N Criminal Appeal No 9 of 1988
From the Judgment and order dated 19
10 87 in the High Court of Delhi in Criminal Petition No 239 of 1987
DD Thakur Harjinder Singh and N Malhotra for the Appellant
Kuldip Singh Additional Solicitor General CV Subba Rao and Hemant Sharma for the Respondents
The following Judgments of the Court were delivered DUTT J
This appeal by special leave is directed against the judgment of the Delhi High Court whereby the High Court dismissed the writ petition of the appellant challenging the validity of his detention under the  hereinafter referred to as the Act 
Information was received in the Directorate of Revenue Intelligence for short DRI  that the appellant was engaged in receipt 49 storage and disposal of smuggled gold on a large scale
On a specific information received on March 11 1987 that large quantity of gold had been received by the appellant and stored at his instance in various premises the DRI mounted a discreet surveillance in the vicinity of the residence of the appellant
Shorn of all details it may be stated that 100 foreign marked gold biscuits each weighing 10 Totals were seized from Uttam Chand a milk vendor
It was disclosed by Uttam Chand that the said gold had been given to him by the appellant
He also disclosed that the appellant had given him 300 gold biscuits
The remaining 200 gold biscuits were taken away from Uttam Chand by Raj Kumar alias Chhotu the servant of the appellant
Raj Kumar alias Chhotu however disclosed that he had delivered the said 200 gold biscuits to one Bhuramal Jain of E19 Ashok Vihar Phase I New Delhi
The search of the residence of Bhuramal Jain resulted in the recovery of the said 200 biscuits of foreign marked gold from a zipper bag
It is the case of the detaining authority that the appellant Vijay Kumar had at the instance of one Dubai based smuggler Mohideen agreed to receive and dispose of smuggled foreign marked gold biscuits in Delhi which would be supplied to him by two men of Mohideen named Chandra Bhan and MP for a monetary consideration
It is alleged that pursuant to that arrangement the appellant had received in all 1150 biscuits of foreign marked gold of 10 Tolas each from the said Chandra Bhan and MP between the end of January 1987 and March 7 1987
A part of this quantity of smuggled gold was  alleged to have been delivered by the appellant to one Prakash Luniya and another part of it was from time to time stored by the appellant in the residence of Uttam Chand who had been engaged by the appellant to store such smuggled gold on behalf of the appellant for a monetary consideration
As stated already 300 smuggled gold biscuits were seized by the DRI officers on March 11 1987
These 300 gold biscuits each weighing 10 Tolas that is in all 3000 Tolas were valued at Rs9233620
A provisional order of detention of the appellant dated April 1 1987 was passed by the respondent No 2 Mr Tarun Roy Joint Secretary to the Government of India Ministry of Finance Department of Revenue New Delhi the detaining authority under section 31 of the Act with a view to preventing the appellant from dealing in the smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods
The order of detention and the grounds of 50 detention both dated April 1 1987 were duly communicated to the appellant by the detaining authority
The case of the appellant was referred to the Advisory Board constituted under sub clause a of clause 4 of Article 22 of the Constitution of India for its opinion whether there was sufficient cause for the detention of the appellant
The Advisory Board after hearing the petitioner submitted its report dated May 13 1987
The Central Government by its order dated June 24 1987 in exercise of its powers conferred by section 8f of the Act confirmed the detention of the appellant and directed that under section 10 of the Act the appellant would be detained for a period of one year from the date of his detention that is from April 2 1987
At this stage it may be stated that before the order of detention was passed by the detaining authority the appellant Vijay Kumar was arrested on a charge under section 135 of the 
Being aggrieved by the order of detention as confirmed by the Central Government the appellant challenged the same by filing a writ petition before the Delhi High Court and as stated already the High Court dismissed the writ petition
Hence this appeal by special leave Before considering the contentions of the parties it may be stated here that similar detention orders were passed in respect of the said Uttam Chand Bhuramal Jain and Raj Kumar alias Chhotu
They also challenged their detentions by filing writ petitions before the Delhi High Court
The High Court however by the same judgment under appeal allowed their writ petitions and quashed the orders of detention
It is urged by Mr Thakur learned Counsel appearing on behalf of the appellant that the detaining authority was obliged to consider before passing the order of detention that the detenu was already in detention on a charge under section 135 of the  but there is no indication in the order of detention that such consideration was made or that the detaining authority was aware that the appellant was already under detention
It is submitted that as there has been non application of mind by the detaining authority as to the said fact of detention the order of detention is illegal and invalid
Further it is submitted by the learned Counsel that while the 51 offence under section 135 of the is a non bailable one the detaining authority proceeded on an erroneous assumption that the offence was bailable
In support of that contention the learned Counsel has drawn our attention to the fact as recorded by the High Court that the detaining authority stated in his counter affidavit that he was aware at the time of passing the detention order that Uttam Chand was in jail but there was every likelihood of his being released from jail as the offence under section 135 of the was a bailable one
It is urged by the learned Counsel that the detaining authority was not at all justified in passing the order of detention on such assumption
It is not correct to say that the detaining authority was not aware of the fact that the appellant was already in detention on a charge under section 135 of the 
Indeed in paragraph 13 of the grounds of detention it has been categorically noticed by the detaining authority that Bhuramal Jain Uttam Chand Narender Kumar Raj Kumar and the appellant were all arrested by the DRI officers on March 13 1987 and produced before the Additional Chief Metropolitan Magistrate New Delhi
Thus the detaining authority was fully aware of the fact of the arrest of the appellant
It is not necessary that in the order of detention such awareness of the detaining authority has to be indicated
It is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention
lt is true that in Uttam Chand s case the detaining authority proceeded on the basis that the offence for which he was arrested and detaining was a bailable offence
Although there is no such statement of the detaining authority in regard to the appellant it may be assumed that he was also of the impression that the offence under section 135 of the  for which the appellant was arrested and detained in jail was a bailable offence
But the question whether or not a particular offence for which a detenu has been detained is a bailable or non bailable offence does not in our opinion have any bearing on the question of passing an order of detention
Even though an offence is a non bailable one an accused may be enlarged on bail
Again an offence for which a detenu has been put under detention may be a bailable offence
It has been observed by this Court in Rameshwar Shaw vs District Magistrate Burdwan  that whether an order of detention can be against a person who is already in detention or in jail will always have to be determined in the facts and circumstances of each case
Again in Ramesh Yadav vs District Magis 52 trate Etah it has been ruled by this Court that merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed
The position has been made clear in Suraj Pal Sahu vs State of Maharashtra  While reiterating the principles of law laid down in Ramesh Yadav s case supra this Court further observes where the offences in respect of which the detenu is accused are so inter linked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State then subject to other conditions being fulfilled a man being in detention would not detract from the order being passed for preventive detention
In a recent decision in Smt
Sashi Aggarwal vs State of U P Writ Petition Crl No 735 of 1987 disposed of on 1111988 this Court has made a review of all the decisions on the point
One of us Jagannatha Shetty J speaking for the Court observed as follows Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail but the relevant facts in connection with the making of the order would make all the difference in every case
The validity of the order of detention has to be judged in every individual case on its own facts
There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons his preventive detention is necessary
 On a conspectus of the above decisions we are of the view that when a detenu is already under detention for an offence whether bailable or non bailable the detaining authority will take into his consideration the fact of detention of the detenu and as laid down in Sashi Aggarwal s case supra there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on a charge of a criminal offence
There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu
In other words two facts must appear from the grounds of detention namely 1 awareness of the detaining 53 authority of the fact that the detenu is already in detention and 2 there must be compelling reasons justifying such detention despite the fact that the detenu is already under detention
In the instant case it has been already noticed that the detaining authority was aware of the fact that the appellant was arrested and produced before the Additional Metropolitan Magistrate New Delhi
The grounds of detention also disclosed compelling reasons that the appellant should be preventively detained under the Act in spite of his detention on a charge under section 135 of the 
It is not the case of the appellant that the grounds of detention do not disclose compelling reasons
All that has been urged on behalf of the appellant is that there has been non application of mind by the detaining authority of the fact of detention of the appellant
We are however unable to accept the contention made on behalf of the appellant that there has been non application of mind by the detaining authority to the relevant facts
The detaining authority besides being aware of the fact that the appellant was already in detention has taken into consideration the relevant facts before passing the impugned order of detention under the Act which is apparent from the grounds of detention
In the circumstances the contention that the impugned order of detention should be struck down on the ground of non application of mind by the detaining authority is rejected
It is next contended on behalf of the appellant that the Advisory Board acted contrary to the principles of natural justice in not examining the witnesses of the appellant whom the appellant wished to examine in rebuttal of the allegations made in the grounds of detention and also in not considering the request of the appellant to have the assistance of his friend before the Advisory Board
In order to consider this contention a few facts may be stated
On April 291987 the Advisory Board held its meeting
On April 27 1987 the appellant made a representation to the Advisory Board
In that representation it has been stated by the appellant I want to produce in rebuttal of the allegations made against me Shri Raj Kumar Uttam Chand and Shri Narender as my witnesses
They are present and they may be examined in rebuttal of the allegations made against me in the grounds of detention
 A copy of this representation dated 2341987 was filed before the Advisory Board on 2941987
This fact has not been denied in the affidavit of the respondents
It is submitted by the learned Counsel of the appellant that when there is a specific prayer in the said presentation that the appellant 54 would like to examine certain witnesses who were present outside the Board room the Advisory Board acted illegally and in violation of the principles of natural justice in not giving the appellant an opportunity to examine the witnesses
Further it is submitted that the Advisory Board should have also allowed the appellant to have the assistance of his friend who was also waiting outside the Board room in defending the appellant before the Advisory Board
Affidavits of the said witnesses and also of the friend who was to assist the appellant were filed before the High Court in support of the allegation that they were all present and waiting outside the Board room
Mr Tarun Roy the detaining authority filed a counter affidavit wherein he stated that the appellant did not ask for the examination of these witnesses though he stated so in his representation regarding the examination of the witnesses
The appellant himself explained his case before the Advisory Board and kept silent as to whether his witnesses were present outside or whether he would like to examine them in rebuttal of the charges made against him
Further it is stated in the affidavit that the appellant did not bring his friend with him to assist him although he had stated in his representation that he might be permitted the assistance of an advocate or a friend at the time of hearing
The allegations of the appellant that he was denied his right to examine witnesses or the assistance of a friend have been stated by the detaining authority in his affidavit as totally false
It has been also averred by the detaining authority in his affidavit that the appellant was permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing but the appellant did not avail himself of the same
A similar contention was raised before the High Court
The High Court after referring to the affidavit of the detaining authority has observed that it was for the detenu at the time of hearing to submit to the Advisory Board that his witnesses who were present outside the Board room should be examined and that he should also be allowed assistance of his friend
Referring to the report of the Advisory Board dated May 13 1987 the High Court points out that while the appellant Vijay Kumar Raj Kumar and Uttam Chand appeared in person Bhuramal Jain was represented by his Counsel before the Advisory Board
The Advisory Board did consider the representation of Vijay Kumar and heard him and also the co detenus It appears from the observation made by the High Court that the appellant without making any prayer before the Advisory Board for 55 the examination of his witnesses or for giving him assistance of his friend started arguing his own case which in all probability had given an impression to the members of the Advisory Board that the appellant would not examine any witness
The appellant should have made a specific prayer before the Advisory Board that he would examine witnesses who were standing outside
The appellant however did not make any such request to the Advisory Board
There is no reason for not accepting the statement of the detaining authority that the appellant was permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing but the appellant did not avail himself of the same
In the circumstances we do not think that there is any substance in the contention made on behalf of the appellant that the Advisory Board acted illegally and in violation of the principles of natural justice in not examining the witnesses produced by the appellant at the meeting of the advisory Board and in not giving permission to the appellant to have the assistance of his friend
The appellant s wife sent a representation dated 1141987 to the Government and the appellant also sent a representation dated 2341987 to the detaining authority
It is the contention of the appellant that both the Government and the detaining authority made unreasonable delay in disposing of the representations
It is also complained that the representations were not considered independently inasmuch as the same were disposed of after the Advisory Board submitted its report
It is submitted that in view of the above facts the order of detention turns out to be illegal and invalid and should be quashed
In regard to the representation of the appellant s wife dated 1141987 we may refer to the additional affidavit affirmed by Mr SK Chaudhary Under Secretary to the Government of India Ministry of Finance Department of Revenue New Delhi on behalf of the respondents
In paragraph 2 of the additional affidavit it has been stated as follows I submit that in the above case the petitioner s wife s representation dated 1141987 was received by the office of the Ministry of State for Finance on 2141987 and from that office it was received in COFEPOSA Unit on 2241987 on which date the comments from the Directorate of Revenue Intelligence were called for
The comments from the said Directorate were received on 2741987 at 535 pm
These comments were received by 56 the Senior Technical officer on 2841987
He however could not take action on 2941987 as the hearing of the petitioner s case was fixed before the Advisory Board on that date
The Senior Technical officer put his note on 3041987 to the Detaining Authority
The Detaining Authority was however on leave on 151987 and 2nd May and 3rd May 1987 being holidays the Detaining Authority passed orders on 451987 rejecting the representation of the petitioner s wife and forwarded the file to the Minister of State for Finance for his consideration on behalf of the Central Government
The Minister rejected the representation on 651987 and the file was received in the section concerned on 751987
Thereafter the memo regarding rejection of the representation was issued on 851987
 It appears from paragraph 2 of the affidavit extracted above that comments from the DRI were received by the Senior Technical officer on 2841987
He however could not take action on 2941987 as hearing of the appellant s case was fixed before the Advisory Board on that date and accordingly he placed the matter with his note on 3041987 before the detaining authority
Mr Thakur Counsel for the appellant demurs to the dealing of the matter by the Senior Technical officer and not by the detaining authority himself
We do not think that any objection can be raised on this account
It is apparent that the Senior Technical officer dealt with the matter immediately on getting the comments from the DRI so that there was no delay in putting up the matter before the detaining authority or the Government as the case may be
Whatever steps he had taken must have been on behalf of the detaining authority and for expedition
Although he received the comments on 2841987 he could not take action on 2941987 as the hearing of the appellant s case was fixed before the Advisory Board on that date
It can be reasonably inferred from this statement that it was necessary for the Senior Technical officer to be present before the Advisory Board with the relevant records and consequently a day s delay in putting up the matter before the detaining authority was quite justified
It is however complained that when the representation was made to the Government it was not at all justified on the part of the detaining authority to reject the representation
In other words it is submitted the detaining authority had no jurisdiction to reject the representation when it was meant for the Government
It is true that the said SK Chaudhary has stated in his affidavit that the detaining 57 authority rejected the representation of the appellant s wife by his order dated 451987
Mr Kuldip Singh the learned Additional Solicitor General however points out on a reference to the record that the detaining authority did not reject the representation but only commented merits rejection Thus a wrong statement has been made in the affidavit
Even though the position is altered yet it is submitted by the learned Counsel for the appellant that the comment of the detaining authority merits rejection had influenced the mind of the Minister who considered the representation on behalf of the Government
Counsel further submits that there was no necessity for getting a comment from the detaining authority inasmuch as any comment by him against the detenu would influence the mind of the Government
We are unable to accept the contention
In our view unless the comments of the relevant authorities are placed before the Minister it will be difficult for him to properly consider the representation
There is no substance in the contention that any comment from the detaining authority would influence the mind of the Government
Such assumption is without any foundation
The contention in this regard is accordingly rejected
As regards the representation dated 2341987 of the appellant to the detaining authority it appears from the statement made in paragraph 3 of the said additional affidavit that it was rejected by him on 451987
There is a further statement that after such rejection the file was forwarded to the Minister of State for Finance for his consideration on behalf of the Central Government and the Minister rejected the representation on 651987
It is contended by Mr Thakur learned Counsel for the appellant that as the representation was addressed to the detaining authority there was no necessity for forwarding the file to the Minister after the representation was rejected by the detaining authority
The learned Additional Solicitor General however points out with reference to the records that the file was not forwarded to the Minister after the rejection of the representation by the detaining authority
There was therefore a mistake in the statement made in paragraph 3 of the said additional affidavit
In our opinion nothing turns out on the fact that after the representation was rejected the relevant file was sent to the Minister for his consideration
We are also told by the learned Additional Solicitor General that the report of the Advisory Board is dated May 13 1987 and both the representations were disposed of by the detaining authority and the Government on May 6 1987 that is much before the report of the 58 Advisory Board and as such there is no question of the consideration of the representations of the appellant and his wife being influenced by the report of the Advisory Board
It is apparent that as the report of the Advisory Board is dated May 13 1987 there is no foundation for the contention of the appellant that the consideration of the representations was influenced by the report of the Advisory Board
It is urged by the appellant that he was greatly prejudiced as he was not supplied with the copies of the documents that were relied upon and taken into consideration by the detaining authority along with the ground of detention and that such documents as asked for by him were given to him only on 2051987 and therefore there was a delay of 28 days
A similar contention was advanced before the High Court
According to the respondents the documents were all supplied to the appellant with the grounds of detention
In his representation the appellant had asked for four documents and the High Court was satisfied that all these four documents had in fact been supplied to the appellant
Accordingly it has been observed by the High Court that the appellant cannot make any grievance that these documents were supplied to him only on 2051987 and not along with the grounds of detention
There is therefore no factual foundation in the complaint made by the appellant that he was not supplied with the relevant documents along with the grounds of detention
The last point that has been urged on behalf of the appellant is that the Government has not applied its mind while confirming the detention of the appellant for the maximum period of one year from the date of detention as prescribed in section 10 of the Act
It is submitted that some reason should have been given why the maximum period of detention is imposed on the appellant
This contention in our opinion is devoid of any merit
Section 10 of the Act provides inter alia that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period
Section 10 does not provide that in imposing the maximum period of detention any reason has to be given
In confirming the order of detention it may be reasonably presumed that the Government has applied its mind to all the relevant facts and thereafter if it imposes the maximum period of detention it cannot be said that the Government has not applied its mind as to the period of detention
In any event under section 11 of the Act a detention order may at any time be revoked or modified by the Government
In the circumstances we do not think that the detenu was in the least prejudiced or that there has been 59 non application of mind by the Government to the question of period of detention of the detenu
This contention of the appellant also fails
No other point has been urged in this appeal
For the reason aforesaid the judgment of the High Court is affirmed and the appeal is dismissed
JAGANNATHA SHETTY J
I agree respectfully with the Judgment of my learned brother MM Dutt J but I add a few words of my own on the ever recurring question
The first question is as to the legality of an order of detention of the person who was already in custody
The Law Report contains several decisions on this point and they furnish an instructive lesson for both sides
In all the cases there is however one uniform principle stated and reiterated
It is this The detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary
The question now raised is what should be the compelling reason justifying the preventive detention if the person is already in jail and where one should find it Is it from the grounds of detention or apart from the grounds of detention It was urged that apart from the grounds of detention there must be some other material disclosed to the detaining authority that if the detenu is released on bail he would again carry on the prejudicial activities
I do not think that the contention is sound
There cannot be any other material which can enter into the satisfaction of the detaining authority apart from the grounds of detention and the connected facts there in
The satisfaction of the detaining authority cannot be reached on extraneous matters
The need to put the person under preventive detention depends only upon the grounds of detention
The activities of the detenu may not be isolated or casual
They may be continuous or part of a transaction of racket prejudicial to the conservation or augmentation of foreign exchange
Then there may be need to put the person under preventive detention notwithstanding the fact that he is under custody in connection with a case
As said by Sabyasachi Mukharji J in Suraj Pal Sahu vs State of Maharashtra at 391 
But where the offence in respect of which the detenu is accused are so interlinked and continuous in 60 character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State then subject to other conditions being fulfilled a man being in detention would not detract from the order being passed for preventive detention
 There cannot however be any uniform principle to be applied in this regard
Each case has to be judged on its own facts and on its own grounds of detention
If the grounds are germane it would be perfectly legitimate exercise of power to make an order of detention
In the instant case having regard to the nature of the grounds furnished to the detenu I agree with my learned brother that there is hardly any justification to find fault with the order of detention
The next aspect which needs to be clarified is whether it is necessary for the concerned authority to give special reasons for directing the detention for the maximum period prescribed under the Act
It was urged that it is a must for the concerned authority to give special reasons
And if no such reasons are given then it amounts to non application of the mind
The decision of the Madhya Pradesh High Court Gwalior Bench in Bharat vs District Magistrate was relied upon in support of the contention
There it was observed at p 186
We did not find in the records consideration of relevant circumstances that obtained on the date when the confirmation was made in each case
No reasons are given as to why the authority concerned considered it necessary to continue detention in each case for maximum period of twelve months
Whether the objective sought to be fulfilled in each case could be subserved by fixing the period of continued detention for a lesser period was not at all considered
We are unable to subscribe to this view
It is against the purpose and scheme of the COFEPOSA Act
The order made under Section 31 is in the nature of an interim order
It is subject to the opinion of the Advisory Board under Section 8f of the COFEPOSA Act which provides 61 8
Advisory Board For the purposes of sub clause a of clause 4 and sub clause c of clause 7 of Article 22 of the Constitution xxx xxx xxx xxx xxx xxx xxx xxx xxx f in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned the appropriate Government shall revoke the detention order and cause the person to be released forthwith
 If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person the concerned authority may confirm and continue the detention of the person for such period as it thinks fit
The expression as it thinks fit in Section 8f of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention
The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under Section 10
The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention for any period even upto the maximum period prescribed
Section 11 provides for revocation of detention order
The detention order may at any time be revoked or modified
When the power to revoke the order of detention could be exercised at any time it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act
SL Appeal dismissed


Summary:
The appellants had granted a lease of commercial premises in favour of the respondent company who carried on the business in clothing and textiles in the demised premises
Later the appellants moved an application under section 13 of the East Punjab Urban Rent Restriction Act I94Y seeking eviction of the respondent inter alia on the ground that it had unauthoirsdly and without the consent of the appel lant inducted two sub tenants a tailor and an ice cream vendor in two portions of the premises
The defence of the respondent in the written statement was that the maintenance of such booths had become a necessary adjunct of all big shops in modern shopping centres and that the respondent remained in the exclusive possession of the demised premises
The appellants relied particularly on the Report and evidence of the Court Commissioner who in his report substantially corroborated appellants  charge of sub letting
On the other hand the respondent relied upon the agreements entered into by it with the alleged sub tenants which according to it clearly excluded any possibility of sub letting
The respondent also examined ML Sharma RW 3 a senior architect in Chandigarh Administration who PG NO 310 PG NO 311 produced the Plans Ext
R 4 relating to certain alterations in the demised premises
The Rent Controller on an appreciation of the evidence was persuaded to the view that while the allegations of sub letting in favour of the tailor had not been established the case of sub letting so far as the Ice cream parlour was concerned had clearly been established
The Rent Controller held that the evidence on record indicated the exclusive possession of M S Kwality Ice Cream
The Rent Controller further held that in the circumstances of the case it was also legitimate to draw an inference and raise a presumption that monetary consideration alone had prompted the respondent into the transactions
The respondent filed an appeal before the District Judge and the Appellate Authority affirmed the finding of the Rent Controller on the question of sub letting in so far as the Ice Cream Parlour was con cerned
The Appellate Authority also found that even in the case of the tailor there was sub letting
In Civil Revision the High Court upon a re appreciation of the evidence set aside the concurrent finding of the Courts below in regard to the element of exclusive possession and set aside the order of eviction passed by the Courts below
The High Court relied on the agreements between the respondent and the sub tenants and held that the conditions prescribed in these documents did prima facie indicate that it was a case of licensees and not of sub letting
The High Court took note of the procedural objection in regard to the appointment of the local Commis sioner without notice to the respondent and was of the view that there were circumstances to show that his report was not factually correct
On behalf of the appellants it was contended that i the High Court was in error in interfering in exercise of its revisional jurisdic tion with the concurrent finding of fact recorded by the courts below  ii the reliance on the High Court on the evidence of RW 3 and Plans Exhibit R4 on the point of exclusive possession was wholly misplaced iii a finding of fact which was the result purely of appreciation of oral evidence by the trial court could not be interfered with by an Appellate Court and a fortiorari in Revision and iv the view of the High Court as to the alleged infirmity of the Court Commissioner s report was erroneous
On behalf of the respondent it was contended that i where a finding of fact was shown to have been rendered infirm and vitiated by a misreading of evidence the PG NO 312 Revisional jurisdiction under the Act which was wider than that under section 115 CPC could be invoked to correct errors even in findings of facts ii the finding of a question of sub tenancy being a mixed question of fact and law this Court even on an independent consideration of the whole matter should not interfere as one of the essential ingredients in the concept of a sub lease viz the existence of monetary consideration in the form of Rent  as dis tinct from consideration by way of services was wholly lacking and iii the appear should fail on the correctness of the finding of the High Court on the lack of exclusive possession alone and iv the two transactions lacked the normal and the usual indicia of tenancy and were no more than mere personal privileges or personal licence to occupy and that no interest in the property was transferred
Allowing the appeal this Court HELD 1
One of the twin principal tests by which a lease was distinguishable from the relationship created under a licence is the element of the right to exclusive possession involving the transfer of an interest in the property the other being the Rent  stipulated for the grant
The grant only of the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence
323B C Wood vs Leadbitter 153ER 351 354 Glenwood Lumber Co vs Phillips
l9O4 AC 405 408 Associated Hotel of India vs RN kapoor  BM Lall vs Dunlop Rubber Co   27 Qudrat ullah vs Municipal Board Bareilly l974 SCC 202 204 Board of Revenue vs AN Ansari l976 3 SCR 661 665 and Khulil ahmad Bashir Ahmed vs Tufelhussain Samasbhai Sarangpurwala JT 346 referred to 2
It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that further the grant be for consideration
323F Dipak Banerjee vs Smt
Lilabati Chakkroborty 3 454 456 referred to
Exclusive possession itself is not decisive in favour of a lease and against a mere licence for even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease
In the last analysis the question whether PG NO 313 a transaction is a lease or a licence turns on the operative intention of the parties and there is no single litmus test to distinguish one from the other
324C D Cobb vs Lane l952 1 All ER 1198 Merchant vs Charter 19773 3 All ER 918 922 and MN Clubwala vs Fida Hussain Sahel l9d4l 6 SCR 642 referred to 4
In deciding whether a grant amounts to a lease or only a licence regard must be had more to the substance than the form of the transaction
It is determined by the law and not by the label the parties choose to put on it
To give exclusive possession there need not be express words to that effect it is Sufficient if the nature of the acts done by tie grantee show that he had and was intended to have the right of exclusive possession
The fact that the agreement contained a clause that no tenancy was to be created will not of itself preclude the instru ment from creating a lease
l327G H 328A BM Lall vs Dunop Rubber Co l968j 1 SCR 23 Z7 referred to 5
The scope of revisional jurisdiction depends on the language of the statute conferring the revisional jurisdiction
Revisional jurisdiction is only a part of the appellate jurisdiction and cannot be equated with that of a full fledged appear
Though the revisional power depending upon the language of the provision might be wider than revisional power under section 51 of the Code of Civil Procedure yet a revisional court is not second or first appeal
330H 331A 6
When the findings of fact recorded by the Courts below are supportable on the evidence on record the revisional Court must indeed be reluctant to embark upon an independent re assessment of the evidence and to supplant a conclusion of its own so long as the evidence on record admitted of and supported the one reached by the Courts below
In the circumstances the concurrent finding as to exclusive possession of Ms Kwality Ice Creamwas not amenable to reversal In revision
331B D 7
The question whether the statement of the witnesses in regard to what was amenable to perception by sensual experience as to what they saw and heard is acceptable or not is the area in which well known limitation on the powers of the appellate Court to reappreciate the evidence falls
The appellate Court if it seeks to reverse those findings PG NO 314 of fact must give cogent reasons to demonstrate how the trial Court fell into an obvious error
33H 335A Watt vs Thomas  487 488 Benmax vs Austin Motor Co Ltd 119551 2 WLR 418 422 and Sarju Pershad vs Jwaleshwari 4Pratap Narain Singh   783 referred to
It is no doubt true that in the present case the order of the trial court appointing a Commissioner did not in terms direct the parties to appear before the Commissioner
There is this infirmity in the proceedlngs of the Commissioner
But It is possible to construe the power to appoint a Commissioner to inspect the extant state and natur of structures as not confined to Rule 9 of Order 26 but referable to Rule 7 of Order 39 CPC where the court can dispense with prior notice should it appear to the court that the very object of making of appointment of a Commissioner would be defeated and frustrated by the issue of prior
335E G  Latchan Naidu and Anr
vs Rama Krishan Ranga Rao Bahadur Bobbili Samasthanam 9
A more careful examination of the context in which ML Sharma the senior architect who produced Ext
R 4 was examined shows that Ext
R 4 was relied upon in rebuttal of and in answer to an Altogether different ground ie the ground of unauthorised structural alterations and the alleged damage caused to the building thereby and to show that the structural alterations had been authorised by the first appellant
It is quite plain that Respondent itself did not seek to rely on this evidence on the point of exclusive possession or lack of it
Reliance on the plans to take away the effect of the positive evidence on record was not therefore justified
330D E G 10
In the present case the appellants specifically pleaded sub letting
Respondent understood that pleading as to imply all the incidents of sub letting including the element of Rent  and specifically traversed that plea by denying the existence of consideration
Parties went to the trial with full knowledge of the ambit of the case of each Other
In the circumstances the pleadings would require to be construed liberally
336F Ram Sarup Gupta vs Bishun Narain Inter College   referred to
PG NO 315 11
The burden of establishing facts and contentions which support the party s case Is on the party who takes the risk of non persuasion
If at the conclusion of the trial a party has failed to establish these to the appropriate standard he will lose
although the burden of proof as a matter of law remains constant through out a trial the evidential burden which rests initially upon a party bearing the legal burden shifts according to the weight of the evidence adduced by the party during the trial
In the circumstances of the case the appellants having been forced by the Courts below to have established exclusive possession of the Ice Cream Vendor of a part of the demised premises and the explanation of the transaction offered by the respondent having been found by the Courts below to be unsatisfactory and unacceptable it was not impermissible for the Courts to draw an inference having regard to the ordinary course of human conduct that the transaction must have been entered into for monetary considerations
337FH 338A B