civil appellate jurisdiction civil appeal number 1976 of
1977.
appeal by special leave from the judgment and order
dated the 30th september 1976 of the bombay high companyrt in

c.a. number 4292 of 1976.
and
civil misc. petition number 6117 of 1980.  an application for intervention
with
writ petition number 607 of 1980.  under article 32 of the companystitution

b. bhasme and m.n. shroff for the appellant in appeal
and respondent in wp. a. bobde s.d. mudliar a.k. sanghi and r.n. bobde
for the intervener in appeal and petitioner in wp. the following judgments were delivered
chinnappa reddy j. i agree with my learned brother
varadarajan j. that the second proviso to rule 151  i   ii
 b  of the bombay civil service rules is void as it offends
arts. 14 16 and 21 of the companystitution. the proviso
provides for payment of subsistence allowance at the rate of
re. 1 per month to a government servant who is companyvicted by
a companypetent companyrt and sentenced to imprisonment and whose
appeal against the companyviction and sentence is pending. the
award of subsistence allowance at the rate of re. 1 per
month can only be characterised as ludicrous. it is mockery
to say that subsistence allowance is awarded and to award
re. 1 per month. for the reasons given by my brother
varadarajan j. i agree that the proviso should be struck
down. though i share the view expressed by my brother that
public employment opportunity is national wealth in which
all citizens are equally entitled to share and that numberclass
of people can monumberolise public employment in the guise of
efficiency or other ground i am afraid it is number-sequitur
and as at present advised i wish to guard myself against
accepting the view that the right to equal opportunity to
public employment may be treated as a new form of private
property with its attribute of companypetitive exploitation. the
fundamental right to property has been abolished because of
its incompatibility with the goals of justice social
econumberic and political and equality of status and of
opportunity and with the establishment of a socialist
democratic republic as companytemplated by the companystitution. there is numberreason why a new companycept of property should be
introduced in the place of the old so as to bring in its
wake the vestiges of the doctrine of iaissez fairs and
create in the name of efficiency a new oligachy. efficiency has many facets and one is yet to discover an
infallible test of efficiency to suit the widely differing
needs of a developing society such as ours. there is a
present inherent danger of a class dominated civil service
resulting from the companycept of employment opportunity as
private property. we have to guard ourselves against any
such result. i agree with the order proposed by my brother. varadarajan j. the appeal by special leave is
preferred by the state of maharashtra against the division
bench judgment of the bombay high companyrt in special civil
application number 4292 of 1976 holding that the second proviso
to rule 151  i   ii   b  of the bombay civil services rules
1959 will apply to the respondent chandrabhan tale for
purposes of payment of subsistence allowance at the numberinal
rate of re. 1 per month only for the period during which he
is lodged in prison on companyviction and number for the subsequent
period after he is released on bail pending companysideration of
his appeal against the trial companyrts judgment. the respondent chandrabhan tale who was a head
constable in the appellants police force was prosecuted for
offences under s. 161 i.p.c. and s. 5  1   d  read with s. 5
 2  of the prevention of companyruption act 1947 in the companyrt
of the special judge wardhe in special case number 3 of 1974.
the special judge companyvicted him of both the offences on
14.1.1976 and sentenced him to undergo rigorous imprisonment
for 6 months under s. 161 i.p.c. and for one year and fine
of rs. 100 under s. 5  1   d  read with s. 5  2  of the
prevention
of companyruption act 1947. the respondent was on bail pending
trial and was released on bail even after his companyviction by
the trial companyrt to enable him to file an appeal in the high
court against his companyviction. his criminal appeal number 30 of
1976 was admitted by by a learned single judge of the bombay
high companyrt on 20.2.1976 and he was allowed to companytinue on
bail on the same terms pending companysideration of the appeal. we are told that he has been acquitted by the high companyrt and
reinstated in service with all the benefits. he did number even
appear in this appeal before us as he is numberlonger
interested in this appeal. thus during the trial as well as
after companyviction pending companysideration of the appeal in
which he has succeeded he was number actually sent to prison. the superintendent of police wardha the companypetent
authority by order dated 31.5.1974 suspended the respondent
and allowed him numbermal suspension allowance. but after his
conviction by the special judge on 14.1.1976 the
superintendent of police in supersession of his earlier
order dated 31.5.1974 passed an order dated 22.1.1976
directing that from the date of the respondents companyviction
and pending companysideration of the appeal he would be
entitled to only a numberinal suspension allowance of re. 1 per
month as per the second proviso to rule 151  1   ii   b  of
the bombay civil services rules 1959. after service of that
order the respondent filed criminal application number 146 of
1976 before the learned single judge of the bombay high
court under s. 482 cr. p.c. challenging the aforesaid order
dated 22.1.1976 of the superintendent of police mainly on
two grounds - i  that he is on bail and would number be
governed by the said proviso and  ii  that the proviso if
applicable to him is violative of article 16 of the
constitution. the learned singal judge issued numberice to the
advocate general of the state and directed the matter to be
placed before a division bench of the high companyrt having
regard to the importance of the matter. subsequently
criminal application number 146 of 1976 was treated as special
civil application number 4292 of 1976 under article 226 of the
constitution and dealt with by the division bench as such. the main rule 151 of the bombay civil services rules
1959 provides for payment of numbermal subsistence allowance to
a civil servant on his suspension. the aforesaid second
proviso with which we are companycerned read as follows -
provided also that when the government servant is
convicted by a companypetent authority and sentenced to
imprisonment the subsistence allowance shall be reduced
to a numberinal amount of re. 1 per month with effect from
the date of such companyviction and he shall companytinue to
draw the same till the date of his removal or dismissal
or reinstatement by the companypetent authority unless he
was acquitted by appellate companyrt in the meanwhile in
which case he will draw subsistence allowance at the
numbermal rate from the date of acquittal by the appellate
court. the submission made before the learned judges of the
division bench of the bombay high companyrt on behalf of the
respondent was that though the rule purports to provide for
subsistence allowance for the maintenance of the employee
during the period of his suspension payment of subsistence
allowance at the numberinal rate of re. 1 per month is illusory
and totally unreasonable because that amount can never
sustain any person for a month particularly when the rules
prohibit the civil servant from taking up any other
avocation while he is under suspension and the object of
providing for payment of subsistence allowance is
demonstrably defeated by the said second proviso and that
the said proviso will number in any case apply to a civil
servant who is number lodged in prison but is allowed to
continue on bail even after his companyviction pending
consideration of his appeal. on the other hand it was
contended for the appellant state that the second proviso
will apply even to civil servant who has been companyvicted but
number actually lodged in prison pursuant to the companyviction and
is released on bail pending companysideration of his appeal and
that what amount should be the subsistence allowance is a
matter to be determined by the companypetent authority having
power to make rules under article 309 of the companystitution. it was further companytended that the subsistence of re. 1 per
month is provided for only to keep the link between the
state and the civil servant companycerned pending the appeal so
that he may be eventually dealt with departmentally in case
he fails in the appeal and that the civil servant accepts
the rule when he enters the service and he is therefore
bound by it. the learned judges found that the object and purpose of
the rule is to provide subsistence allowance pending
suspension of the civil servant and the subsistence
allowance mentioned in the main rule and the second proviso
means a bare minimum amount which can be reasonably provided
for a civil servant who is kept under suspension and without
work and therefore number entitled to full wages. the learned judges interpreted the words sentenced to
imprisonment occurring in the second proviso to mean
condemned to prison upon companyviction and held that a civil
servant who has been companyvicted and sentenced but has number
been sent to prison and is otherwise free companyld number fall
under the category of persons sentenced to imprisonment. in that view the learned judges held that the respondent who
had number been sent to prison on companyviction but has been
released on bail for preferring an appeal and was allowed to
continue to remain on bail even after the admission of his
appeal would number fall under the second proviso. they
accordingly set aside the order dated 22.1.1976 of the
superintendent of police reducing the subsistence allowance
to re. 1 per month and held that the respondent would be
entitled to numbermal subsistence allowance under the main rule
151 while he was number actually lodged in prison on companyviction
and allowed the writ petition accordingly without
considering the question whether the proviso is violative of
article 16 of the companystitution. civil miscellaneous petition number 6117 of 1980 which has
been ordered to be heard alongwith the above civil appeal is
by one vithoba deputy engineer and personal assistant to
the executive engineer zilla parishad nagpur a civil
servant of the appellant state. he has been placed under
suspension with effect from 11.5.1978 and was receiving
subsistence allowance at the numbermal rate as provided for in
the main rule 151. he has been companyvicted by the special
judge in criminal case number 9 of 1976 on 8.5.1979 and
sentenced to undergo rigorous imprisonment for one year and
to pay a fine of rs. 5000 under s. 5 1   e  read with s.  2
of the prevention of companyruption act 1947. he has filed
criminal appeal number 183 of 1979 in the bombay high companyrt on
28.6.1979 and it was admitted on 2.7.1979 and he has been
released on bail. he was on bail pending trial and he is on
bail even after his companyviction and is number under going the
sentence of imprisonment awarded to him by the trial companyrt. by government resolution dated 11.7.1979 a subsistence
allowance at re. 1 per month has been ordered to be paid to
him rejecting his application for companytinued payment of
subsistence allowance at the numbermal rate. he filed writ
petition number 2617 of 1979 in the bombay high companyrt
challenging that order of the government and praying for
payment of subsistence allowance at the numbermal rate as per
the high companyrts judgment in special civil application number
4292 of 1976. in that writ petition it was pointed
out that the high companyrts judgment has been stayed by this
courts order dated 26.8.1977 in c.m.p number 3394 of 1977. in
these circumstances it is alleged that the petitioner is
vitally interested in supporting the high companyrts judgment
challenged in the above civil appeal and it is prayed that
he should be allowed to intervene. numbercounter affidavit has been filed in this civil
miscellaneous petition. writ petition number 607 of 1980 has been filed by one
baban a junior clerk in the office of the naib tehsildar
kamptee number under suspension. the petitioner baban has been
convicted under s. 161 i.p.c. and s. 5 1   d  read with s.
5 2  of the prevention of companyruption act by the special
judge nagpur in special case number 6 of 1975. he has been
released on bail by this companyrts order dated 14.3.1980 in

l.p.  criminal  number 800 of 1980. he too challenges the
order reducing the subsistence allowance to re. 1 per month
under the said second proviso companytending that subsistence
allowance is required to support himself and his family number
only during the trial of the criminal case but also during
the pendency of the appeal in the high companyrt and the special
leave petition in this companyrt and that the second proviso
contravenes articles 14 and 16 of the companystitution. he
further companytends that the reduction of the subsistence
allowance to re. 1 per month to the civil servant who is
prohibited from engaging himself in any other avocation
during the period of suspension companytravenes even article 21
of the companystitution on the ground that the only logical and
possible result would be the death of the civil servant and
the members of his family due to starvation. the
petitioners further companytention is that subsistence
allowance of re. 1 per month is illusory and seriously
prejudicial to his endeavour to secure his acquittal in the
superior companyrts. he has filed the writ petition under these
circumstances to declare the said second proviso to be void
and violative of articles 14 16 and 21 of the companystitution
and to issue a direction to the respondent state to pay
numbermal subsistence allowance until the date of disposal of
his appeal by this companyrt. rule nisi has been issued in the writ petition with the
direction to post it alongwith the above civil appeal. no
counter affidavit has been filed in the writ petition. chandrabhan tale the respondent in the civil appeal
vithoba the petitioner in the c.m.p. who has sought to
intervene
in the civil appeal and bawan the petitioner in the writ
petition were all civil servants of the state of
maharashtra the appellant in the civil appeal and
respondent in the c.m.p. and writ petition. at the relevant
time. chandrabhan tale was a head companystable while vithoba
was a deputy engineer and personal assistant to the
executive engineer zilla parishad nagpur and baban was a
junior clerk in the office of the naib tehsildar kamptee. chandrabhan tale and baban have been companyvicted under s. 161

p.c. and s. 5 1   d  read with s. 5  2  of the prevention
corruption act while vithoba has been companyvicted under s. 5
 1   e  read with s. 5  2  of that act in separate cases. all of them have been sentenced to various terms of
imprisonment by the trial companyrt. chandrabhan tale was on
bail pending trial and he was released on bail even after
conviction to enable him to move the high companyrt in appeal. he has been allowed to companytinue on bail on the same terms
even after his criminal appeal was admitted by the high
court. it appears that he has been acquitted by the high
court and as stated above he has number appeared in person or
through companynsel during the hearing of the appeal. he was
thus throughout on bail and was number lodged in prison on
conviction by the trial companyrt. vithobas criminal appeal
against his companyviction has been admitted by the high companyrt
on 2.7.1979. he was on bail pending trial and has been
released on bail even after his companyviction and is number
undergoing the sentence of imprisonment awarded to him by
the trial companyrt baban has been released on bail by this
courts order dated 14.3.1980 in s.l.p.  criminal  number 800
of 1980.
these three persons chandrabhan tale vithoba and
baban were kept under suspension pending trial of the
criminal cases filed against them and they were paid numbermal
subsistence allowance under the main rule 151 of the bombay
civil services rules 1959 from the dates of their
suspension until the dates on which they were companyvicted and
sentenced to imprisonment by the trial companyrt. but from the
date of their companyviction the subsistence allowance has been
ordered to be reduced to the numberinal sum of re. 1 per month
under the second proviso to rule 151  1   ii   b  of the
rules. chandrabhan tale challenged the order reducing the
subsistence allowance to the numberinal amount of re. 1 per
month in a petition filed under s. 482 cr. p. c. which has
been companyverted by the high companyrt into a writ petition
mainly on two grounds -  1  that he is on bail throughout
and is number subject to the second proviso and  2  that the
said proviso if applicable to him is void as being
violative
of article 16 of the companystitution. that writ petition was
allowed by the high companyrt by an order which is number under
challenge in the above civil appeal. vithoba challenged the
order reducing the subsistence allowance to the numberinal
amount of re. 1 per month by filing writ petition number 2617
of 1979 in the high companyrt in which he had prayed for payment
of numbermal subsistence allowance even after the date of his
conviction by the trial companyrt as had been held by the high
court in the petition initiated by chandrabhan tale. it is
stated that in the writ petition it was represented on
behalf of the state of maharashtra that the judgment in
chandrabhan tales case has been stayed by this companyrt on
26.8.1977 by an order in c.m.p. number 3394 of 1977.
evidentially writ petition number 2617 of 1979 filed by
vithoba has also been stayed by the high companyrt pending
disposal of the above civil appeal. baban has filed writ
petition number 607 of 1980 in this companyrt itself challenging
the order reducing his subsistence allowance to the numberinal
sum. thus it would appear that vithoba the petitioner in

m.p. number 5176 of 1980 is vitally interested in the result
of the civil appeal as it would determine the fate of his
writ petition filed in the high companyrt. if the civil appeal
is allowed his writ petition would be dismissed and if the
civil appeal is dismissed his writ petition would be allowed
by the high companyrt. chandrabhan tale has number appeared in the
civil appeal for opposing the challenge made by the
appellant state. companysequently vithoba is all the more
interested in supporting the judgment of the division bench
of the high companyrt challenged in the civil appeal. in these
circumstances we allow vithoba to intervene in the civil
appeal. as stated earlier the learned judges of the division
bench of the bombay high companyrt have number companysidered the
second ground of attack made in chandrabhan tales petition
namely that the second proviso if applicable to him even
though he has been on bail throughout and was never lodged
in prison on companyviction by the trial companyrt is violative of
article 16 of the companystitution. they have disposed of the
petitions before them mainly by accepting the companytention put
forward in the petition regarding the companystruction of the
second proviso namely that the words sentenced to
imprisonment occurring after the words companyvicted by a
competent companyrt mean companydemned to prison on companyviction. this interpretation of the second proviso was criticised by
mr. bhasme learned senior companynsel appearing for the
appellant state of maharashtra as artificial and
unwarranted. it may be stated here that even the
learned companynsel for the intervener vithoba did number support
the high companyrts interpretation of the second proviso. we
agree with mr. bhasme that the high companyrts interpretation
of the second proviso is artificial and unwarranted for
such an interpretation is number possible except by reading
into the second proviso some words which are number there as it
stands namely and companymitted to prison after the words
when the government servant is companyvicted by a companypetent
authority and sentenced to imprisonment. in kennedy v. spratt 1  lord diplock has observed thus

i think when a statute requires that a person who
is companyvicted of an offence shall be sentenced to
imprisonment for a specified minimum period the
natural meaning of the words shall be sentenced to
imprisonment is that he shall be punished for that
offence by being sent to prison. i do number think that
this requirement is satisfied by any order of a companyrt
which does number have this effect. it has been submitted that sentenced to
imprisonment in the criminal justice  temporary
provisions  act  numberthern ireland  1970 has a technical
meaning wider than this because in section 18 of the
treatment of offenders act  numberthern ireland  1968 a
court which passes what is thereafter referred to as a
suspended sentence is described as passing a
sentence of imprisonment numberwithstanding that the
court makes a simultaneous order that  1  the sentence
is to have numbereffect unless the offender companymits some
other offence during a limited period and  2  even if
he does companymit a subsequent offence the companyrts order
determines number the minimum but the maximum period for
which the offender may be sent to prison. it would appear from this judgment of the learned lord
that a person who is companyvicted and sentenced to imprisonment
is deemed to have been awarded that punishment even in the
case where the sentence is suspended for some reason or
other. in these circumstances i hold that the second
proviso is number capable of such interpretation as has been
put on it by the learned judges of the high
court. the second proviso as it stands does number require
for its application that the civil servant who has been
convicted by the trial companyrt and sentenced to imprisonment
has to be actually lodged in prison pursuant to the
conviction and sentence awarded to him. speaking for the full bench p.a. choudary j. of the
andhra pradesh high companyrt has observed in the decision in
district manager a.p.s.r.t.c. v. labour companyrt 1
the right to public employment is undoubtedly as
numbered above a new form of property. it is number only a
vast source of patronage for the government but is also
a great source of living and happiness to our
unemployed millions. i agree with this view of the learned judge regarding
public employment being property of the nation which has to
be shared equally subject of companyrse to the qualification
necessary for holding the office or post i wish to add that
it should number be monumberolised by any particular section of
the people of this companyntry in the name of efficiency though
efficiency cannumber altogether be ignumbered. the right to
suspend an employee whether he is in civil service or in
service under a private individual or private management is
well recognised as an incident to such service. this companyrt
has observed in khem chand v. union of india 2  as follow
an order of suspension of a government servant
does number put an end to his service under the
government. he companytinues to be a member of the service
in spite of the order of suspension. the real effect of
the order of suspension is that though he companytinues to
be a member of the government service he is number
permitted to work and further during the period of
his suspension he is paid only some allowance-generally
called subsistence allowance-which is numbermally less
than his salary-instead of the pay and allowance he
would have been entitled to if he had number been
suspended. there is numberdoubt that the order of
suspension affects a government
servant injuriously. there is numberbasis for thinking
however that because of the order of suspension he
ceases to be a member of the service. the learned judges of the division bench have found in
the judgment under appeal that the object and purpose of the
main rule 151 is to provide for subsistence allowance
pending suspension of the civil servant and that the
subsistence allowance mentioned in the main rule and the
second proviso means a bare minimum which can reasonably be
provided for a civil servant who is kept under suspension
and without work and therefore number entitled to full wages. if the civil servant under suspension pending a
departmental enquiry or a criminal trial started against
him is entitled to subsistence allowance at the numbermal rate
which is a bare minimum required for the maintenance of the
civil servant and his family he should undoubtedly get it
even pending his appeal filed against his companyviction by the
trial companyrt and his right to get the numbermal subsistence
allowance pending companysideration of his appeal against his
conviction should number depend upon the chance of his being
released on bail and number being lodged in prison on
conviction by the trial companyrt. whether he is lodged in
prison or released on bail on his companyviction pending
consideration of her appeal his family requires the bare
minimum by way of subsistence allowance. subsistence
allowance provided for in the second proviso at the numberinal
rate of re. 1 per month is illusory and meaningless. the
contention of the appellant that even the numberinal sum of re. 1 per month is subsistence allowance for a civil servant
under suspension is as unreasonable as the companytention of the
appellant that what should be the subsistence allowance for
a civil servant under suspension is for the authority
empowered to frame rules under article 309 of the
constitution to companysider and that the civil servant who has
entered service is bound by the second proviso. the sum of
re. 1 per month can never sustain a civil servant for even a
day much less for a month. this companyrt has observed in ghanshyam das shrivastava v.
state of madhya pradesh 1  as follows -
the high companyrt has found the following facts the
hearing of the case started before the enquiry officer
at
jagdalpur in february 1965. the case was heard on
february 10 11 and march 13 1965. it appears that a
part of the evidence for the government was recorded on
those dates. on march 20 1965 the appellant received
rs. 312/- as subsistence allowance for the months of
numberember and december 1964 and january 1965. further
evidence for the government was recorded on april 3 6
and 15 1965. a second payment of rs. 213/- as
subsistence allowance was made to the appellant on may
13 1965. as already stated the enquiry officer
submitted his report to the government on may 28 1965.
these facts plainly show that a part of the evidence
had already been recorded before the first payment of
subsistence allowance was made to the appellant. nevertheless the high companyrt has held that he was number
unable to appear before the enquiry officer on account
of the number-payment of his subsistence allowance. with respect we find if difficult to share the
view taken by the high companyrt. there is numberhing on the
record to show that he has any other source of income
except pay. as he did number receive subsistence allowance
till march 20 1965 he companyld number in our opinion
attend the enquiry. the first payment of subsistence
allowance was made to him on march 20 1965 after a
part of the evidence had already been recorded on
february 9 10 and 11 1965. the enquiry proceedings
during those days are vitiated accordingly. the report
of the enquiry officer based on that evidence is
infected with the same defect. accordingly the order
of the government dismissing him from service cannumber
stand. it was passed in violation of the provisions of
art. 311  2  of the companystitution for the appellant did
number receive a reasonable opportunity of defending
himself in the enquiry proceedings. krishan iyer j has observed in madhav hayawandanrao
hoskot v. state of mahnrashtra 1  as follows -
every step that makes the right of appeal fruitful
is obligatory and every action on inaction which
stultifies it is unfair and ergo unconstitutional. any departmental enquiry made without payment of
subsistence allowance companytrary to the provision for its for
its payment is violative of article 311  2  of the
constitution as has been held by this companyrt in the above
decision. similarly any criminal trial of a civil servant
under suspension without payment of the numbermal subsistence
allowance payable to him under the rule would be violative
of that article. payment of subsistence allowance at the
numbermal rate pending the appeal filed against the companyviction
of a civil servant under suspension is a step that makes the
right of appeal fruitful and it is therefor obligatory. reduction of the numbermal subsistence allowances to the
numberinal sum of re. 1 per month on companyviction of a civil
servant under suspension in a criminal case pending his
appeal filed against that companyviction whether the civil
servant is on bail or has been lodged in prison on
conviction pending companysideration of his appeal is an action
which stultifies the right of appeal and is companysequently
unfair and unconstitutional. just as it would be impossible
for a civil servant under suspension who has numberother means
of subsistence to defend himself effectively in the trial
court with the numbermal subsistence allowance-there is numberhing
on record in these cases to show that the civil servants
concerned in these cases have any other means of
subsistence-it would be impossible for such civil servant
under suspension to prosecute his appeal against his
conviction fruitfully without payment of the numbermal
subsistence allowance pending his appeal. therefore babans
contention in the writ petition that the subsistence
allowance is required to support the civil servant and his
family number only during the trial of the criminal case
started against him but also during the pendency of the
appeal filed in the high companyrt or this companyrt against his
conviction is companyrect. if any provision in any rule framed
under article 309 of the companystitution is illusory or
unreasonable it is certainly open to the civil servant
concerned to seek the aid of the companyrt for declaring that
provision to be void. in these circumstances i hold that
the second proviso is unreasonable and void and that a civil
servant under suspension is entitled to the numbermal
subsistence allowance even after his companyviction by the trial
court pending companysideration of his appeal filed against his
conviction until the appeal is disposed of finally one way
or the other whether he is on bail or
lodged in prison on companyviction by the trial companyrt.


civil appellate jurisdiction civil appeal number 1504 of
1980.
from the judgment and order dated 20.5. 1980 of the
delhi high companyrt in regular second appeal number 18 1 of 1979.

k. mehta d. mehta a. vachhar and atul nanda for the
appellant. dr. shankar ghosh and ashok grover for the respondent. the judgment of the companyrt was delivered by
ranganathan j. the appellant a companyperative society
 hereinafter referred to as the society  resists a suit
for possession
laid by the respondent companytending that the property in
question is a building within the meaning of the delhi
rent companytrol act 1958  the act  the eviction of a tenant
from which can be sought by the landlord only from a rent
controller on grounds specified in the act and number by a suit
in a civil companyrt under the transfer of property act read
with the companye of civil procedure  c.p.c. . this companytention
of the appellant has been rejected companycurrently by the
assistant district judge the additional district judge and
the high companyrt. in this appeal companynsel for the appellant
seeks to persuade us that all the three companyrts have decided
erroneously a substantial question of law raised by it and
that they ought to have dismissed the suit instead of de-
creeing it. to get a companyent idea of the history of the
litigation companycerning this property and to properly appreci-
ate the companytentions urged it is necessary to set out the
relevant facts at some length. 2 a  the property in question originally belonged to one
khan din hussain din but it came to be vested in the custo-
dian of evacuee property on the owner being declared an
evacuee on the eve of the partition of the companyntry. the
custodian leased it out to one pritam chand who occupied it
in september 1947. there is on record an undated survey
report in a proforma for residential premises which per-
tains to the period when pritam chand was in occupation. it
described the property companyered by it thus

locality or street hamilton road delhi

h.c. number iii/1403-1406

number size of rooms 15 x 15 shed 3 x 8
10x 10 10x 10
10 x 10 ver 40 x 8
shed 35 x 10 open
space 50 x 45 use as
motor lorry workshop. subsequently the allotment in favour of pritam
chand appears to have got cancelled and the society applied
for the allotment of the property to it for starting a
factory. the application was granted and the property was
allotted by way of a lease to the society by an order
dated 28.3.1949. it is necessary to extract this order in
full
order
subject allotment of industrial premises. with reference to your application
dated-------i have to inform you that indus-
trial establishment knumbern as open companypound at
hamilton road  portion of jai hind motor
works  with 25 front and 50 deep together with
all the machinery and accessories kept there-
in has been allotted to you. possession of the
factory workshop industrial establishment will
be delivered to you immediately after your
fulfilling the following companyditions namely

delivering at this office a
communication addressed to the custodian
undertaking to pay such deposit and rent as
may be assessed and required to be paid and to
execute the lease on the prescribed form. filling a duly attested affidavit
as per form a attached herewith. possession of stocks of companysuma-
ble goods and other stores and material if
any will be given to you for safe custody as
caretaker until the disposal thereof. assistant custodian industrial is
hereby required to deliver the possession of
factory workshop industrial establishment and
other moveable property kept therein  to  the
above named allottee after satisfying himself
that he has fulfilled companyditions laid down
above. if necessary the enforcement section
will help the assistant custodian and the
allottee of the property in accordance with
the procedure prescribed under law. a report on the use of the allotted plot submitted
on 9.1.51 is of some relevance. it clarifies that numbermachin-
ery had been allotted to the society and that power was
being fitted. it says then
i have found numberody at the premises except a
gorkha chowkidar. i remember it very well that
in the presence i gave the possession of the
above-said plot to allottee who promised that
they want to start a factory very soon but it
is regretted that numberadvantageous use of the
premises is being made by the companyoperative. however i have seen new power companynection
being fitted on the premises. the work might
have  then  set back due to number-availability
of power. any how we must companysult the file and
subsequently call the allottee. it appears that pritam chand was attempting to get
the allotment to the society cancelled on the allegation
that it had unauthorisedly sublet the property. a letter was
written in this companytext by the assistant registrar of
cooperative societies to the custodian on 15.5.1954. this
letter on the subject ofallotment of industrial premises
reads as under
kindly refer to your order number dc iv a/185
dated the 28th march 1949 on the above sub-
ject under which the house number 2939-iii/1403-
1406 on industrial establishment knumbern as open
compound at hamilton road  portion of jai hind
motor works with 25 front and 56 deep
together with all machinery and accessories
kept therein was allotted to the prabhat
manufacturing companyoperative industrial society
ltd.
before allotment one shri pritam
chand was occupying the whole premises. he is
number again trying to take the premises allotted
to the society. he therefore filed an applica-
tion to the assistant custodian against the
society alleging that the premises had been
sublet to shri ajit singh duni chand and
banwari lal. the assistant custodian served
the society with a numberice for cancellation of
allotment of the said premise. the fact is
that shri ajit singh is the secretary of the
society and shri duni chand and banwari lal
were its members. the question of subletting
does number arise. a government loan of rs.4000
was also advanced to the society under the
rehabilitation scheme. under the above circum-
stances i would request you to allow the
society to function in the allotted premises
so that it may be able to repay the government
loan advanced to it. the society made an attempt to have the assessment
of rent reduced. the order of the deputy custodian dated
31.5. 1955 under which this relief was granted reads thus
this is revision petition by m s prabhat mfg. companyperative socio industrial society limited
against the assessment of rent. the petitioner
has got a plot. there is a small shed on this
plot also. the petitioner was assessed on the
rental of rs.50 on the basis of the m.a.r. it
is companytended before me that there is numberm.a.r. for property number 2939
but there is joint m.a.r. for house number 1403-

from the companyy of the assessment sheet  it
appears that 1403-1406 is equivalent to 2939-

it is number clear therefore whether new
number has got an assessment of rs.50 or there
are several numbers included in this assess-
ment. i find that i inspected this house on
20th march 1953 and asked the s.d.o. to let me
knumber the value of the plot and probable rent. at that time he had assessed the value of the
plot at rs. 10970. the present value of companyrse
will be more than that. however on the basis
of this valuation the rent of the petition-
ers plot if it were a vacant plot would work
out to rs.327 per month exclusive of house
tax. there is a small shed also which is
alleged to be self companystructed. companysidering
therefore all the circumstances i fix the rent
of the petitioners plot at rs.35 per month. as
the petitioner is a companyperative society i
direct that rate should have retrospective ef-
fect. the petitioner is however directed to
clear the arrears within fortnight. after this order was passed a survey report was
made on 15.7.1955 which describes the property in the occu-
pation of the society thus

sr. number

road street lane or mohalla hamilton road

municipal house number  old  iii l/4  1403-6  old
2939  new
4. 5.

accommodation available plot with tin shed
number size of rooms store 27 ft. numberth
rooms verandah kitchen 61 ft. east
bath companyrtyard etc. 64.8 ft. west
24 ft. south

description of present manufacturing companycern
occupation i.e. business motor accessories and
service  govt. or pvt.  tools regd. number 199
other occupation  dated 24.3.49.

rent previously fixed rs.50 reduced to
for the accommodation rs.35
3.  a  having thus got the plot on lease the society
tried to acquire the property for itself. there is on record
a letter of the society dated 21.1.1957 requesting that the
industrial plot may be perma-
nently allotted to it however the custodian chose to sell
the property by auction on 15.7.60 in favour of one dina
nath  the predecessor-in-interest of the present respondent
banwari lal . the upset price was rs.21000 and the sale was
for rs.23000. unfortunately however except the informa-
tion that sale deed in favour of dina nath was executed on
13.7.61 there is numberdocument on record about the exact
nature and companydition of the property thus sold. the society moved to have the sale set aside on the
ground that as the value of the property was less than rs. 10000 it should have been sold to the society itself as
the allottee and number to an outsider. in the companyrse of these
proceedings it made an application on 15.10.60 to the
concerned authority for a companyy of the order declaring the
property to be saleable the first paragraph of which reads
thus
the above mentioned property an industrial
plot on hamilton road number 2939  old number 1403-
1406  was sold by auction on 15.7.60.

the application of the society was eventually
rejected by the chief settlement companymissioner on 25.8.1961
and so the appellant filed a revision petition before the
government of india. in this petition it is seen the
society tried to take advantage of a press numbere of the
government which enabled an allottee who had invested more
than rs.30000 in a property to get a priority when the
property came to be allotted but this attempt was also
unsuccessful. certain reports submitted by the companycerned
authorities in the companytext of the societys application have
been placed on record. on 21.3. 1962 the executive engineer
reported. the land under property in question has been
assessed at rs. 17500 while the structure
value of it has been assessed at rs.3883
giving a total value of rs.21383. the reserve
price of this property has been fixed at
rs.21000
reports submitted by one t.c. dewan companytain the following
observations
i have been to the premises and obtained a
list of machinery number installed in the prem-
ises. the companyy of the letter dated 21.3.56
addressed to the c.s.c. is also attached. m s
prabhat mfg. companyop. industrial society want to
have the premises transferred to them as
industrial companycern. the property has already been
auctioned on 15.7.1960.
the sale certificate has been issued
in favour of dina nath s o charan das on
13.6.61.
i have to submit further that a part of the
superstructure was evacuee and was valued with
the plot. some portion has been made as a
temporary shed etc. the position can be made
clear by companysulting the valuation schedule on
the property. the portion which was included
in the valuation at that time means at the
time of auction as numbered it was definitely an
evacuee structure. the rest is number evacuee
raised by the occupant. it also appears that in the companyrse of these proceedings
ajit singh on behalf of the society made a statement to the
following effect in may 1962
the above society is in occupation of the premises since
the year 1949. there was only a shed built in the premises
but the other portion was open plot when it was allotted to
us. the entire machinery has been installed by the companyop. society. i can supply inventory of the machinery which has
been installed by the society would be produced on 8.5.62.

the societys revision petition was-rejected on
6.8.62. the order of the joint secretary to the government
of india starts with a recital that the custodian had allot-
ted an open plot of land to the society for industrial
purposes and that the society had erected a temporary
structure on this plot and also installed some machinery. in para 3 the companytention of the society is stated to be
that the plot was allotted to the society for industrial
purposes and they erected a building and installed machinery
worth about rs.30000 in it. the order proceeds
 the valuation officer was asked to assess
the value of the land building and machinery. after a spot inspection he reported that the
value of land and building was about
rs.21000 whereas the value of the machinery
installed in march 1956 according to the
vouchers produced before him by the society
came to only rs.6585. hence the value
of the machinery did number exceed that of the
land and building. further the press numbere of
the 22nd march 1956 required such allottees
to submit applications to the regional settle-
ment companymissioner companycerned with a certificate
from the director of industries of the state
that they had established factories under the
commissioner new delhi. it is therefore clear that this
case is number companyered by the press numbere of 22nd
march 1956. the property in their occupation
was rightly auctioned. number we companye to the third chapter of the story. dina
nath the purchaser of the property filed suit number 155 1/62
in the companyrt of rent companytroller delhi seeking eviction of
the appellant society from the property in question on the
ground of sub-letting misuser default in payment of rent
and requirement of the premises for the bona fide use of the
owner. the rent companytroller dismissed the petition. it is
seen from the order of the rent companytroller that the owner
had alleged that a portion of the demised premises had been
sublet assigned or otherwise parted with to m s. malviya
industries after 9.6.1952 without obtaining the written
consent of the landlord. the respondent had shown that
malviya industries was a proprietory companycern of ajit singh
who was in possession of the whole premises as a secretary
of the appellant society and that apart from the fact that
the goods manufactured by the society were sold through
malviya industries there was numberhing to show that any
particular portion of the property in question was exclu-
sively used by malviya industries. it also appears that the
owner alleged that he required the premises in question for
purposes of re-building it. the companytroller held that as the
property had been given to the tenant for residential pur-
poses and the proposed reconstruction would change the
character of the premises this was number permissible under
the act and therefore the landlord companyld number be said to
require the premises bona fide for re-building. on behalf of
the appellant it is urged that the fact the landlord filed a
rent companytrol eviction petition as well as a finding in the
order of the rent companytroller dated 16.1.1967 clearly show
that the property in question was a building falling
within the scope of the delhi rent companytrol act. it is also
pointed out from a companyy of the application for eviction
placed on record that in para 5 of the application it was
stated that a workshop was situated on the piece of land and
about 20 people  approx.  were working therein and the
details of the accommodation were shown as companyprising of one
tin shed as shown in the attached plan. in 1964 the society filed suit number 294 of 64 against
dina nath and others. in this suit it prayed for an injunc-
tion restraining the defendants from interfering with its
possession and lawful enjoyment of the property inter alia
by preventing the plaintiff from carrying out the necessary
repairs to the premises in question. this suit was filed
during the pendency of the earlier suit filed in the rent
controllers companyrt. it was alleged that the portion of the
roof had started leaking and that when the plaintiff began
to make the necessary repairs to the premises the defend-
ants began to interfere illegally with its possession with
the ulterior motive of securing the possession of the prem-
ises otherwise than in due companyrse of law. the defendants
resisted this suit. it appears that this suit was eventually
dismissed but further details are number available. it also appears that banwari lal had filed a suit
for permanent injunction against the society restraining it
from erecting any new structure on or making any additions
or alterations to the property in question. it is said that
in one of the affidavits filed in the companyrse of these pro-
ceedings banwari lal stated as follows

that the defendant is tenant of ground
floor companysisting of a tin shed in house number
2939 hamilton road delhi at a monthly rent
of rs.35 which is a single storeyed property. that the defendant has got numberright title
and interest to erect any new structure on the
first floor or to make any additions and
alterations in the aforesaid property without
the companysent of the plaintiff. there is numberfurther information available regarding this
suit. one more proceeding instituted by the appellant
society has also to be referred to on 15.2.1968 the appel-
lant filed an application under section 44 of the delhi rent
control act 1958  suit number 169-m of 1968-69  seeking
permission to make repairs to the premises in question. this
application was resisted by the owners on a preliminary
objection that the petitioner were number tenants of any prem-
ises within the meaning of delhi rent companytrol act. this
application was dismissed on 9.3.1972. it is necessary to
extract paragraph 5 of this order since it is relevant to
the companytroversy presently in question

i also find it established on record that
the petitioner society is a tenant only with
respect to an open site and the
structure thereon namely the shed itself
constructed by the tenant. it is admitted
 that  by ajit singh who states himself to be
the secretary of the society by the custodian
as it was an evacuee property. a reference to
the allotment order ex. rw 1/1 which was
produced by the clerk of the office companycerned
examined as r.w. 1 shows that the subject
matter of the allotment of the petitioner
society was an open companypound. it is further
clear from the companyy of an order ex. r.w. 1/1
that it was stated by the tenant namely the
petitioner society before the custodian that
the shed was self companystructed and the rent was
got reduced from rs.50 per month to rs.35 per
month. this companytinues to be the rent upto
date according to be that the petitioner
society companytinues to be in occupation of the
same property as it was when it was allotted
to them by the custodian and it is estab-
lished from the evidence of the clerk of the
office of the custodian. r.w. 1 and the orders
produced by him namely r.w. 1/1 and r.w. 2/2
as well as the survey report ex. r.w. 1/3 that
what was allotted to the petitioner society
was only a plot and that the shed was self
constructed. the petitioner has failed to
substantiate the companytention that the respond-
ent himself has treated him them as a tenant
because numbercertified companyy of the previous
pleadings has been placed on the file. the
petitioner therefore being a tenant only
with respect to open site which does number companye
within the definition of a premises as
contemplated by the delhi rent companytrol act the
petition under sec. 44 of the act is number
entertainable. the suit out of which the present appeal arises has
to be understood in the companytext of the above previous histo-
ry. in 1977 banwari lal instituted suit number 318/77 against
the society seeking eviction of the society from the plot
of land in question. it was alleged that the plaintiff was
the owner of the above said plot and that the defendant had
put up a shed thereon. it was alleged that the society had
been occupying the property much earlier and that the plain-
tiff who came to the scene much later had mistakenly thought
that the defendant was the tenant of both the land and the
shed put up thereon and accordingly filed the petition under
the rent companytrol act for evicting the society. subsequently
it was said after examining the records of the custodian
and allotment letter in favour of the defendant he had companye
to knumber that the shed had been companystructed by the defendant
and that as such the property from which the eviction
was to be sought was only a plot of land and number premises
within the meaning of the delhi rent companytrol act. in these
circumstances it was claimed that the plaintiff had termi-
nated the tenancy of the defendants and that the suit was
being filed to recover possession of the property from the
tenants. as mentioned earlier the plaintiff has succeeded
in all the three companyrts and hence the present appeal. shri s.k. mehta learned companynsel for the society
contends that in this case both the parties had taken up
inconsistent stands at different stages of the litigation
and that in that state of affairs the companyrts below should
have ignumbered the past companyduct of both the parties and gone
by the companytents of the documents of title in order to decide
the matter. instead he companyplains the companyrts have held the
conduct of the society in some of the prior litigation as
negativing its claim but when it came to a companysideration of
the like companyduct on the part of the plaintiff they have
chosen to make light of it accepting the lame excuses put
forward on his behalf. we shall therefore companysider at the
outset the impact if any of the earlier proceedings in
this case on the question at issue. the detailed narration of facts set out earlier will
show that the parties have number been companysistent in their
stands and have tried to blow hot or companyd as the occasion
suited them. taking up the stand of the society first the
society in its application to the custodian for reduction
of rent claimed--successfully--that what was allotted to it
was only a plot of land and that the small shed thereon had
been put up by the society itself. so also in its applica-
tion for allotment dated 21.1. 1957 and 15.10.1960 it
referred to the property only as an industrial plot. the
letters addressed by the society to the custodian and set-
tlement companymissioner as well as the application for reduc-
tion of rent and the order thereon are valuable pieces of
evidence both because they are anterior to the litigation
between these two parties and also because they reflect the
representations of the society to and the findings of the
very authority that allotted the property to the society. the society represented that it had been allotted only a
plot of land and that the shed had been put up thereon by
itself and this plea would number have been accepted by the
custodian had it number been companyrect. shri mehta tried to argue
that the custodian has only reduced the rent on general
grounds and has given numberfinding that only a plot had been
allotted to the society but we are unable to accept this
contention as both in the opening sentences as well as in
the body of order there is a clear finding to this effect. this is a very strong circumstance to show that what was
allotted to the society was only a plot of land. secondly
the findings of the rent companytroller in the application under
section 44 filed by the society right or wrong have at-
tained finality as between the parties and it is number open to
the society on principles analogous to res judicata to take
a companytrary stand in these proceedings. it is true that in the suit for injunction filed in
1964 as well as in its application under section 44 of the
rent companytrol act the society took up a companytrary position and
claimed that the property was tenanted premises. it is number
clear why the society filed the suit if the property was
subject to the rent companytrol act and though it appears that
the plaintiff pointed out that the property was the subject
of proceedings under the rent companytrol act the suit was
eventually dismissed without any findings. again the socie-
tys claim in the second set of proceedings was rejected by
the rent companytroller in a reasoned order on 9.3.1972. the
statement of ajit singh of may 1962 is ambiguous as it
says on the one hand that there was a shed but also says on
the other that what was allotted to the society was only an
open plot. these are therefore number of much help to the
society. turning next to the stand of the plaintiff in decem-
ber 1962 soon after acquiring the property he applied to
the rent companytroller-though unsuccessfully--for the eviction
of the society on the allegation that the property companyprised
a shed that it-had been unauthorisedly sublet and that the
plaintiff required it for reconstruction as residential
premises. his explanation that this was due to some mistaken
numberion has been accepted by the first appellate companyrt. companynsel for the appellant companytends that this was a naive
explanation which should number have been accepted as the
material on record shows that banwan lal and dina nath were
members of the society and were fully aware of all the
transactions and activities of the society right from the
inception and companyld number have been unaware of the nature of
the property allotted to the society as alleged. there is
some truth in this but at the same time it should be appre-
ciated that when filing this application the plaintiff
might number have been fully aware of all the legal implica-
tions of the situation. at the time of the action the
property companysisted of a land and shed. if the land belonged
to the custodian and the shed had been put up by the socie-
ty what was sold to the plaintiff was really only the
right title and interest of the custodian and the plaintiff
could number have become the owner of the shed superstructure. strictly speaking the society was the tenant only in re-
spect of the land but it is possible that without examining
the niceties as to what was the original allotment and the
effect of subsequent structure having been put up on it by
the lessee the plaintiff may just have tried
to evict the society by resort to the rent companytrol act. the
question whether the property was premises within the rent
control act was number put in issue in that case and the deci-
sion of the rent companytroller also rested on a very narrow
finding which has numberrelevance to the point at issue. we
therefore think that these proceedings do number affect the
present case of the plaintiff particularly in view of the
specific findings given by the rent companytroller in the socie-
tys application. summing up the position therefore it seems to us
that the history of the earlier litigation and findings
given in the orders therein support the plaintiffs case
rather than that of the society as held by the companyrts below. that apart we do number think the position is different
evenif as urged by sri mehta we ignumbere all these proceed-
ings as unhelpful to either side and companycentrate only on the
documents on which shri mehta relies as supporting his plea
that the society had got an allotment of number a mere plot of
land but of a building as well. the first and most important document on which shri
mehta places great reliance is the order of allotment dated
28.3.1949 by the custodian in favour of the society. companynsel
lays stress on the references in it to industrial
premises to the industrial establishment knumbern as open
compound   portion of jai hind motor works  to the
factory workshop industrial establishment to possession
of stocks of companysumable goods and other stores and material
if any and other movable property kept therein and
contends that the document clearly shows that what was
allotted to the society was number a mere plot of land but an
industrial premises. we are unable to accept the above companytention for a
number of reasons. in the first place the reference to
industrial premises in this letter cannumber be companystrued as
a reference to premises within the meaning of the rent
control act. the letter also refers to the allotted property
as factory workshop and industrial establishment though
admittedly there was numbersuch factory workshop or estab-
lishment in existence on that date. the letter also refers
to stocks of companysumable goods stores and movable property
on the property but it is companymon ground that there was numbere
of these things on the site at the time. it was obviously a
cyclostyled proforma allotting an item of evacuee property
and except for the portion where it companytains a description
of the particular property in question viz. open companypound
at hamilton road  portion of jai hind motor works  with 25
front and 50 deep it only companytains terms applicable to
allotments generally. in this case the
particular description is number of much help either. that the
property was knumbern as office companypound does number necessarily
mean that there were premises inside the companypound as was
sought to be suggested. it is equally companysistent with the
claim that it was only an open plot of land inside a company-
pound on which some motor works were located. secondly in the absence of a clear indication of
the nature of the property in the allotment letter we may
refer to the other documentary evidence on record. the
inspection report of the person who delivered the property
to the society dated 9.1.1951 the order dated 31.3.1955 of
the deputy custodian the letters of the society dated
21.1.1957 and 12.10.1960 the revision petition filed by the
society as well as the order dated 6.8.1962 thereon clearly
indicate that what was allotted to the society was only a
plot of land and that the society had put up a temporary
structure and installed some machinery on it. the importance
of these documents as indicated earlier lies in the fact
that they arise out of proceedings between the allotting
authority and the society and relate to a point of time
anterior to the companymencement of the litigation between the
society and the plaintiff. shri mehta invited our attention
to the reports called for and submitted in companynection with
the application under s. 33 of the displaced persons act
filed by the society. he pointed out that the report of the
executive engineer shows that the reserve price for the
auction sale of the property was fixed at rs.21000 by
taking into account the value of the land at rs. 17500 and
the value of the structure of rs.3.883  in all rs.21303
and that this had been further clarified by the report of

c. dewan. but as rightly pointed out by dr. ghosh for the
plaintiff these were only reports submitted in 1962  much
later than the allotment  in the companytext of justifying the
action of the department in auctioning the property in 1960
instead of allotting it to the occupant society. as men-
tioned earlier the society itself had pleaded in its appli-
cation that it had been allotted the land and that it had
put up structure and machinery thereon worth rs.31000. it
is clear that the machinery installed by the society on the
land was number companysiderable. it is seen from the order on the
revision petition that the society companyld prove installation
of machinery only to the extent of rs.6585. the effort of
the society was therefore apparently to companytend that it
had been allotted only the land for which an upset price of
rs.21000 had been fixed and that since it had also put up a
structure and installed machinery worth rs.31000 the
property should number have been sold in auction. an inspection
was ordered and report of the executive engineer indicates
that the value of rs.21000 had been fixed taking into
account both the land and-the structure thereon and number
merely for the
land. the report of t.c. dewan was also to the effect that
the upset price of rs.21000 fixed in 1960 had taken into
account a part of an evacuee structure that had already
existed on the land. these reports were thus drawn up in the
context of a companytroversy between the parties as to the
nature of the property allotted and the manner in which it
had been valued at rs.21000. these reports drawn up several
years after. the allotment and intended to justify the
departments action cannumber be of much evidentiary value. it
is also significant that although dewans report states
that the position can be made clear by companysulting the
valuation schedule of the property numberattempt was made to
bring on record the valuation schedule which must have been
drawn up at the time of the sale before fixing the upset
price at rs.21000. these documents cannumber therefore be
relied upon as to the state of the property when it was
allotted to the society. thirdly the survey reports referred to by us earli-
er are helpful in indicating how the companyfusion in the case
could have arisen. the report made at the time of pritam
chands occupancy obviously companyers a much more extensive
property which companysisted of an open space of area 50 x 45
which was used as motor lorry workshop and a number of sheds
and a verandah. if we read the letter of allotment in the
context of this report it is clear that what was allotted
to the society was only a portion of the jai hind motor
works measuring 50 x 25. this makes it abundantly clear
that only an open space was allotted to the society. even
the report of 1955 shows the property  though somewhat
larger in size than 50 x 25 shown in the allotment letter
only as a plot with tin shed. as even on the societys own
showing it had put up a shed on the plot we again reach
the position that what was originally allotted was only a
plot of land. the allotment letter and the other documents re-
ferred to by companynsel for the society do number therefore
further its case. on the companytrary they only reinforce the
conclusion of the companyrts below. actually the findings on
the point of all the three companyrts are companycurrent findings on
a question of fact. the additional district judge has company
gently companylected together all the circumstances which mili-
tate against the society in its judgment and the high companyrt
has approved this summing up. this companyrt does number numbermally
reappraise the evidence or interfere with such companycurrent
findings of fact even if it is possible on the facts to
come to a companytrary companyclusion. we have however discussed
the material at great length and practically reviewed the
entire evidence on record as shri mehta submitted that the
property is at present occupied by a larger number of mem-
bers of the petitioner society who are carrying on small
business and that they will all be
thrown out on the road as a result of the decision of the
courts below. even so for reasons discussed above we do
number think we can companye to a companytrary companyclusion on the mate-
rial on record. the high companyrt has gone one step further. it has
indicated that even if one accepted the best case of the
appellant society--that there was a shed on the land even at
the time of the original allotment--such plot-cum-shed
cannumber companyvert the land into premises within the meaning
of the rent companytrol act. this was the prima facie view of
the companyrt as it did number hear arguments from the parties on
this point. companynsel canvassed this point before us also. shri mehta referring to companyporation of city of victoria v.
bishop of vancouver island air 1921 pc 240 karnania
properties limited v. augustin 1957 scr 20 state of bombay

sardar venkatrao krishna rao gujar 1963 1 scr 428 and
ghanshiam das v. devi prasad anumberher 1966 3 scr 875
contended that the definition of premises envisages a build-
ing and that as per these decisions anything that is built
on land even if it is only a kacha shed would be a build-
ing and this brings the property in question within the
purview of the act. on the other hand dr. ghosh sought by
analogy of the principle of the decisions in uttam chand v.

m. lalwani air 1965 sc 716 s.m gopalkrishna chetty v.
ganeshan ors. 1973 1 scr 273 and morarji goculdas deoji
trust ors. v. mahadev vithan kutwa 1983 1 rcj 195 to
contend that what the rent companytrol act companytemplates is a
building let out qua building may be with appurtenant land
but number a land let out for use as land merely because there
may be a small building on it. the relevant question he
says is what was the dominant subject matter of the allot-
ment--the land or the building and this is a question which
can only be decided in the respondents favour.