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270 of 1955.
Under Article 32 of the Constitution of India for a Writ in the nature of Habeas Corpus.
Hemendra Shah, J. B. Dadachanji and Rajinder Narain, for the petitioner.
M. C. Setalvad, Attorney General of India, C. K. Daphtary, Solicitor General of India, (B. Sen and R. H. Dhebar, with them) for the respondent No. 1. 890 1955 October 14.
DAS ACTG.
This rule was issued on a petition filed under article 32 of the Constitution by one Purshottam Govindji Halai, a citizen of India, calling upon the respondents to show cause why a writ in the nature of a writ of habeas corpus should not be issued by this Court directing the Superintendent, House of Correction, Byculla, being the second respondent herein., to produce before this Court one Govindji Deoji Halai, the father of the petitioner, who is also a citizen of India., for the purpose of being released forthwith.
The facts which are not in dispute may be shortly stated as follows.
The said Govindji Deoji Halai (hereinafter referred to as the "assessee") is the sole proprietor of a business carried on under the name and style of Indestro Sales and Service Co. at No. 50 52, Lohar Chawl Street in the City of Bombay.
Two private limited companies, namely, Indestro India Ltd., and Indestro Eastern Ltd., also carry on business and have their respective offices in the same premises.
The assessee is said to have some connection with the two companies the nature of which, however, is not quite clear on the record before us.
In respect of his own business of Indestro Sales and Service Co., the assessee was assessed to income tax for the years 1943 44 to 1947 1948 and 1951 1952 by the Third Income tax Officer, C 1 Ward, Bombay, at and for Rs. 40,178 4 0.
The assessee not having paid up the assessed amount of tax the Income tax Officer on the 10th April 1951 issued to the ' Additional Collector of Bombay, the first respondent herein, a recovery certificate ,under section 46(2) of the Income tax Act.
It may here be mentioned that the Indestro Eastern, Ltd., was also assessed to income tax at and for Rs. 1,92,000 and a recovery certificate was also issued by the Income tax Officer to the Additional Collector of Bombay.
On the 1st February, 1954 the Additional Collector issued a notice of demand on the assessee for payment of the assessed amount of tax.
No payment 891 having been made, the Additional Collector attached the goodwill and tenancy rights in the said premises by a warrant of attachment issued on the 24th March 1954.
The sale proclamation was issued on the 15th January 1955.
The sale was held on the 25th February 1955 fetching a price of Rs. 33,000 and it was confirmed on the 30th March 1955.
The sale proceeds not being sufficient to satisfy the assessed tax the Additional Collector on the 7th June 1955 issued a notice under section 13 of the Bombay City Land Revenue Act, 1876, requiring the assessee to appear before him in person on the 16th June 1955 and show cause why he, the assessee, should not be apprehended and confined to civil jail in satisfaction of the said certified demand.
The assessee did not appear in person on the appointed day but on the next day, the 17th June 1955, an Advocate acting on behalf of the assessee wrote a letter to the Additional Collector purporting to show cause why the assessee should not be arrested and sent to the civil jail.
The contentions put forward on behalf of the assessee not being considered satisfactory the Additional Collector on the 30th June 1955 issued a warrant for the arrest of the assessee under section 13 of the Bombay City Land Revenue Act, 1876.
The assessee was actually arrested on the 1st July 1955.
On the 8th July 1955 an application was made by the present petitioner to the Bombay High Court under article 226 complaining of the arrest of his father, the assessee, and praying for a writ in the nature of a writ of habeas corpus for the production and release of the assessee.
A rule was issued by the High Court but eventually on the 24th August 1955 the High Court (Chagla, C.J. and Desai, J.) discharged the rule.
No application was made to the High Court for leave to appeal to this Court from the decision of that High Court but on the 2nd September 1955 the present petition was filed in this Court under article 32 of the Constitution for the relief hereinbefore mentioned.
On the 7th September 1955 a rule was issued by this Court on that petition subject to the question of its maintainability in view of the dismissal by the 113 892 High Court of the petition under article 226 from which no leave to appeal to this Court had been sought or obtained.
The rule has now come up before us for hearing.
In the view we have taken about the merits of the petition it is not necessary for us to consider the question of its maintainability after the dismissal of the petition under article 226 or to make any pronouncement, on this occasion, on the scope and ambit of article 32 of the Constitution in that situation.
The principal contentions urged by the learned Advocate appearing for the petitioner are as follows, namely, (a) that section 46(2) of the Indian Income tax Act under which the Income tax Officer issued the recovery certificate to the Additional Collector of Bombay is void under article 13(1) of the Constitution in that the same offends article 22(1) and (2), article 21 and article 14 of the Constitution; (b) that section 13 of the Bombay City Land Revenue Act, 1876 under which the warrant of arrest was issued by the Additional Collector is void under article 13 (1) of the Constitution as the same is repugnant to article 14 of the Constitution.
We proceed to deal with the objections seriatim.
(a): Section 46(2) of the Indian Income tax Act which is impugned before us runs as follows: "46.
(1). . . . . . . . (2) The Income tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue: Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 (Act V of 1908), a Civil Court has for the purpose of the recovery of an amount due under a decree.
The first objection to the above sub section is that it 893 contravenes the fundamental rights guaranteed by clauses (1) and (2) of article 22.
In view of the decision of this Court in the State of Punjab vs Ajaib Singh & Another(1) this objection has not been pressed before us and we need say no more about it.
The second objection to section 46(2) of the Indian Income tax Act is that it is violative of article 21.
Article 21 guarantees that no person shall be deprived of his personal liberty except in accordance with procedure established by law.
In this case the assessee has been arrested and is being detained in jail in execution of a warrant of arrest issued under section 13 of the Bombay City Land Revenue Act, 1876 for the recovery of the demand certified under section 46(2) of the Indian Income tax Act.
As long as those sec tions stand no complaint can be made of infringement of article 21, for those two sections constitute a procedure established by law.
It is only if those sections are void that the question of violation of the fundamental right under article 21 can arise at all.
We have, therefore, to pass on to the third objection to section 46(2) founded on article 14 of the Constitution which alone has been strenuously insisted on before us by learned counsel for the petitioner.
Article 14 is invoked in two ways.
It is pointed out that the first part of section 46(2) provides that the Collector, on receipt of a certificate from the Income tax Officer, shall proceed to recover from the defaulting assessee the amount specified therein as if it were an arrear of land revenue.
It is next said that the proviso to the sub section invests the Collector with all the powers a Civil Court has under the Code of Civil Procedure for the purpose of the recovery of the amount due under a decree.
It is submitted that section 46(2) provides for two different and alternative methods of recovery of the dues and clothes the Collector with the power to apply either of the two methods, that is to say, he may issue a warrant of arrest under section 13 of the Bombay City Land Revenue Act, 1876 against one defaulter and keep him in detention for a period which may (1) ; 894 work out to be much longer than six months and he may proceed against another defaulter under the Code of Civil Procedure and arrest and detain him for the maximum period of six months.
The powers that are thus conferred on the Collector by section 46(2) are unfettered and unguided and enable the Collector, at his will, to discriminate between two defaulters who are similarly situated and thereby violate the behests of the equal protection clause of the Constitution.
This argument appears to us to be founded on a misapprehension about the true meaning of section 46(2).
On a proper reading, that subsection does not prescribe two alternative modes of procedure at all.
All that the sub section directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers a Civil Court has under the Code.
The sub section does not prescribe two separate procedures.
The statement to the contrary in the judgment of the Bombay High Court in Shaik Ali Ahmed vs Collector of Bombay(1) does not appear to us to be correct.
In our opinion the proviso does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub section (2) of section 46.
Viewed in this light, there is no question of the possibility of any discrimination at all.
This part of the argument cannot, therefore, be accepted.
The other way in which the protection of article 14 is invoked is founded on a comparison of the provisions of the different laws adopted by the different States for the recovery of land revenue.
Section46(2) of the Indian Income tax Act requires the Collector, on receipt of the requisite certificate from the Incometax Officer, to proceed to recover from the assessee the amount specified in the certificate as if it were an (1) I.L.R. , 155. 895 arrear of land revenue.
This means that the Collector must take such proceedings as he would have done if he were engaged in recovering land revenue.
Thus a Collector in the City of Bombay in recovering the certified amount of income tax must proceed under Ejection 13 of the Bombay City Land Revenue Act, 1876 (Bombay Act II of 1876) and arrest and detain him far the period therein mentioned which, prior to the 8th October 1954, might have worked out to a period much longer than six months.
On the other hand, the defaulting assessee in all other parts of the State of Bombay has to be proceeded against under section 157 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879) under which he cannot be detained for more than the period limited by the Code of Civil Procedure for the detention of a judgment debtor in execution of a decree for an equal amount of money.
So, even in one State there were two procedures to which defaulting assessees could be subjected according as they were in or outside the City of Bombay.
A Collector in the State of Madras in recovering the certified amount of income tax has to proceed under section 48 of the Madras Revenue Recovery Act, 1864 (Madras Act II of 1864).
When the Collector finds that the certified amount cannot be liquidated by the sale of the property of the defaulting assessee and the Collector has reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade payment, the Collector may, under section 48 of that Act, cause the arrest and imprisonment of the defaulter, not being a female.
But that section goes on to say that no person shall be imprisoned for a longer period than two years or for a longer period than six months if the arrear does not exceed Rs. 500 or for a longer period than three months if the arrear does not exceed Rs. 50.
A Collector in West Bengal proceeding to recover the certified amount under the Bengal Public Demands Recovery Act, 1913 (Bengal Act III of 1913) cannot, under section 31 of that Act, direct the detention of the defaulting assessee in prison for more than six months if the amount is more 896 than Rs. 50 or in other cases for more than six weeks.
The defaulter in the Punjab cannot, under section 69 of the Punjab Land Revenue Act, 1887 (Punjab Act XXVII of 1887), be kept in civil jail for more than one month.
Section 148 of the U. P. Land Revenue Act) 1901 (U.P. Act III of 1901) limits the period of detention to 15 days and also exempts many persons, e.g. Talukdars and women, from any imprisonment.
The Assam Land and Revenue Regulation, 1886 (Reg.
I of 1886) does not insist on imprisonment at all.
A cursory perusal of the provisions of the different Acts referred to above will at once show that in the matter of recovery of arrears of land revenue the different States have prescribed different machinery, some obviously harsher than others.
The argument is that income tax being a subject with respect to which the Union alone may make law and the recovery of it being the Union responsibility, the machinery for the recovery of income tax should be framed on a uniform all India basis, for to the Union all defaulters who may not pay up the Union demand are similarly situated; but the Indian Income tax Act by section 46(2) authorises the Collectors in different States to adopt machinery which differs from State to State, so that defaulters are treated differently in different States.
The contention is that section 46(2) which sanctions such discrimination is clearly violative of the equal protection clause of the Constitution and has, therefore, become void under article 13 (1).
The learned Attorney General appearing for the respondents seeks to meet the aforesaid argument in two ways.
In the first place, he urges that the impugned sub section does not by itself make any discrimination.
All that it says is that the certified amount of income tax is to be recovered as if it were an arrear of land revenue and there its operation ends.
In recovering the certified demand the Collector has to have recourse to the machinery available to him for enforcing a demand for arrears of land revenue but the provisions of the State laws which prescribe that machinery are not incorporated in section 46(2).
897 If the State laws are discriminatory that vice cannot be imputed to section 46(2).
There is good deal to be said on either side.
The State laws prescribe the procedure for the recovery of arrears of land revenue only and they are not, in terms and by themselves, concerned at all with the recovery of income tax demand.
That machinery is made available for the purpose of recovery of income tax by virtue only of section46(2) of the Indian Income tax Act.
In the matter of recovery of income tax the Collectors adopt theprocedure laid down by the State laws, not because the State laws enjoin them to do so but because section 46(2) directs them to do so.
In other words, it is section 46(2) which tells the Collectors of Madras to follow the procedure under section 48 of the Madras Revenue Recovery Act, 1864 as if those provisions are set out in the Indian Income tax Act in extenso and it tells the Collectors of all other States to adopt the procedure prescribed by their own State laws as if the provisions prescribing that procedure were set out in that section.
In such a situation it is a plausible argument to say that all the provisions of all the State laws are, mutatis mutandis, to be read into section 46 (2) and that, therefore, if there be any vice of discrimination in the State laws that vice cannot but be regarded as having crept into section 46(2).
On the other hand, to hold that all the provisions of all the State laws for recovery of arrears of land revenue have been referentially incorporated in section 46(2) of the Indian Income tax Act will lead us into difficulties.
Will the subsequent amendments of the State laws be also incorporated in section 46(2)? Section 46(2) of the Indian Income tax Act having incorporated the State laws as they then stood, how can any State Legislature which has no power to make any law with respect to income tax alter or amend section 46(2)? Are the State laws as incorporated in section 46(2) at the time it was enacted to be treated as crystallised and to be applied by the Collectors, although the State laws for the recovery of arrears of land revenue may be materially altered by sub 898 sequent amendment? These are some of the questions which will have to be answered before we can come to a decision on this point.
In the view we take of the second part of the learned AttorneyGeneral 's argument to which we shall presently refer it is not necessary for us to express any opinion on this part of his argument.
The learned Attorney General then argues that assuming that section 46(2) by incorporating the different State laws which are not uniform has become discriminatory such discrimination is permissible and does not offend the fundamental right guaranteed by article 14.
This argument appears to us to be well ,founded.
The meaning, scope and effect of the article in question have been explained by this Court in a series of decisions beginning with that in Chiranjit Lal Chowdhury vs The Union of India(1) and ending with that in Budhan Chowdhury and others vs The State of Bihar(1).
The following passage in the unanimous judgment of the Full Court in the last mentioned case at p. 1049 briefly summarises the true intendment of the constitutional provision: ". . . . . . .
It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.
In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like.
What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
It is also well established by the decisions of this Court (1) [1950) S.C.R. 869.
(2) ; 899 that article 14 condemns discrimination not only by a substantive law but also by a law of procedure".
The respective contentions now put forward as to the validity or otherwise of section 46(2) of the Indian Income tax Act have to be judged in the light of the principles so laid down by the Full Court.
The Indian Income tax Act imposes a liability on persons who are amenable to it to pay the tax assessed against them.
The assessed amount is a public demand of the Union and has to be recovered, if not voluntarily paid up.
The assessees are scattered all over the Union and machinery has to be devised for that purpose.
On looking round the Union finds that there is machinery in every State for recovery of land revenues which are State demands.
Each State in its wisdom has devised a machinery which it has considered appropriate and suitable for the recovery of its own public demand.
As was said by the Supreme Court of America in Middleton vs Texas Power and Light Company(1) "There is a strong presumption that a legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds".
It is conceded that each State is well within its rights to devise its own machinery for the recovery of its own public demand and that no person belonging to one State can complain that the law of his State is more rigorous than that of the neighbouring state.
The reason is obvious, for the people of one State are not similarly situated as people of another State.
Their needs, as understood by their own Legislature, are different from those of the people of other States.
If in the matter of recovery of arrears of land revenue defaulters of one State cannot complain of denial of equal protection of the laws on the ground of the difference in the modes of recovery prevailing in other States, can it be said to be unreasonable for the Union to adopt, for the recovery of its public demand from defaulters of each State, the same mode of recovery (1) ; , 157.
114 900 of public demand prevailing in that State? Here the defaulters are classified on a territorial, or geographical basis and this basis of classification has precisely the same correlation to the object of the Indian Income tax Act as it has to the object of the different Public Demands Recovery Acts.
The objects of the two Acts in this behalf are in pari materia and the same considerations must apply to both.
People of each State are familiar with and used to the coercive processes which each State finds it necessary to impose on its own people for the recovery of public demand and there can be no hardship and consequently no objection to their being put to the same processes for the recovery of the public demand of the Union.
The grouping of the income tax defaulters into separate categories or classes Statewise is certainly a territorial classification which is based on an intelligible differentia and the subjection, for the purposes of the recovery of the certified demand, of each of such classes of defaulters to the same coercive process devised by their own State, on a consideration of local needs, for the recovery of their own public demands, cannot be regarded as bereft of a reasonable nexus or correlation between the basis of classification and the object sought to be achieved by the Indian Income tax Act any more than it can be so regarded with respect to the respective State laws.
The fact that the income tax demand is a Union public demand appears to us to make no difference in the legal position.
The Indian Income tax Act classifies people into various groups for the purpose of imposing the tax and taxes them differently, e.g., insurance companies which are taxed differently from an ordinary business concern and in some cases exempts them altogether, e.g., agriculturists and persons with income below a certain level.
There can, on the same principle, be no objection to people of a backward area who may be in need of aid in the shape of tax remission to be exempted from 'taxation either wholly or in part.
If this is right when a question of imposition is concerned, it cannot be wrong when the matter is one of recovery.
The two together make up the full measure of the 901 burden and if it is permissible to vary the burden at one end it must be equally valid to vary it at the other for the same or similar reasons.
It is said that the income tax demand being a Union demand there should be uniformity in the punishment to be, meted out to defaulters and it can be done easily by suitably amending section 46(2) so as to provide for the detention of all defaulters for the same period in all cases in all States.
In the first place, it is a fallacy to regard arrest and detention.
of a defaulter who fails to pay income tax as a punishment or penalty for an offence.
It is a coercive process for recovery of public demand by putting pressure on the defaulter.
The defaulter can get himself released by paying up the dues.
In the next place, the Court is only concerned to interpret the law and, if it is valid, to apply the law as it finds it and not to enter upon a discussion as to what the law should be.
The whole problem before us is whether the apparent discrimination can be supported on the basis of a permissible classification.
The case of Bowman vs Lewis(1) is in point.
We do not, however, find it necessary to express any opinion on the extreme contention urged by the learned Attorney General, on the authority of that decision, that a mere territorial classification, by itself and without anything else, is enough to place the law beyond the operation of the equal protection clause.
Indeed, in that very case it was recognised that it was not impossible that a distinct territorial establishment and jurisdiction might be intended as or might have the effect of discrimination against a particular race or class where such race or class should happen to be the principal occupants of the disfavoured area.
For the purposes of this case it will suffice to say that the discrimination complained of is not unconstitutional for the simple reason that the impugned law is based on a territorial classification having a reasonable nexus or correlation between that basis of classification and the object sought to be achieved by the Act.
Our decision in The State of Rajasthan vs Rao Manohar Singhji(2) which is relied on by learned counsel for the petitioner is easily (1) ; ; (2) ; 902 distinguishable on facts for, the law impugned in that case for the first time imposed certain disabilities on Jagirdars of a certain area of the State and there was no evidence that those Jagirdars were in any way different from the Jagirdars of the other areas of the State.
In the present case the classification has been made Statewise and it is clear that in the matter of payment of public demands of the States the people of different States are not similarly situated and their own States have imposed on them such coercive processes as the circumstances and needs of each State require.
The law impugned before us has only adopted, for its own purpose, the same coercive process which was devised by the States for their own purposes which are closely akin or similar to the purpose of the Union.
The same or similar considerations apply to both cases.
There is the same or similar correlation between the basis of classification and the object sought to be achieved by the Indian Incometax Act.
To deny this power to the Union on constitutional grounds urged before us will lead us to hold that no new offence created by law can be made triable according to the procedure laid down in the Code of Criminal Procedure, for that Code sanctions different modes of trial in different areas, namely, by a Section 30 Magistrate in some areas, by the Sessions Judge with assessors in certain areas and by the Sessions Judge with jurors in other areas.
Adoption of an existing machinery devised for a particular purpose cannot, if there be no vice of unconstitutionality in the machinery render it unconstitutional if it is made to subserve a purpose closely akin or similar to the purpose for which it bad been devised.
The first objection formulated by learned counsel for the petitioner must, therefore, be rejected.
As already stated under section 46 (2), the Collector, on receipt of the certificate from the Income tax Officer, has to proceed to recover the certified demand as if it were an arrear of land revenue.
This means that the Collector of a particular place has to take steps as indicated in the State law relating to the recovery of arrears of land revenue.
As already stated, in the State of Bombay there are two 903 statutes regulating the procedure for the recovery of arrears of land revenue according as the defaulter resides in the City of Bombay or in any other area within the State of Bombay.
Section 13 of the Bombay City Land Revenue Act, 1876 applies to the City of Bombay and section 157 of the Bombay Land Revenue Code, 1879 applies to the rest of the State.
Prior to the 8th October 1954 the portion of section 13 of the Bombay City Land Revenue Act, 1876 which is relevant for our present purpose was as follows: "If the sale of the defaulter 's property shall not produce satisfaction of the demand, it shall be lawful for the Collector to cause him to be apprehended and confined in the civil jail under the rules in force at the Presidency for the confinement of debtors, for which purpose a certificate of demand under the Collector 's signature sent with the defaulter shall be the sheriff 's sufficient warrant, equally with the usual legal process in ordinary cases of arrest in execution of judgment for debt: Provided, however, that such imprisonment shall cease at any time upon payment of the sum due, and that it shall in no case exceed one day for each rupee of the said sum".
Section 157 of the Bombay Land Revenue Code, 1879 which provides for the arrest and detention of the defaulter residing outside the City of Bombay Contains the following proviso: "Provided that no defaulter shall be detained in imprisonment for a longer period than the time limited by law in the case of the execution of a decree of a Civil Court for a debt equal in amount to the arrear of revenue due by such defaulter".
A cursory perusal of the two sections will show at once that the procedure prescribed by section 13 of the Bombay City Land Revenue Act, 1876 for the recovery of arrears of land revenue was harsher and more drastic than the procedure laid down in section 157 of the Bombay Land Revenue Code, 1879 in that a defaulter residing in the City of Bombay could be kept in detention for a day for every rupee of the arrears which might considerably exceed the maximum period of six months which is the period 904 limited by the Code of Civil Procedure for the detention of a judgment debtor in civil jail.
The argument is that on the advent of the Constitution section 13 of the Bombay City Land Revenue Act, 1876 became void under article 13(1) in that it denied to the Bombay defaulter equality before the law in comparison with the defaulter outside the City of Bombay, for he could be detained for a longer period of time.
In the view we have taken, it is not necessary to express any opinion whether the discrimination brought about by the two sections was supportable on the ground of a reasonable classification based on territorial considerations so as not to offend the constitutional inhibition.
Assuming, then, but not deciding, that section 13 of the Bombay City Land Revenue Act, 1876 became inconsistent with the fundamental right guaranteed by article 14 and, therefore, became void to the extent of such inconsistency, it was not, as recently explained by this Court in Bhikaji Narayan Dhakras vs The State of Madhya Pradesh, Nagpur and Another(1), obliterated from the statute book for all times or for all purposes or for all people.
The effect of article 13(1) is that the law could not stand in the way of the enjoyment of fundamental rights.
The law was not dead.
Further, the law was amended on the 8th October, 1954 when the proviso to section 13 quoted above was replaced by the following proviso: "Provided that such imprisonment shall cease at any time upon payment of the sum due and that it shall in no case exceed (i) A period of six months when the sum due is more than Rs. 50; and (ii)A period of six weeks in any other case.
" This amendment is nothing less than an enactment of a new provision.
It lays down a new law which is similar to the law laid down by section 157 of the Bombay Land Revenue Code, 1879.
Therefore, the disparity that prevailed between the original proviso to section 13 of the Bombay City Land Revenue Act, 1876 and the proviso to section 157 of the Bombay Land Revenue Code,, 1879 is now removed, The (1) ; 905 disparity between the two provisions as they originally stood being thus eliminated, the vice of unconstitutionality is also removed and section 13 of the Bombay City Land Revenue Act, 1876, as it now stands, cannot be assailed as repugnant to article 14 of the Constitution.
It was faintly suggested that as the assessment proceedings had been started and the certificate had been issued by the Income tax Officer to the Additional Collector of Bombay and the Additional Collector issued a notice of demand and actually attached the properties prior to the amendment, the assessee must be governed by section 13 as it originally stood and not by it as subsequently amended.
We do not think there is any substance in this contention.
It is true that the warrant of attachment of the property was issued on the 24th March 1954 but the sale proclamation was issued and the sale was actually held after the date of amendment.
The defaulting assessee might have paid up the dues in which case there would have been no occasion for sale.
It is, therefore, his default that occasioned the sale.
Again, the sale proceeds might have been sufficient to cover the certified demand,, in which case there would have been no occasion for the issue of warrant for his arrest.
It is only after the sale proceeds were found to be insufficient to satisfy the assessed amount and the assessee failed to pay up the balance that the question of the arrest of the defaulter arose.
By that time section 13 had been amended and the warrant of arrest was issued on the 7th June 1955, that is to say, long after the amendment of the section.
In our opinion, the second ground urged by the learned counsel must also be negatived.
We may mention that our attention was drawn to the decision of the Madras High Court in Erimmal Ebrahim Hajee, vs The Collector of Malabar(1) but learned counsel could not rely upon it as an authority as it was itself under appeal before this Court.
The result, therefore.
, is that this application must be dismissed.
(1) 906 CHANDRASEKHARA AIYAR J. I agree rather reluctantly.
The reluctance is not because there is anything in the reasoning of the judgment pronounced just now by my Lord which does not appear to be sound but because I am not happy about the result.
We have to face and accept wholly different consequences for non payment of income tax according as the assessee belongs to one State or another.
The nature of the tax is one and the same, and it is levied under a single Central Act, and yet the ultimate coercive processes for recovery differ in nature and extent between State and State.
We have to attribute to the legislature a rational classification based on geographical areas, the susceptibilities of people in those areas, and their reactions to the adoption of methods of recovery.
For arrest and detention, wilful default or fraudulent conduct is required in Madras.
In Assam, there can be no imprisonment at all.
The periods of detention vary between Bengal, U.P. and the Punjab.
Taluqdars in U.P. are completely exempt.
Are we to assume that people in Madras are more amenable and generally ready and willing to pay as compared with those in Bombay who are a tenacious lot and must be subjected to a longer process of detentive coercion? Are the Talaqdars in U.P. exempt from arrest because of possible political repercussions if such influential persons are subjected to such treatment? What is the rationale in providing different periods of detention for Bengal and the Punjab? We must be in a position to postulate some reasonable basis for the differentiation and we cannot get away from this necessity by vague references ' to the wisdom of the legislature or by indulging in pure speculation as to what might have been at the back of its mind.
Speaking broadly, for the enforcement of the levy of a central tax like the Income tax there should be uniformity of procedure and identity of consequences from non payment.
The machinery for recovery might be different between the several States but the defaulting assessees must be put on the same footing as regards the penalties.
But the law as it now stands can be supported on the grounds mentioned by my Lord and I do not propose to differ.

Output:
The assesses carrying on business in the City of Bombay was assessed to income tax for the years 1943 44 to 1947 48 and 1951 52 by the Income tax Officer C 1 Ward Bombay.
As the assessee did not pay the income tax due the Income tax Officer issued in April 1951 to the Additional Collector of Bombay a recovery certificate under section 46(2) of the Indian Income tax Act, 1922.
In February 1954 the Additional Collector issued a notice of demand and as no payment was made he attached the good will and tenancy rights of the assessee 's premises by a warrant of attachment dated 24th March 1954, 888 A sale was held in February 1955.
The sale proceeds not being sufficient to satisfy the assessed tax the Additional Collector issued a notice under section 13 of the Bombay City Land Revenue Act, 1876 requiring the assessee to appear before him and show cause why he should not be apprehended and confined to civil prison in satisfaction of the said certified demand.
In default of assessee 's appearance and showing cause a warrant for his arrest was issued under section 13 of the Bombay Act, II of 1876 and he was actually arrested on 1st July 1955.
An application to the Bombay High Court under article 226 of the Constitution for a writ in the nature of a writ of habeas corpus having proved unsuccessful, an application under article 32 was filed in the Supreme Court for the same relief.
Two main points urged on behalf of the assessee were: (a) that section 46(2) of the Indian Income tax Act under which the Income tax Officer issued the recovery certificate to the Additional Collector of Bombay was void, under article 13 (1) of the Constitution in that it offended article 21 and article 14 of the Constitution; (b)that section 13 of the Bombay Land Revenue Act, 1876 (Bombay Act II of 1876) under which the warrant of arrest was issued by the Additional Collector was void under article 13(1) of the Constitution as the same was repugnant to article 14 of the Constitution.
Held (as regards a) (1) that there was no violation of fundamental rights under article 21 of the Constitution inasmuch as section 13 of the Bombay Act II of 1876 under which warrant of arrest was issued for the recovery of the demand certified under section 46(2) of the Indian Income tax Act constituted a procedure established by law.
Both section 13 of Bombay Act II of 1876 and section 46 of the Indian Income tax Act under which action had been taken against the assessee were not void and therefore no question of violation of funda mental rights under article 21 could arise at all) (ii)the contention that section 46(2) of the Indian Income tax Act provides for two different and alternative methods of recovery of the dues and clothes the Collector with the unfettered and unguided power to apply either of the two methods inasmuch as it enables the Collector at his will to discriminate between two defaulters who are similarly situated and thus violates the equal protection clause of the Constitution was without force because sub section (2) of section 46 does not prescribe two different procedures.
The proviso enacted therein does not indicate a different and alternative mode of recovery of the certified amount of tax but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorised by the body of sub section (2) of section 46 and therefore there was no question of possibility of dis crimination at all; (iii)the further contention that section 46(2) of the Indian Incometax Act violates the equal protection clause of the Constitution and has thus become void under article 14 of the Constitution as section 46(2) required the Collector,on receipt of the requisite certificate from 889 the Income tax Officer, to recover the amount specified in the certificate as if it were an arrear of the land revenue and there are different laws adopted by different States for the recovery of land revenues and thus there is discrimination on the ground that defaulters are treated differently in different States is also without force be cause discrimination complained of is a permissible classification and does not offend the fundamental right guaranteed by article 14 as the grouping of the income tax defaulters in separate categories on classes State wise is a territorial classification which is based on an intelligible differentia and there is a reasonable nexus or co relation between the basis of classification and the object sought to be achieved by the Income tax Act.
The fact that the income tax demand is a Union public demand makes no difference in the legal position.
Held, (as regards b) that the contention that section 13 of the Bombay Act II of 1876 became unconstitutional under article 13(1) of the Constitution in that the procedure prescribed by section 13 of the Bombay Act II of 1876 in respect of a defaulter residing in the City of Bombay was harsher and more drastic than the procedure laid down in section 157 of the Bombay Act V of 1879 in respect of a defaulter residing outside the City of Bombay was without force because section 13 of the Bombay Act II of 1876 was amended on 8th October 1954 and a new law laid down a law similar to the law laid down by section 157 of the Bombay Act V of 1879 and thus the vice of unconstitutionality 'if any ' was removed.
State of Punjab vs Ajaib Singh & Another ([1953] S.C.R. 254), Shaik Ali Ahmed vs Collector of Bombay (I.L.R. , Chiranjit Lal Chowdhury vs The Union of India ([1950] S.C.R. 869), Budhan Choudhry and others vs The State of Bihar ([1955] 1 S.C.R. 1045), Middleton vs Texas Power and Light Company ; , Bowman vs Lewis (101 U.S. 22; , The State of Rajasthan vs Rao Manohar Singhji ([1954] S.C.R. 996), Bhikaji Narayan Dhakras vs The State of Madhya Pradesh, Nagpur and Another ([1965] 2 S.C.R. 589) and Erimmal Ebrahim Hajee vs The Collector of Malabar ([1954] , referred to.


Input:
ivil Appeal No. 1319 of 1990.
717 From the Judgment and Order dated 7.9.1987 of Delhi High Court in S.A.O. No. 99/1987.
Dr. L.M. Singhvi and Dalveer Bhandari for the Appellant.
Dr. Y.S. Chitale and A.K. Sangal for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Special Leave granted.
This is an appeal by the landlady whose application for being put in possession of the premises on the expiry of a limited tenancy of two years under section 21 of the Delhi Rent Control Act (hereinafter referred to as 'the Act ') has been dismissed by the Rent Controller, the Rent Control Tribunal and the High Court.
On 30th September, 1976, the appellant landlady and the respondent tenant appeared before Shri M.A. Khan, Additional Rent Controller for creation of a tenancy under section 21 of the Act.
The Additional Rent Controller recorded the statements of both the landlady and the prospective tenant and made the following order: "Having regard to the facts stated in the petition and the statement of the parties made above permission under section 21 of the Delhi Rent Control Act is granted to Yamuna Maloo applicant to let out ground floor of her premises No. B 2/104, Safderjung Enclave, New Delhi comprising of drawing cum dining hall, two bed rooms with attached bath room, kitchen, parking place and a small ' lawn delineated in the enclosed plan exhibit AI, to Mr.
Anand Swarup respondent for residential purposes for a limited period of two years with effect from 1.10.76.
" After the expiry of the two year period, when the re spondent did not vacate the premises, the landlady moved the Rent controller for issuance of warrant of possession to which the tenant filed his objection.
The Additional Rent Controller entertained the objection and dismissed the landlady 's petition for being put into possession.
There upon the landlady moved the Rent Control Tribunal in appeal and when she failed before it, a second appeal was filed before the High Court which was dismissed in limine.
718 The Controller relied upon the judgment of this Court in S.B.Noronah vs
Prem Kumari Khanna[1980] 1 SCR 281 and came to hold: "I have carefully gone through the execution appli cation, the objections, the evidence on record, the original file in which the permission was granted and have heard the learned counsel for parties.
I am of the view that the order dated 30.9.75 granting permission was not in accordance with law and that the applicant/petitioner is not entitled to obtain possession of the premises in dispute under section 21 of the Delhi Rent Control Act.
" Noronah 's case had stated: "Of course, there will be presumption in favour of the sanction being regular, but it will Still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present.
" It is interesting to note that by the time the appel lant 's appeal came up for hearing before the Tribunal, Shri M.A. Khan who as an Additional Rent Controller had approved the tenancy by his order dated 30th September, 1976, on being judicially satisfied that the tenancy under section 21 of the Act could be created had become the Rent Control Tribu nal.
He noticed this fact in his appellate order dated 11th April, 1986, by stating "In this appeal, the validity and executability of the order dr. 30.9.76 is disputed which was passed by me as Addl.
Rent Controller.
Since there is no other Rent Control Tribunal, therefore, in exigency of the situation I have no option but to proceed to decide this appeal.
" He concluded "The appellant in the application and in her statement did not give the reason for letting out the premises for two years only.
She even did not give the reason in application for recovery or ' possession.
In reply to the objection of the respondent, she states that she was residing in Vasant Vihar at a house which was allotted to her husband by the employer.
There was no possibility of her vacating the said 719 house and shifting to the disputed premises.
The first floor of the disputed premises was also let out by her to another tenant for a limited period.
She did not disclose that she intended to create a limited tenancy in respect of the first floor also.
Further the premises were let after an adver tisement of 'to let ' in Hindustan Times dt.
25.9.76.
It is conceded that in the advertisement it was not specified that the premises were available for letting for two years only.
All these facts proved that the appellant did not require the premises for occupation after two years and that these premises could have been let out for an indefinite period.
She made a wrong statement before the court.
She also con cealed the material facts from the court.
She obtained the permission from the court under section 21 by playing fraud.
The order passed under section 21 is therefore invalid and in execution thereof, the respondent cannot be evicted.
" We have already said that the second appeal was dis missed in limine.
Lengthy arguments were advanced at the hearing in support of the respective stands.
Counsel for the landlady argued that the Additional Rent Controller should not have entertained the objection of the tenant to the execution of the eviction order as the same had not been filed during the currency of the tenancy; it was further argued that some of the considerations which weighed with the Rent Control Tribunal were ) not at all relevant for judging the bona fides and genu ineness of actions taken on 30th of September, 1976, at the time of creation of the tenancy.
On the/side of the tenant, the contentions which had prevailed with the 'Additional Rent Controller and the Rent Control Tribunal were reiterated.
Section 14 of the Act deals with a normal tenancy and protects the tenant against unreasonable eviction.
Section 21 of the Act, on the other hand, places tile tenant outside the purview of section 14 and provides for an order of eviction at the time of creation of the tenancy.
There is a purpose behind enacting section 21 of the Act.
The Legislature considered it appropriate that should a landlord not need his residen tial premises for a period, instead of keeping the same vacant the same could be available for a tenant 's use on being let out for a limited period condi 720 tional upon the tenant 's surrendering possession as soon as the tenancy terminates by efflux of time and the need of the landlord revives.
The conditions to be fulfilled at the time of creation of such a tenancy are three, namely, (i) the landlord would not require the premises for a particular period, (ii) the Controller must be satisfied about that position, and (iii) the tenant agrees to vacate at the end of the period.
In Noronah 's case supra two Judge Bench dealt with this question.
This Court then said.
"We must notice that section 21 runs counter to the general scheme and, therefore, must be restricted severely to its narrow sphere.
Secondly, we must place accent on every condition which attracts the section and if any one of them is absent the section cannot apply and, therefore, cannot arm the landlord with a resistless eviction process.
Third ly, we must realise that the whole effect of section 14 can be subverted by ritualistic enforcement of the conditions of sanction under section 21 or mechanical grant of sanction therein.
Section 21 overrides section 14 precisely because it is otherwise hedged in with drastic limitations and safeguards itself against landlords ' abuses.
It is true that the judgment of this Court which is dated August 16, 1979, was not in existence when Sri Khan sanctioned the tenancy but the law then in force was not different.
In fact, the orders out of which that appeal arose had also taken the same view.
This Court Noronah 's case further said: "When an application under section 21 is filed by the land lord and/or tenant, the Controller must satisfy himself by such inquiry as he may make, about the compulsive require ments of that provision.
If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions for sanction have really been fulfilled.
" A three Judge Bench of this Court in J.R. Vohra vs India Export House Pvt. Ltd. & Anr., ; was examin ing the requirement of notice to the tenant when at the expiry of the period of tenancy the landlord had applied for being put in possession.
While so examining that question this Court approved the following observations in Noronah 's case: 721 "Parliament was presumably keen on maximising accommodation available for letting, realising the scarcity crises.
One source of such spare accommodation which is usually shy is potentially vacant building or part thereof which the land lord is able to let out for a strictly limited period pro vided he has some credible assurance that when he needs he will get it back.
If an officer is going on other assignment for a particular period, or the owner has official quarters so that he can let out if he is confident that on his re tirement he will be able to re occupy, such accommodation may add to the total lease worthy houses.
The problem is felt most for residential uses.
But no one will part with possession because the lessee will become a statutory tenant and, even if bona fide requirement is made out, the litiga tive tiers are so many and the law 's delays so tantalising that no realist in his sense will trust the sweet promises of a tenant that he will return the building after the stipulated period.
So the law has to make itself credit worthy.
The long distance between institution of recovery proceedings and actual dispossession runs often into a decade or more a factor of despair which can be obviated only by a special procedure.
Section 21 is the answer.
The law seeks to persuade the owner of premises available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession.
" Noronah 's judgment was approved to this extent.
In the three succeeding paragraphs in Vohra 's decision.
Noronah 's case was also referred to.
Dealing with the contentions relied upon in Noronah 's case, Tulzapurkar, J. who delivered the judgment of the Court, observed: "At the outset we would like to observe that in Noronah 's case the question whether a prior notice is required to be served upon the tenant before issuance of warrant of posses sion in favour of the landlord under section 21 did not arise for consideration.
It was a case where upon receipt of landlord 's application for recovery of possession under the section the tenant raised pleas that the premises had been let out for non residential purposes and that the sanction or permission granted for the creation of the limited tenan cy was vitiated by fraud and collusion and the question that 722 arose for consideration was whether at that stage the Rent Controller could go into and consider such pleas and this court has ruled that the Controller should consider those pleas even when raised at that stage.
" A little later Justice Tulzapurkar further observed: "In fact even in Noronah 's case this Court has observed,that there will be a presumption in favour of the sanction or permission being regular and if that be so, we fail to appreciate as to why the Rent Controller should invite such pleas of fraud, collusion etc.
at the instance of the tenant by being required to serve a notice upon him before issuing the warrant of possession in favour of the landlord espe cially when the scheme of sec.
21 and the connected relevant provisions do not require it.
" The three Judge Bench thereafter went to consider the remedy available to the tenant in a case where the objec tions were as in the present case: "What then is the remedy available to the tenant in a case where there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a limited tenancy or where such permission was procured by fraud practised by the landlord or was a result of collusion between the strong and the weak? Must the tenant in such cases be unceremoniously evicted without his plea being inquired into? The answer is obviously in the negative.
At the same time must he be permitted to protract the delivery of possession of the leased premises to the landlord on a false plea of fraud or collusion or that there was a mechan ical grant of permission and thus defeat the very subject of the special procedure provided for the benefit of the land lord in section 217 The answer must again be in the nega tive.
In our view these two competing claims must be harmo nised and the solution lies not in insisting upon service of a prior notice on the tenant before the issuance of the warrant of possession to evict him but by insisting upon his approach the Rent Controller during the currency of the limited tenancy for adjudication of his pleas no sooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission.
Either it is a 723 mechancial grant of permission or it is procured by fraud practised by the landlord or it is the result of collusion between two unequals but in each case there is no reason for the tenant to wait till the landlord makes his application for recovery of possession after the expiry of the fixed period under section 21 but there is every reason why the tenant should make an immediate approach to the Rent Con troller to have his pleas adjudicated by him as soon facts and circumstances giving rise to such pleas come to knowledge or are discovered by him with the diligence.
The special procedure provided for the benefit of the landlord in section 21 warrants such immediate approach on the part of the tenant.
" What followed thereafter perhaps is more in the nature of an obiter than a part of the decision proper, namely: "Of course if the tenant alliunde comes to know about land lord 's application for recovery of possession and puts forth his plea of fraud or collusion etc.
at that stage the Rent Controller would inquire into such plea but he may run the risk of getting it rejected as an afterthought.
" It may be pointed out that in Vohra 's case the objec tions on the ground of fraud and collusion were raised after the claim by the landlord for being put in possession but were rejected as belated.
The question that came for consid eration before the three Judge Bench was whether notice was necessary when the landlord applied to be put in possession after the termination of the tenancy.
In that context, the observation that tenant 's objections could be enquired into if the tenant aliunde came to know of the landlord 's move and objected was not relevant for the decision.
There are certain observations in Inder Mohan Lal vs Ramesh Khanna; , which are relevant: "An analysis of this judgment (Noronah 's case) which has been applied in the various cases would indicate that sec tion 21 only gives sanction if the landlord makes a state ment to the satisfaction of the court and the tenant accepts that the landlord does not require the premises for a limit ed period; this statement of the landlord must be bona fide.
The purpose must be residence.
There must not be 724 any fraud or collusion.
There is a presumption of regulari ty.
But it is open in particular facts and circumstances of the case to prove to the satisfaction of the executing court that there was no collusion or conspiracy between the land lord and the tenant and the landlord did not mean what he said or that it was a fraud or that the tenant agreed be cause the tenant was wholly unequal to the landlord.
In the instant case none of these conditions were fulfilled.
There is no evidence in this case that when the landlord stated that he did not require the premises in question for a particular period, he did not mean what he stated or that he made a false statement.
There was no evidence in this case at any stage that the tenant did not understand what the landlord was stating or that he did not accept what the landlord stated.
There was no evidence that either the tenant was in collusion or perpetrating any fraud with the landlord or the tenant was unequal to the landlord in bar gaining powers.
It is manifest that there is no evidence to show that the Controller did not apply his mind.
If that is so then on the principle enunciated by this Court in Noro nah 's case, this sanction cannot be challenged.
It is not necessary to state under section 21 the reasons why the landlord did not require the premises in question for any particular period.
Nor is there any presumption that in all cases the tenants are the weaker sections.
The presumption is, on the contrary, in favour of sanction, it is he who challenges the statement and the admission of the landlord or the tenant who has to establish facts as indicated in Nagindas case.
" In paragraph 22 of the judgment Mukharji, J. (as he then was) speaking for the Court held out a caution that the residue must be understood in its proper perspective.
We may point out that the respondent apart from being highly quali fied held the position of a Deputy Secretary to Government and, therefore, was not a tenant of the type in Noronah 's case.
As has been stated in Inder Mohan Lal 's case, the rule in Noronah 's case has to be confined to a particular set of facts and should not be freely extended so as to take away the effect of section 21.
Fraud is an allegation which can easily be made but unless the allegations are clearly pleaded and some evidence, either direct or circumstantial, is avail able, a charge of fraud would not succeed.
We may refer to another judgment of this Court in the case of Shiv Chander Kapoor.
vs Amar Bose, JT where the 725 validity of the permission under section 21 of the Act came up for consideration.
Noronah 's case was also referred to.
In paragraph 15 of the judgment this Court pointed out that there is nothing in this decision to support the respondent tenant 's contention in that appeal that the scope of enquiry is wider permitting determination of the land lord 's bona fide need of the premises as if such a ground for eviction specified in section 14 of the Act was required to be proved.
Extending the enquiry to that field would indeed be against the express prohibition enacted in section 21 of the Act.
Referring to Vohra 's case, the latest judgment indi cates: "It is obvious from the decision in J.R. Vohra 's case that the tenant is expected to raise such a plea during currency of the limited tenancy and on such a plea being raised by the tenant enquiry into it is contemplated.
Even though it is not expressly said in Vohra 's case, it is implicit that on such an application being made by the tenant requiting adjudication by the Controller, it is the Controller 's obligation to issue notice of the same to the landlord and then to make the adjudication with opportunity to both sides to prove their respective contentions.
Both in Vohra 's case and in Shiv Chander Kapoor 's case though not arising for determination in either, it has been stated while laying down the rule that proceeding to chal lenge limited tenancy has to be taken during the cunency of the tenancy, an objection filed by the tenant could be looked into is indeed an obiter.
We would like to make it clear that the rule having been stated to the contrary in Vohra 's case, there was indeed no warrant to indicate the contra situation.
Perhaps to meet the eventuality which might arise in a particular case, neither of the two Benches of this Court wanted to close the avenue of enquiry totally, and that is why in both the cases decided by coordinate Benches the exception has also been indicated.
It must be understood on the authority of the said two decisions and our judgment now that if the tenant has objection to raise to the validity of the limited tenancy it has to be done prior to the lapse of the lease and not as a defence to the landlord 's application for being put into possession.
We would like to reiterate that even if such an exercise is available that must be taken to be very limited and made applicable to exceptional situations.
Unless the tenant is able to satisfy the Controller that he had no opportunity at all to know the facts earlier and had come to be aware of them only then, should such an objection be entertained.
726 On the application of those tests to the present facts we must hold that the belated objections of the tenant should not have been entertained and prayer for possession made by the landlady after the limited tenancy ran out should have been granted.
The appeal is allowed; the decisions of the Controller, Rent Control Tribunal and the High Court are reversed and the landlady is directed to be put into possession of the premises by 31st of March, 1990.
The appellant would be entitled to her costs in the proceedings throughout.
Hearing fee is assessed at Rs.2,000.
G.N. Appeal al lowed.

Output:
The appellant landlady and the respendent tenant ap peared before the Rent Controller for creation of a tenancy under Section 21 of the Delhi Rent Control Act, 1958.
Ac cordingly, the authority passed an order creating tenancy for a limited period of two years.
Since the respondent did not vacate the premises on the expiry of two years, the appellant moved the Rent Controller for issuance of warrant of possession.
The Respondent filed his objection.
Enter taining the objection the Rent Controller dismissed the petition, holding that the order granting permission for the tenancy under section 21 of the Act was not in accordance with law.
The appellant 's first appeal before the Rent Control Tribunal, as also her second appeal before the High Court met the same fate.
This appeal, by special leave, is against the High Court 's order dismissing the second appeal in limine.
On behalf of the appellant, it was contended that the Rent Controller should not have entertained the objection of the respondent as the same has not been filed during the currency of the tenancy.
It was also contended that some of the considerations which weighed with the Rent Control Tribunal were not relevant for judging the bona fides and genuineness of actions taken at the time of creating the tenancy.
Allowing the appeal, this Court, HELD: 1.
Section 14 of the Delhi Rent Control Act, 1958 deals with a normal tenancy and protects the tenant against unreasonable eviction.
Section 21 of the Act, on the other hand, places the tenant outside the purview of section 14 and provides for an order of eviction at the time of creation of the tenancy.
There is a purpose behind enacting section 21 of the Act.
The Legislature considered it appropriate that should a 716 landlord not need his residential premises for a period, instead of keeping it vacant the same could be available for a tenant 's use on being let out for a limited period condi tional upon the tenant 's surrendering possession as soon as the tenancy terminates by efflux of time and the need of the landlord revives.
[719G H; 720A] 2.1.
The rule in Noronah 's case has to be confined to a particular set of facts and should not be freely extended so as to take away the effect ors.
[724F G] 2.2.
In Vohra 's case and in Shiv Chander Kapoor 's case, though not arising for determination in either, it has been stated while laying down the rule that proceeding to chal lenge limited tenancy has to be taken during the currency of the tenancy, an objection filed by the tenant could be looked into, is indeed an obiter.
The rule having been stated to the contrary in Vohra 's case, there was indeed no warrant to indicate the contra situation.
Perhaps to meet the eventuality which might arise in a particular case, the exception has also been indicated.
If, the tenant has an objection to raise to the validity of the limited tenancy it has to be done prior to the lapse of the lease and not as a defence to the landlord 's application for being put into possession.
Even if such an exercise is available that must be taken to be very limited and made applicable to excep tional situations.
Unless the tenant is able to satisfy the Controller that he had no opportunity at all to know the facts earlier and had come to be aware of them only then, should such an objection be entertained.
[725E H] 2.3.
In the facts and circumstances of the present case the belated objections of the tenant should not have been entertained and prayer for possession made by the landlady after the limited tenancy ran out should have been granted.
[726A] S.B. Noronah vs Prem Kumari Khanna, ; ; J.R. Vohra vs India Export House Pvt. Ltd. & Anr., ; ; Inder Mohan Lal vs Ramesh Khanna, ; and Shiv Chander Kapoor vs Amar Bose, JT , referred to.
[This Court directed that the landlady be put into possession of the premises by 31st March, 1990.]