
The appellant was at all material times since 1968 a tenant of the ground floor of premises No. 2/14, Kalkaji Extention, New Delhi.
The premises had been let out in April, 1968 to the appel lant at a monthly rent of Rs.340 per month by one Shri R.N. Kurra, deceased husband of respondent No. 1 and father of respondents Nos. 2 to 8.
The premises consist of two bed rooms, one drawing room, one dining room, one kitchen, two bath rooms and court yard at the back and porch in the front and one store and also one verandah.
It is the case of the appellant that originally the appellant had occupied these alongwith his wife, his aged mother, his son, daughter, brother and sister in law.
However, the brother and sister in law have since moved out and since 1979 the appellant 's wife Smt.
Santosh Raj was only staying with the family off and on for short periods usually when the appellant was on tour.
In the meantime on or about 20th July, 1977 the land lord filed eviction petition against the appellant on the ground of bona fide requirement.
On or about 25th September, 1978 the appellant 's wife Smt.
Santosh Raj was allotted Flat No. 93, Sadiq Nagar, i.e., a government quarter was given to her due to her employment as a teacher in the Government Girls Higher Secondary School No. III, Kalkaji, New Delhi.
She goes to live there leaving the rest of her family in the premises in dispute.
It is the case Of the appellant aS made out in appeal before us that one Shri P.R. Arya and his family were asked to share with the appellant 's wife on a joint allotment basis because it was not safe for a lady to live alone.
The case of the appellant was that the relation ship between the appellant and his wife Smt.
1188 Santosh Raj was not very good.
There were differences of opinion.
The appellant wanted the wife to give up her job and concentrate on the upbringing of the children.
The lady was reluctant.
She wanted to pursue her own avocation and career.
It is highlighted before us that in those circum stances the wife of appellant had applied for government accommodation and had gone to live in the said premises.
However, by force of circumstances as the children have grown up and daughters became of marriageable age she was induced to give up her job and allotment and she has come back to the husband 's premises being the premises in dis pute.
On 17th of March, 1986 respondent No. 1 filed in the Court of the Rent Controller, Delhi a petition on the ground that the wife of the appellant Smt.
Santosh Raj had been allotted on 25th of September, 1978 a residential quarter from the Directorate of Education, Delhi by virtue of her employment in Government Girls Higher Secondary School No. III, Kalkaji, New Delhi.
The appellant therefore came within the mischief of clause (h) of section 14(1) of the Act.
Written statement was duly filed in which it was stated that appellant had not acquired any house but that the landlord had tried to take advantage of the strained relationship between the tenant and his wife.
It was stated that the tenant had strained relationship with his wife and on ac count of the same only she had acquired a separate accommo dation and started staying there and got her ration card prepared at the same address but since the appellant had grown up children and remained on touring job; therefore, in order to provide the required protection and care, the wife of the appellant came to the house in question temporarily.
It was stated that this fact is well within the knowledge of the landlord and other members of the family.
It was denied that Smt.
Santosh Raj.
, the tenant had sublet the quarter No. 93.
On the other hand it was apparent that the depart ment had allotted the house to the wife of the appellant alongwith one other colleague jointly, who had now surren dered the same.
It was further stated that this joint allot ment had been made to the appellant 's wife on compassionate grounds.
The appellant was, therefore, not liable to be evicted from the premises in question it was asserted.
The case was proceeded under section 37 of the Act.
It was the contention of the appellant that he wanted to substantiate by production of evidence both oral and documentary that the flat allotted to his wife was on compassionate grounds in recognition of her special need to live apart from him.
It could not be an alternative accommodation for the appellant and his family.
It was further stated that the wife was allotted Flat No. 93, Sadiq Nagar on 25th September, 1978.
A few months later, the appellant 's wife was all alone in the flat and felt the need for some company, and she arranged one of her colleagues Mrs. P.R Arya alongwith her 1189 family should come to stay with her in this flat.
Mrs. Arya 's husband Mr. P.R. Arya was entitled to such accommoda tion in his own right as a teacher in Government Boys Higher Secondary School, Hari Nagar Ashram, New Delhi and accord ingly the appellant 's wife arranged to have the flat jointly allotted to herself and Mr. P.R. Arya.
Mr. P.R. Arya with his family entered the flat on or about 28th April, 1979 and continued to share the flat with the appellant 's wife for three years only.
In 1982 they moved out of the flat and since then the appellant 's wife has continued in the flat.
In 1978 when she first occupied the flat, the appellant 's wife had a separate ration card giving the flat as her address and had drawn ration on that basis and not with her family in the suit premises.
It was further stated that the appellant should have been permitted to adduce evidence both oral and documentary on all the above facts.
But the learned Additional Rent Controller directed that no evidence need be necessary as the matter could be decided on admitted facts.
In view of the provisions of law as the tenant had acquired vacant possession for residence became disentitled to retain the premises in question, he, therefore, passed an order of eviction.
Aggrieved by the aforesaid order the appellant went up in appeal being R.C.A. No. 957 of 1986.
The learned Rent Control Tribunal negatived the appellant 's plea that he should have been allowed to produce evidence in support of his averment of strained relations with his wife and that on account of these strained relations he could not in any way avail of the allotment of the flat to his wife.
The Rent Control Tribunal dismissed the appeal of the appellant.
Being aggrieved thereby the appellant approached the High Court in second appeal.
The High Court by its impugned judgment dated 6th of April, 1987 summarily rejected the appeal.
Being further aggrieved the appellant has come up to this Court as mentioned hereinbefore.
The short question is whether under clause (h) of Sec tion 14(1) of the Act allotment of a house to a wife who is a Government employee in all circumstances disentitled the tenant to retain the tenanted premises.
We are unable to accept the view of the Delhi High Court.
We have noted the provisions.
The purpose of the Act is to control rents and eviction, in other words, to control unreasonable evictions and to ensure that in an atmosphere of acute shortage of accommodation, there is proper enjoyment of available spaces by those who want and deserve.
In other words, to ensure that there is no unreasonable and unnecessary spaces in the hands of one tenant and 1190 other tenants and landlords ' need of occupation of spaces remains unsatisfied; clause (h) of Section 14(1) is an attempt in a way to ration out accommodation between tenants and landlords.
Looked at from that point of view unless acquisition of a premises or a flat or allotment of a prem ises or part of a premises by the tenant in which he has domain which he can reasonably and alternatively use as a substitute for the place he is using in the tenancy it cannot lead to a forfeiture of his right to occupy his tenanted premises.
The case would be otherwise, however, if a tenant comes into possession of a premises or is allotted a piece of residence or acquires vacant possession of the premises then such a tenant cannot prevent, if other condi tions are fulfilled under section 14(1)(h) of the Act being liable to forfeiture of his tenancy.
But counsel for the respondent heavily relied on a decision of this Court in Prem Chand and another vs Sher Singh, [1981] Delhi Rent Judgment 287.
That was a case under the Delhi Rent Control Act, 1958 and section 14(1)(h) of the Act came up for con sideration.
The respondent tenant was out of possession since October 9. 1976.
He was dispossessed during the pend ency of the appeal before the Rent Control Tribunal.
The respondent 's son was a business executive, who was, at one time, allotted a flat by his employers.
On December 12, 1980, the respondent 's wife purchased a flat at Saket from the Delhi Development Authority, at a cost of about Rs. 1,20,000.
The flat was available to the respondent though his explanation is that it had been let out by his wife to their son.
The respondent thereafter has now no case to be put back in possession of the flat in dispute.
Chandrachud, C.J. delivering the judgment of the Court observed that the Court had allowed the appellants to amend their applications for possession by pleading that the respondent had acquired possesion of a vacant residence within the meaning of sec tion 14(1)(h) of the Delhi Rent Control Act, 1958.
Having considered the averments of the parties on the point at issue it was held in that case that the respondent had through his wife acquired vacant possession of a residence in Delhi and in that view of the matter was held not enti tled to retain old tenanted premises.
Mr. Avadh Bihari Rohtagi, learned counsel strenuously contended before us that this proposition that acquisition of a flat by the wife was acquisition by the tenant and such acquisition in all circumstances would be within the mischief of section 14(1)(h) of the Act and would disentitle the tenant to retain his flat in question.
We are unable to accept this reading of the said Act.
The said decision rested on the facts of that case.
There in that case, this Court found that the respondent 's wife had purchased a flat in Saket and further found that the flat was available to the respondent.
In those circumstances it was held that there was acquisi tion of vacant possession of a residence and as such section 14(1)(h) of the Act would 1191 be attracted.
It cannot however be laid down as a general proposition of law that acquisition of flat by the wife in all circumstances would amount to acquisition of fiat by the tenant.
This position has been very properly highlighted in the decision of the Delhi High Court in Smt.
Revti Devi vs Kishan Lal, where Deshpandey, J. as the learned Chief Justice then was; held that the mere occupation of a new residence by the tenant without any legal right to do so would not be covered by proviso (h) to section 14(1) of the Delhi Rent Control Act.
If he goes to stay in the house of his wife, legally speak ing, he has no right as such to stay and can be turned out from the house at any time by its legal owner, namely, the wife.
There was no law according to which the husband and the wife could be deemed to be one person.
Therefore, where proviso (h) required that the tenant himself should acquire vacant possession of another residence before he can become liable to eviction, the effect of its language cannot be whittled down by arguing that proviso (h) would apply even if it is not the tenant himself but his wife or his other relation were to acquire such other residence.
Therefore, as a general proposition of law, the acquisition of other residence must be by the tenant himself before proviso (h) to sub section
(1) of section 14 of the Act would apply.
The learned Judge dealt with this and observed that in construing the above provision, it has to be borne in mind that the scheme of the Act had to be appreciated.
Tenancy is a right vested in the tenant.
The main purpose of the Act is the protection of tenants from eviction.
The various provisos to sub section
(1) of section 14 laid down the exception to this rule.
The learned Judge observed that when proviso (h) made tenant liable to eviction, its effect was to divest the tenant of his right of tenancy.
The intention of the legislature in divesting the tenant of his right was based upon the fact that the tenant had legally acquired another residence as of right.
There is no law according to which husband and wife could be deemed to be one person.
Therefore, the correct position must be that if a wife or a husband acquires a property and the other spouse if he/she is the tenant, has a legal right by virtue of such acquisition and stay there, then only can such acquisition or allotment of premises would disentitle or attract the provisions of cl.
(h) of section 14(1), otherwise the whole purpose would be defeated.
In other words if for all practical and real sense the tenant ac quired, built or was allotted another residence then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises.
That is the rationale behind the scheme.
Dr. Roxna Swamy drew our attention to the various as pects of the case where no proper opportunity was given to the tenant to show that in fact the husband would not and did not have any right at all to 1192 come to the premises allotted to the wife which was taken because of the strained relation of the husband and wife regarding the career of the wife.
In such a house the hus band will not come, he will certainly have no legal right or access for either staying or coming in the premises acquired by the wife.
If it defeats the husband 's tenancy then it would be mockery of justice.
Mr. Rohtagi tried to submit that there was no evidence before the trial court as well the High Court of the alleged strained relationship between the parties.
What is necessary is that unless there is a positive evidence, and here there is none, of acquisition of property prima facie in the name of the tenant or allotment of flat to the tenant, it cannot be said to have been ac quired by or allotted to some members of the tenant 's family other than the wife.
That cannot defeat the tenant 's right under clause (h) of section 14(1).
If there is such an acquisition by or on behalf of the tenant then the tenant and members of the tenant 's family would have dominion over the acquired residence.
Such acquisition would bring to the tenant the mischief of section 14(1)(h) of the Act.
In the case of this nature the appellate court had ample power in our opinion to have taken additional evidence.
Our attention was drawn to a decision of the learned Single Judge in the case of Raj Kumar vs Vedprakash, [ 1982] Jabalpur Law Jour nal 45 1.
Our attention was drawn at the bar that a judgment can be given on admission, that is to say, in this case that an allotment had been made in favour of the wife or the tenant.
Our attention was drawn to Mulla 's Code of Civil Procedure, Vol.
II, 14th Edition page 1148 which highlights that such oral admission must be definite and unambiguous and must be satisfactorily established.
In our opinion, from the fact that the wife of the tenant was allotted a tempo rary Government accommodation, it cannot be said that there was admission by virtue of which the 'tenant could lose his tenancy that the wife has acquired a house which is avail able to the husband over which the husband has a domain which could be a substitute to the tenanted premises.
In that view of the matter we are of the opinion that there was no admission at all.
Our attention was drawn to certain observations of Bhagwati, J., as the learned Chief Justice then was, in Phiroze Bamanji Desai vs Chandrakant M. Patel and others; , , where dealing with certain facts wheth er premises given on a licence could be considered in con sidering the bona fide requirement of the landlord to the allotment or acquisition.
In our opinion, this principle is wholly irrelevant for the point in controversy before this Court.
We are not concerned here whether there was ground for bona fide requirement of the landlord for which a suit had been filed and which is pending 1193 appeal.
This fact of acquisition or allotment of flat in the name of wife (which incidentally she has lost having given up her job) can be in certain circumstances a factor in judging the bona fide needs of the landlord; but the same indisputably cannot be any ground to evict the tenant on the ground that he has acquired vacant possession or been allot ted residence in terms of clause (h) of section 14(1).
Mr. Rohtagi drew our attention to certain observations of this Court in Gajanan Dattatraya vs Sherbanu Hosang Patel and others, [1976] 1 S.C.R. 535, where this Court held that the tenant 's liability to eviction arises when the fact of unlawful subletting is proved.
The fact that subsequently the other tenant had left the premises does not cure the mischief done.
Mr. Rohtagi placing this decision tried to urge before us that the allotment itself of a residence or acquisition of a residence by the tenant or the wife of the tenant was sufficient to attract clause (h) of section 14(1) of the Act.
The fact that subsequently the tenant had left the premises was irrelevant and did not affect the position.
It.was further submitted that the tenant had acquired a premises or allotted a residence which could be considered to be so in terms of clause (h) of section 14(1) but the flat in question allotted to the wife of the tenant could not by any stretch of imagination be considered to be a matrimonial home.
In England the rights of the spouses be husband or wife to the matrimonial home are now governed by the provisions of Matrimonial Homes Act, 1967.
Halsbury 's Laws of England, Fourth Edition, Vol.
22 page 650 deals with the rights of occupation in matrimonial home and paragraph 1047 deals with and provides that where one spouse is enti tled to occupy a dwelling house by virtue of any estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation, and the other spouse is not so entitled, then the spouse not so entitled has the certain rights (known as "rights of occupation") that is to say if in occupation, a right not to be evicted or excluded from the dwelling house or any part of it by the .other spouse except with the leave of the court given by an order if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling house.
But such rights are not granted in India though it may be that with change of situation and complex problems arising it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home, in case of marriage breaking up or in case of strained relationship between the husband and the wife.
We, however, cannot for the purpose of this case get much assistance from the prin ciple adumbrated in paragraph 1047 of Halsbury 's Laws of England.
In England cases before 1968 established that occupation of the matrimonial home by a tenant 's wife after the tenant had left counts as occupation by the tenant so as to preserve the 1194 statutory tenancy for as long as the marriage itself sub sists.
In those circumstances in England the landlord could not properly be granted an order for possession against the husband unless there were available grounds for possession against both husband and wife.
The tenant cannot abandon his rights while his wife remains; nor can the landlord evict the wife even if the tenant consents or purports to surren der his statutory tenancy.
This is the result of the case law in England and much social awareness and the case laws have been given statutory expression in the Matrimonial Homes Act 1967.
We have no such law.
The premises in ques tion which the wife occupied was indisputably not the matri monial home.
It is nobody 's case.
The husband would not, therefore, have any statutory or legal right against the Government to use and enjoy the allotted premises to the wife of the tenant because of her job.
Looked at from any point of view, the tenant cannot be made to lose his tenancy because of wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation.
In the premises we are unable to sustain the judgment under appeal.
To complete the story the wife of the tenant has resigned and has joined the husband at 2/14, Kalkaji Extension, New Delhi.
We hope there will be no more strained relationship in the family.
Hereafter they will live happily provided the landlord permits so.
We shall try to ensure that they so permit.
The appeal is allowed and the judgment and order of the High Court and the Courts below are set aside.
The eviction petition under section 14(1)(h) of the Delhi Rent Control Act, 1958 is dismissed.
In the facts and circumstances of the case the parties will bear and pay their own costs.
This, however, will not in any manner prejudice the fights, if any, of the parties in the other eviction petition on the ground of bona fide need of the landlord which we are told is still pending.
N.P.V. Appeal allowed.

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The premises in question had been let out in April, 1968 to the appellant at a monthly rent of Rs.340 by the husband of respondent No. 1 and the father of respondents Nos. 2 to 8.
In July, 1977 the landlord filed an eviction petition against the appellant on the ground of bona fide require ment.
In September, 1978 appellant 's wife was allotted a Government quarter due to her employment as a teacher In the Government school.
In March, 1986 the first respondent filed a petition before the Rent Controller that the wife of the appellant having been allotted a residential quarter came within the mischief of clause (h) of Section 14(1) of the Act and was, therefore, liable for eviction.
The appellant contended that he had not acquired any house and that the quarter in question was allotted to his wife on joint allotment basis on compassionate grounds and that the same had been surrendered and, therefore, the appellant was not liable to be evicted.
It was further contended that the allotted accommodation could not be treated as alternative accommodation for the appellant and his family.
The Additional Rent Controller held that having regard to the provisions of law, as the tenant had acquired vacant possession for residence, he became disentitled to retain the premises in question and, therefore, passed an order of eviction.
The Rent Control Tribunal dismissed the appeal of the appellant.
The High Court rejected the second appeal.
In the appeal to this Court, the question for considera tion was: whether under clause (h) of Section 14(1) of the Act allotment of a house to the wife, who was a Government employee, in all circumstances disentitled the tenant to retain the tenanted premises.
1185 Allowing the appeal, this Court, HELD: 1.
The premises in question which the wife occu pied was indisputably not the matrimonial home.
The husband would not, therefore, have any statutory or legal right against the Government to use and enjoy the allotted prem ises to the wife of the tenant because of her job.
The tenant cannot be made to lose his tenancy because of the wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation.
[1194C D] 2.1 The purpose of the Delhi Rent Control Act is to control rents and evictions; in other words, to control unreasonable evictions and to ensure that in an atmosphere of acute shortage of accommodation, there is proper enjoy ment of available spaces by those who want and deserve.
[1189G H] 2.2 Unless acquisition of a premises or allotment of a premises or a part of a premises by the tenant in which he has domain which he can reasonably and alternatively use as substitute for the place he is using in the tenancy, it cannot lead to forfeiture of his right to occupy his tenant ed premises.
The case would be otherwise, however, if a tenant comes into possession of a premises or is allotted a piece of residence or acquires vacant possession of the premises then such a tenant cannot prevent, if other condi tions are fulfilled under Section 14(1)(h) of the Act being liable to forfeiture of his tenancy.
[1190B C] 2.3 Tenancy is a right vested in the tenant.
The main purpose of the Act is the protection of tenants from evic tion.
The various provisos to sub section (1) of section 14 laid down the exception to this rule.
The intention of the Legislature in divesting the tenant of his right was based upon the fact that the tenant had legally acquired another residence as of right.
There is no law according to which husband and wife could be deemed to be one person.
[1191E F] 2.4 The acquisition of other residence must be by the tenant himself before proviso (h) of sub section
(1) of section 14 of the Act would apply.
[1191D] 2.5 If a wife or husband acquires a property and the other spouse if he/she is the tenant, has a legal right by virtue of such acquisition and stay there, then only can such acquisition or allotment of premises would disentitle or attract the provisions of cl.
(h) of section 14(1) of the Act, otherwise the whole purpose would be defeated.
That is the rationale behind the scheme.
[1191F G] 1186 2.6 From the fact that the wife of the tenant was allot ted a temporary Government accommodation, it cannot be said that there was admission by virtue of which the tenant could lose his tenancy that the wife has acquired a house which is available to the husband over which the husband has a domain which could be a substitute to the tenanted premises.
This fact of acquisition or allotment of fiat in the name of wife (which incidentally she has lost having given up the job) can be in certain circumstances a factor in judging the bona fide needs of the landlord; but the same indisputably cannot be any ground to evict the tenant on the ground that he has acquired vacant possession or allotted residence in terms of cl.
(h) of section 14(1).
[1192E F, 1193A B] 3.
The rights, if any, of the parties in the eviction petition on the ground of bona fide need of the landlord will not in any manner be prejudicially affected.
[1194F] [In England the rights of the spouses to the matrimonial home are now governed by the provisions of the Matrimonial Homes Act, 1967.
Where one spouse is entitled to occupy a dwelling house by virtue of any estate or interest or con tract or by virtue of any enactment giving him or her the right to remain in occupation, and the other spouse is not so entitled, then the spouse not so entitled has the certain rights (known as "rights of occupation"), that is to say, if in occupation, a right not to be evicted or excluded from the dwelling house or any part of it by the other spouse except with the leave of the court given by an order; if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling house.
[1193D G] Such rights are not granted in India.
But with the change of situation and complex problems arising, it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home, in case of marriage breaking up or in case of strained relationship between the husband and the wife.] [1193G] Prem Chand and another vs Sher Singh, [1981] Delhi Rent Judgment 287; Smt.
Revti Devi vs Kishan Lal, ; Phiroze Bamanji Desai vs Chandrakant M. Patel and others; , ; Galanan Dattatraya vs Sherbanu Hosang Patel and others, [1976] 1 SCR 535 and Halsbury 's Laws of England, Fourth Edition, Vol.
22 page 650, referred to.


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Civil Appeals Nos.
781 783 of 1962.
Appeals by special leave from the judgment and order January 6, 1961, of the Andhra Pradesh High Court in Civil Miscellaneous Petition Nos. 4672 to 4674 of 1960.
A. V. Viswanatha Sastri, M.S.K. Sastri and M.S. Narasimhan, for the appellant (in all the appeals).
Ranganadham Chetty and R.N. Sachthey, for the respondent (in all the appeals).
October 22, 1963.
The Judgment of the Court was delivered by AYYANGAR J.
The points raised in these three appeals which come before us by virtue of special leave under article 136 of the Constitution are somewhat 176 out of the ordinary and raise for consideration whether the common order passed by the High Court of Andhra Pradesh rejecting applications to review an earlier order by that court, is correct on the facts which we shall state presently.
The appellant M/s Thungabhadra Industries Ltd. are ' manufacturers of groundnut oil, part of which they convert for sale into hydrogenated oil while the rest is sold as ordinary oil.
Under the Madras General Sales Tax Act, hereinafter referred to as the Act, which has application to the State of Andhra Pradesh, while in regard to groundnuts the tax is levied at the point of purchase, groundnut oil is taxed at the point of sale.
The result of this feature naturally is that when a person purchases groundnut and converts the same into oil and sells the oil extracted he has to pay tax at both the points.
Rules have been framed in order to alleviate what might be considered a hardship by reason of this double levy.
Rule 5(k) of the Turnover & Assessment Rules provides: "5.
(k) in the case of a registered manufacturer of groundnut oil and cake, the amount which he is entitled to deduct from his gross turnover under rule 18 subject to the conditions specified in that rule".
and Rule 18 referred to reads: "18.
(1) Any dealer who manufactures groundnut oil and cake from groundnut and/or kernel purchased by him may, on application to the assessing authority having jurisdiction over the area in which he carries on his business, be registered as a manufacturer of ground nut oil and cake.
(2) Every such registered manufacturer of groundnut oil will be entitled to a deduction under clause (k) of sub rule (1) of rule 5 equal to the value of the groundnut and/or kernel, purchased by him and converted into 'oil and cake if he has paid the tax to the State on such purchases: 177 Provided that the amount for which the oil is sold is included in his net turnover: Provided further that the amount of the turn over in respect of which deduction is allowed shall not exceed the amount of the turnover attributable to the groundnut and/or kernel used in the manufacture of oil and included in the net turnover.
" The appellant is admittedly a manufacturer who is registered for the purposes of that rule.
In respect of the year 1949 50 the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under the rule in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase.
This claim was negatived by the Sales Tax authorities on the ground that "hydrogenated groundnut oil" was not "groundnut oil" within r. 18(2).
Having failed before the departmental authorities in getting its claim to deduction allowed, the appellant approached the High Court with a Tax Revision Case numbered 120 of 1953 on its file but the High Court, by its judgment dated February 11, 1955, upheld the view of the department.
An application was thereafter made to the High Court to grant a certificate of fitness under article 133(1) on the ground that substantial questions of law as to the interpretation of the General Sales Tax Act.
and the Rules made thereunder, as well as of certain other enactments which were relied upon in support of their claim by the appellants, arose for decision in the case.
The learned Judges by their order dated February 21, 1956 granted the certificate.
In view of the points arising in this appeal we consider it would be convenient to set out the text of this order: "This petition raises a question of general importance namely whether hydrogenated groundnut oil popularly known as Vanaspathi is ground 1 SCI/64 12 178 nut oil so as to enable the assessee to claim exemption under Rules 18(2) and 5(1) (g) of the Turnover and Assessment Rules framed by the Government in exercise of the powers conferred by Section 3 and sub rules 4 and 5 of the Madras General Sales Tax Act, 1939.
The answer to the question arising in this matter turns upon whether the chief characteristics of groundnut oil remain the same in spite of the chemical processes it undergoes, It also involves the interpretation of the notifications issued by the Government of India under the Essential Supplies (Temporary Powers) Act and certain provisions of the Vegetable Oils Products Control Order.
In these circumstances we think it a fit case for appeal to the Supreme Court.
Leave is therefore granted.
" Thereafter the appeal was entertained in this Court and numbered as Civil Appeal 498 of 1958, was finally disposed of on October 18, 1960 and is now reported as M/s Thungabhadra Industries Ltd. vs The Commercial lax Officer, Kumool(1).
Meanwhile in regard to the assessment of the three succeeding years 1950 51, 1951 52 and 1952 53, the same question as to whether "hydrogenated groundnut oil" was "groundnut oil" entitled to the deduction of the purchase turnover under r. 18(2) of the Turnover and Assessment Rules was raised and was decided against the appellant by the Sates Tax Officer.
This order was taken up in appeal to the Deputy Commissioner of Commercial Taxes by the appellant and as apparently the identical question was pending in the High Court in regard to the year 1949 50, the appellate authority awaited the decision of the High Court and when T.R.C. 120 of 1953 was decided against the appellant on February 11, 1955, disposed of the appeal against the appellant by its order dated April 5, 1955.
Thereafter the appellant approached the Sales Tax Appellate Tribunal but this was obviously a formality (1) ; 179 because the Tribunal were bound by the judgment of the High Court and the appeals were dismissed by order dated October 20, 1955.
Against the orders of the Sales Tax Appellate Tribunal the appellant preferred three Tax Revision Cases T.R.C. 75,76 and 77 of 1956 in regard to the three assessment years.
The learned Judges of the High Court dismissed the three Revision Cases on October 7, 1958 following their earlier decision in T.R.C. 120 of 1953 in regard to the assessment for the year 1949 50.
At this date, it would be noticed, the correctness of the decision of the High Court in T.R.C. 120 of 1953 was pending adjudication in this Court by virtue of the Certificate of fitness granted by the High Court under article 133(1).
Desiring to file an appeal to this Court against the judgment of the High Court in these three Tax Revision Cases as well, the appellant filed, on February 16, 1959, three miscellaneous petitions under article 133(1) of the Constitution praying for a certificate of fitness that the case involved substantial questions of law as to the interpretation of the Sales Tax Act and the Rules made thereunder etc.
The learned Judges, however, by their order dated September 4.
1959 dismissed the petition stating: "The judgment sought to be appealed against is one of affirmance.
We do not think that it involves any substantial question of law as to the interpretation of the Constitution; nor do we regard this as a fit case for appeal to the Supreme Court.
" The question that arises for consideration in these appeals is primarily whether this order dated September 4, 1959, is vitiated by error apparent on the face of the record.
How that matter becomes relevant is because the appellant filed three applications for review of this order under O. XLVII r. 1 of the Civil Procedure Code specifying this as the ground for relief.
These applications for review were filed on November 23, 1959, and apparently notice was issued to the respondent State Government and the petition for review came on for hearing on January 6, 1961.
180 On that date the learned Judges dismissed the said applications and assigned the following as the reasons for their order: "The only ground argued in support of these review petitions is that leave to appeal to the Supreme Court was granted in similar circumstances in regard to previous year and there was no reason why leave should have been refused in these cases.
We do not think that would furnish a sufficient ground for reviewing the order dismissing the petitions for leave to file an appeal t 0 the Supreme Court.
That apart, the Supreme Court was moved under Article 136 of the Constitution for special leave and that was dismissed may be on the ground that it was not flied in time.
In the circumstances, we think that our order dated 4.9.1959 dismissing S.C.C.M.Ps No. 4823, 4825 and 4827 of 1959 cannot be reviewed.
" The appellants thereupon made applications for special leave from this Court to challenge the correctness of this last order and the leave having been granted after notice to the respondent, the appeals are now before us.
Before dealing with the arguments addressed to us on behalf of the appellant it is necessary to advert to an objection raised by learned Counsel for the respondent urging that the special leave granted to the appellant should be revoked.
We declined to permit the respondent to urge any such argument in this case primarily for two reasons.
In the first place, the special leave was granted after notice to the respondent and therefore after hearing the respondent as to any objection to the maintainability of the appeal or to the granting of special leave.
In the circumstances, any ground in relation to these matters should have been urged at that stage and except possibly in some extraordinary cases where the ground urged happens to arise subsequent to the grant of the special leave or where it could not be ascertained by the respondent at that date notwithstanding, the exercise of due care; except in such 181 circumstances this Court will not permit the respondent to urge any argument regarding the correctness of the order of the Court granting special leave.
Indeed, the very object of issuing notice to the respondent before the grant of leave is to ensure that the latter is afforded an opportunity to bring to the notice of the Court any grounds upon which leave should be refused and the purpose of the rule would be frustrated if the respondent were permitted to urge at a later stage at the stage of the hearing of the appeal and long after the appellant has incurred all the costs that the leave granted after notice to him should be revoked on a ground which was available to him when the application for special leave was heard.
This apart, even the statement of the case filed on behalf of the respondent does not disclose any ground upon which the leave granted should be revoked: nor, of course, does it make any prayer seeking such relief.
One of the objects which the statement of the case is designed to achieve is manifestly that no party shall be taken by surprise at the hearing and this is ensured by the provision in O. XIX r. 4 of the Supreme Court Rules reading: "No party shall, without the leave of the Court, rely at the hearing on any grounds not specified in the Statement of the Case filed by him.
" Nor, of course, was there any contention that the ground that he proposed to submit came into existence after the filing of the statement of case.
It was in these circumstances that we declined to permit the respondent to develop an argument to persuade us to hold that the leave granted by this Court should be revoked, though we might add that the matter mentioned by learned Counsel for the respondent in this respect would not, even if urged at the hearing of the special leave petition, have materially assisted him in resisting the grant of special leave.
The point he desired to urge was that in the petition for special leave the appellant had averred that the decision of this Court reversing the judgment of the High Court in T.R.C. 120 of 1953 had been 182 brought to the notice of the High Court, but that this statement must be erroneous or untrue for two reasons: (1) This is not referred to in the order now under appeal, and (2) the decision of this Court was not reported in any of the law reports official or unofficial till long after January 1961 when the petition for review was heard.
It is manifest that neither of the two circumstances would by itself prove the untruth of the averment in the special leave petition.
The learned Judges might well have thought that the decision had no material bearing on the only point that arose for consideration before them, viz., whether their order of September 1959 was or was not vitiated by error of the sort which brought it within O. XLVII.
r. 1 of Civil Procedure Code.
It is obvious that so viewed, it would not have any relevance.
As regards the other point, the appellant did not have need to wait for a report of the case in the law reports but might very well have produced a copy of the judgment of this Court and being a party to the proceeding here it is improbable that it had not a copy, so, that its statement that it drew the attention of the Court to the decision is not proved to be false by the decision not being reported till long after January, 1961.
The oral application for revoking the leave granted is therefore rejected as entirely devoid of substance.
We shall next proceed to deal with the merits of the appeals.
Before doing so however, it is necessary to advert to a circumstance which the learned Judges considered a proper reason for rejecting the petition for review.
This arises out of the second of the grounds assigned by the learned Judges in their order dated January 6, 1961, refusing to grant the review.
This may be quoted in their own words: "That apart, the Supreme Court was moved under article 136 of the Constitution for special leave and that was dismissed, may be on the ground that it was not filed in time.
" 183 The facts in relation to this matter might now be stated.
As already seen, the applications for reviewing the order dated September 4, 1959, refusing the certificates were filed on November 23, 1959.
During the pendency of those review applications the appellant filed, on November 30, 1959, petitions seeking special leave of this Court under article 136 of the Constitution but those petitions were filed beyond the period of limitation prescribed by the Rules.
An application was therefore filed along with the special leave petitions seeking condonation of delay in the filing of the petitions.
The petitions and the applications for condonation of delay came on together for hearing and this Court refused to condone the delay, so that the petitions for special leave never legally came on the file of this Court.
O. XLVII r. 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred.
" In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII r. 1(1) did not stand in the way of the petition for review being entertained.
Learned Counsel for the respondent did not contest this position.
Nor could we read the judgment of the High Court as rejecting the petition for review on that ground.
The crucial date for determining whether or not the 'terms of O. XLVII.
r.1 (1) are satisfied is the date when the application for review is filed.
If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end.
The next question is as regards the effect of the refusal of this court to condone the delay in filing the petition for special leave.
Here again, it 184 was not contended that the refusal of this Court to entertain the petition for special leave on the grounds just now stated was a bar to the jurisdiction or powers of the Court hearing the review petition.
This position was not contested by the learned Advocate for the respondent either.
In these circumstances, we are unable to agree with the learned Judges of the High Court that the refusal by this Court to condone the delay in filing the petition for special leave was a circumstance which could either bar the jurisdiction of the High Court to decide the petition for review or even could be a relevant matter to be taken into account in deciding it.
If therefore their original order dated September 4, 1959, was vitiated by an error apparent on the face of the record, the failure of the special leave petition to be entertained in this Court in the circumstances in which it occurred, could not be any ground either of itself or taken along with others to reject the application for review.
We consider it would be convenient to consider the first part of the order of the High Court now under appeal after examining the principal question whether the order of September, 1959, rejecting the appellant 's petition for a certificate is vitiated by error apparent on the record.
If one analysed that order only one reason was given for the rejection of the certificate of fitness.
No doubt, in the first sentence of their order they stated that the judgment was one of affirmance, but that was merely preliminary to what followed where they recorded that the certificate was refused for the reason that the case did not involve any substantial question of law regarding the interpretation of the Constitution.
The preliminary statement that their judgment was one of affirmance would, however, seem to show that what the learned Judges had in mind were the terms of article 133 of the Constitution where alone as distinct from article 132 there is reference to a judgment of affirmance, though per incuriam they reproduced the terms of article 132(1).
As it was the case of no 185 party that any question of interpretation of the Constitution was involved, the reference to "the substantial question of law relating to the interpretation of the Constitution" must obviously have been a mistake for a substantial question of law arising in the appeal.
Though learned Counsel for the appellant stressed this ground in the order of September, 1959 as itself disclosing an error apparent on the face of the record or was at least, ,indicative that the learned Judges did not apply their minds to the consideration of the question arising in the application for a certificate of fitness, we shall proceed on the basis that this was merely a clerical error in their order and that the learned Judges had really in mind the terms of article 133(1) which had been invoked by the appellants in their application for the certificate.
On the basis that the words in the order of September, 1959 referring to a substantial question of law as to the interpretation of the Constitution were really meant to say that no substantial question of law was involved in the appeal sought to be filed in this Court how does the matter stand ? There was practically no question of fact that fell to be decided in T.R.Cs. 75 to 77 of 1956 and the sole question related to the claim to deduct the value of the groundnut on which purchase tax had been paid and which had been converted into hydrogenated oil which had been sold and which had been included in the appellant 's turnover.
In fact, these T.R.Cs. were decided by the High Court not independently on a consideration of any particular facts which arose in them, but by following the decision of the High Court in T.R.C. 120 of 1953 which had accepted the construction which the departmental authorities had placed on r. 18(2) of the Turnover & Assessment Rules.
The substantial points of law which were claimed to arise in the appeal had been set out in extension the petition seeking the certificate and, in fact, they were practically a reproduction of the contents of the earlier petition seeking a certificate against the decision in T.R.C. 120 of 1953.
The learned Judges and the learned C.J. was a party 186 to the earlier decision and to the grant of the certificate of fitness on that occasion considered these points and had stated as their opinion that substantial questions of law of general importance were involved in the case and they had given expression to these views in a judgment which we have reproduced earlier.
What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record".
The fact that on the earlier occasion the court held on an 'identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous.
Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent".
A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected.
but lies only for patent error.
We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.
No questions of fact were involved in the decision of the High Court in T.R.Cs. 75 to 77 of 1956.
The entire controversy turned on the proper interpretation of r. 18(1) of the turnover & Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of February 1956 nor could it be doubted or disputed that these were substantial questions of law.
In the circumstances therefore, the submission of the appellant that the 187 order of September 1959 was vitiated by "error apparent ' ' of the kind envisaged by O. XLVII r. 1, Civil Procedure Code when it stated that "no substantial question of law arose" appears to us to be clearly well founded.
Indeed, learned Counsel for the respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error.
He, however, submitted that this Court should have regard not to whether the earlier order was so vitiated or not but to the grounds which were urged by the appellant at the hearing of the application for review and that if at that stage the point in the form in which we have just now expressed was not urged, this Court would not interfere with the order rejecting the application for review.
He pointed out that at the stage of the arguments on the application for review the only ground which was urged before the Court, as shown by the judgment of the Court, was that the order of September, 1959 was erroneous for the reason that a certificate had been granted on a previous occasion.
We have extracted the text of this order of January, 1961 in which this argument is noticed and it is stated that it was the only point urged before the Court.
The question then arises as to what is meant by "in similar circumstances in regard to a previous year".
Learned Counsel for the respondent submits that we should understand these words to mean that the appellant relied on the order dated February 21, 1956, granting the certificate of fitness in regard to the decision of the High Court in T.R.C. 120 of 1953 solely as some sort of precedent and no more.
On that basis learned Counsel strenuously contended that the mere fact that in regard to an earlier year a certificate was granted would not by itself render an order refusing a certificate in a later year erroneous on the ground of patent error.
We have already dealt with this aspect of the matter.
We do not, however, agree that this is the proper construction of the argument that they rejected.
The order dated February 21, 1956, in relation to the previous year 188 was placed before the court and was relied on not as a binding precedent to be followed but as setting out the particular substantial questions of law that arose for decision in the appeals, and the attention of the Court was drawn to the terms of the previous order with a view to point out the failure to appreciate the existence of these questions and to make out that the statement in the order of September, 1959 that no substantial question of law was involved in the appeals was erroneous on the face of it.
This is made perfectly clear by the contents of the petition for review where the aspect we have just now set out is enunciated.
The earlier order being of the same Court and of a Bench composed in part of the same Judges, the earlier order was referred to as a convenient summary of the various points of law that arose for the purpose of bringing to the notice of the Court the error which it committed in stating that no substantial question of law arose in the appeals.
If by the first sentence the learned Judges meant that the contention which they were called upon to consider was directed to claim the previous order of 1956 as a binding precedent, they failed to appreciate the substance of the appellant 's argument.
If, however, they meant that the matters set out by them in their order granting a certificate in relation to their decision in T.R.C. 120 of 1953 were not also involved in their judgment in T.R.Cs. 75 to 77 they were in error, for it is the case of no one that the questions of law involved were not identical.
If, besides, they meant to say that these were not substantial questions of law within article 133(1), they were again guilty of error.
The reasoning, therefore, of the learned Judges in the order now under appeal, is no ground for rejecting the applications to review their orders of September, 1959.
We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed.
We only desire to add that in so holding we have not in any manner taken into account or been influenced by the view expressed by this Court in Tungabhadra 189 Industries Ltd. vs The Commercial Tax Officer, Kurnool(1) regarding the construction of Rule 18(2) of the Turnover & Assessment Rules, since that decision is wholly irrelevant for considering the correctness of the order rejecting the applications for review which is the only question for decision in these appeals.
Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeal were allowed we should make no direction as regards costs against his client.
The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T.R.Cs 75, 76 and 77 really depended on the correct construction of r. 18(2) of the Turnover & Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there whether it included "hydrogenated oil".
This Court in its judgment in M/s Tungabhadra Industries Ltd. vs The Commercial Tax Officer, Kurnool(1) pronounced on the proper construction of the word 'groundnut oil ' occurring in r. 1 8 of the Turnover & Assessment Rules as they then stood.
The assessment proceedings for 1950 51, 1951 52 and 1952 53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court.
In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this Court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice.
That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought.
Of course, if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled (1) ; 190 to collect the tax as assessed and as decided in its favour by the High Court.
But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of it bright to costs.
In the result the appeal is allowed and the common judgment of the High Court in the three appeals is reversed and the petitions for review C.M.Ps 4672, 4673 and 4674 of 1959 on the file of the High Court are allowed with costs here and in the High Court one set of hearing fees.
Appeal allowed.

Output:
In respect of the assessment year 1949 50, the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under r. 18 of the Turnover and Assessment Rules in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase.
The sales tax authorities rejected the claim on the ground that hydrogenated groundnut oil was not groundnut oil within that rule.
This view was upheld by the High Court on February 11, 1955, in the Tax Revision Case No. 120 of 1953 filed by the appellant, but, on application, the High Court granted a certificate of fitness under article 133(1) of the Constitution of India on the ground that substantial questions of law arose for decision in the case.
For the assessment years 1950 51, 1951 52 and 1952 53, the same question as to whether hydrogenated groundnut oil was raised and decided against the appellant by the sales tax authorities and the High Court.
The appellant then applied for a certificate of fitness under article 133(1) of the Constitution, but the High Court dismissed the petition on September 4, 1959, stating: "The judgment sought to 175 be appealed against is one of affirmance.
We do not think that it involves any substantial question of law . . . nor do we regard this as a fit case for appeal to the Supreme Court.
" On November 23, 1959, applications for review were filed under 0.
47, r. 1, of the Code of Civil Procedure but they were dismissed.
The appellant then applied for special leave under article 136 of the Constitution against the orders dismissing the applications for review and leave was granted after notice to the respondent.
When the appeal came on for hearing in the Supreme Court, the respondent raised a preliminary objection that the special leave granted to the appellant should be revoked.
The grounds for revoking the special leave were not urged by the respondent at the time of the hearing of the applications under article 136, nor were they set out in the statement of case filed by the respondent under O.XVIII of the Supreme Court Rules, 1950.
Held (i) that where notice is given to the respondent before the hearing of the application for grant of special leave, no objection to the maintainability of the appeal or to the granting of special leave would be permitted to be urged at any stage after the grant of it, except possibly where the ground urged happens to arise subsequent to the grant of leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care.
(ii) that the statement in the order dated September 4, 1959, that the case did not involve any substantial question of law,was an "error apparent on the face of the record" within the meaning of 0.
47, r. 1, of the Code of Civil Procedure inasmuch as this was a case where without any elaborate argument one could point to the error and say that here was a substantial point of law which stared in the face.