vil Appeal No 19531954 of 1980
From the Judgment and Order dated 2311980 of the Bombay High Court in SCA No 240 of 1974
NM Ghatate for the Appellants
B Kanta Rao for the Respondents
The Judgment of the Court was delivered by SHARMA J
These appeals arise out of a proceeding under the CP and Berar Letting of Houses and Rent Control Order 1949 hereinafter referred to as the Rent Control Order initiated by Shah Gokuldas appellant in CA No 1954 of 1980 respondent in the other appeal for permission to determine the lease of Bhagwanji the original tenant
After the death of Bhagwanji during the pendency of the case Rashiklal and others the appellants in CA No 1953 of 1980 were substituted as his legal representatives
The landlord s prayer was based on alleged wilful default in payment of rent and bona fide requirement under sub clauses ii and vi respectively of Clause 133 of the Rent Control Order
The allegations were denied by the tenant and the Rent Controller dismissed the application
The landlord s appeal was also rejected by the appellate authority the Resident Deputy Collector
The landlord thereafter approached the High Court which confirmed the impugned orders so far as the ground of bona fide necessity was concerned but allowed the application under Article 227 of the Constitution of India holding that the tenant was a habitual defaulter in payment of rent and therefore liable to eviction
The appellants in CA No 1953 of 1980 have challenged the order of their eviction and the landlord Shah Gokuldas has appealed against the finding of the courts below negativing his case of bona fide requirement
So far as CA No 1954 of 1980 is concerned both the Rent Controller and the Resident Deputy Collector have on a careful consideration of all the relevant circumstances held that the landlord 442 applicant has failed to prove his case of bona fide require ment
The High Court while confirming the finding has again considered the materials on the record
The learned counsel for the landlord has not been able to point out any accept able ground for interfering with the concurrent findings of the three courts and CA No 1954 of 1980 is therefore dismissed
So far as the other appeal is concerned the High Court has disagreed with the view of the Rent Controller which was affirmed by the appellate court
It has been contended on behalf of the appellants Rashiklal and others that having regard to the conduct of the parties in payment and receipt of rent of several months at a time it should be held that there was an implied agreement between them to do so and the landlord is now not entitled to insist on the rent to be paid every month
Reliance was placed on the decision of this Court in SP Deshmukh vs Shah Nihal Chand Waghajibai Gujarati 5
The case of the landlord has been that rent was payable on the expiry of each month and since this was not done the tenant was liable to eviction
The landlord filed a schedule in the trial court showing the intervals at which rents had been paid by the tenant during the period of 2 years immediately preceding the filing of the case
The schedule indicates that the rent was paid according to the alleged stipulation only for a brief period and the rent for the rest of the period was paid in lump sums represent ing the rent of several months together
Admittedly the accumulated rents were accepted by the landlord without any objection at any point of time and the tenant had no occa sion to assume that the landlord was aggrieved by the manner in which rents were being paid
The question arises as to whether in these circumstances the High Court was entitled to reverse the concurrent finding of the two courts below
The tenant denied in express terms and arrangement pleaded by the landlord as mentioned above and asserted that rent was payable at his convenience
Mr Kanta Rao the learned counsel for the landlord contended that a plea about an alleged agreement to pay rent at the convenience of the tenant has to be rejected as untenable in law
According to the learned counsel an inference of implied agreement is possible by the conduct of the parties only if it is shown that the rent was being paid and accepted on a fixed inter val as for example if it could be shown that the rent was always paid after every 3 months or for that matter every 2 months or every 4 months then a clear cut 443 pattern emerges on the basis of which an implied agreement can be assumed to have come in existence
No such inference is permissible from mere irregular and erratic payment
Reliance was placed on the decisions of Pandurang Tukaram Rajkondawar vs Balaram Madhaorao Chavan 1985 Mh
LJ 109 Shishir Hari Mahajan vs Banarasibai Rodmal Sharma and another 1982 Mh
LJ 908 and Nathuji Narayanrao Udapure vs Narendra Vasanjibhai Thakkar and another 1981 Mh
LJ 446
The relevant provisions of the Rent Control Order require a tenant to be habitually in arrears with the rent as a condition for the grant of the permission by the au thority to the landlord to determine the lease
It is sig nificant to note that the condition mentioned in the Rent Control Order is different from the condition in several other statutes where mere non payment of rent for a particu lar period has been provided as adequate ground for evic tion of the tenant
The question whether the tenant was a habitual defaulter arose before the Supreme Court in SP Deshmukh s case supra and was answered in the negative in the following words Normally a monthly tenant is under an obli gation to pay rent from month to month but this obligation is subject to a contract to the contrary
Such a contract need not be re flected in a formal document and can be spread out from the conduct of the parties spread over a fairly long period of time
The evi dence in the case which was believed by the two tribunals of fact shows that the tenant has been paying rent at an interval of 3 or 4 months which the landlord has been willingly accepting and always without even so much as a murmer
We do not see any reason for holding that unless the rent was paid and accepted at a fixed period of interval no such implied agreement can be inferred
In the SP Desh mukh s case supra the rent had been paid at the varying interval of 3 or 4 months
The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly
If he receives the same under a protest and warns the tenant to be regular in payment in the future he cannot be assumed to have agreed to a modified agreement in this regard
But if he without any objection and without letting the tenant know his thought process continues to receive rent at intervals of several months he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction
Having lulled the tenant in the belief that things 444 were all fight the landlord was under a duty to serve him with a notice demanding regular payment if he wished to insist upon it
In the case before us there was no objection whatsoever raised on behalf of the landlord against the delayed payments
We therefore hold that the High Court was not fight in reversing the concurrent finding of the two courts below
Accordingly the impugned judgment is set aside that of Resident Deputy Collector is restored and the appeal is allowed with costs throughout
Before closing however we would like to observe that in view of the atti tude of the parties disclosed in the present case the appel lant should hereafter pay the rent regularly in the succeed ing month failing which he may be liable to be adjudged a habitual defaulter
NVK
CA No 195380 allowed and CA No 195480 dismissed


Summary:
ESSO Standard Refining Company of India Ltd and Lube India Ltd were acquired by the ESSO Acquisition of Under takings in India Act 1974 and vested in the Hindustan Petroleum Corporation Ltd
In 1978 Caltex Oil Refining India Ltd another Government company was amalgamated with HPCL
Consequent upon this integration of management staff of CORIL and HPCL dispute arose as to their fitment in equiva lent groups and fixation of inter se seniority
The Tandon Committee appointed to examine the issues recommended the application of the principles of 1 functional similarity and 2 co equal responsibility for equating positions in the two companies
The HPCL appointed two functional direc tors for framing a rationalisation scheme
In the said scheme for the purpose of equation of 10 grades of CORIL with 8 grades of HPCL some compression was made in the lower grades namely R6 A and R6 B of CORIL were clubbed together and equated with grade A of HPCL
Again grade R7 A and R7 B were clubbed together and equated with grade B of HPCL
The complaint of the petitioners former officers and employees of CORIL was that the rationalisation scheme was arbitrary in that the fitment of officers of CORIL and those of the ESSOLIL in the HPCL scales of pay had been made without the equation of posts which was a sine qua non for integration of officers coming from different sources so much so that they had been consistantly fitted in one or two grades lower in HPCL vis a vis their counterparts in ESSOLIL performing similar duties and having similar re sponsibilities and status that in the Tandon Committee report the post of General Sales Representative of ESSO had been equated with the post of Retail Development Supervisor of CORIL on the principle of functional similarity and co equal responsibility that since these two posts were con gruent they should have been fitted in the same group that is in Group B of the new HPCL 363 Grade structure whereas in the said scheme the post of General Sales Representative of ESSO E 6 and that of Depot Superintendent E 6 have been placed in the Salary Group B of HPCL while the post of Retail Development Supervisor R6 A and Depot Superintendent Relief Depot Superintendent R6 B of CORIL have been placed in Salary Group A of HPCL
It is further averred that the post of Depot Super intend ent A R7 B and that of Marketing Representative RT A of CORIL have been placed in the Salary Group B of HPCL but similar posts of ESSO being E 5E5A have been placed in Salary Group C of HPCL that the compression should have been made at the higher grades namely grades R 11 and 12 and the grade of General Manager and that the petitioners were forced to signify their consent to the said scheme under duress
They therefore prayed for a declaration that the said scheme was violative of Articles 14 and 16 of the Constitution of India
For the respondents it was contended that the two committees that were appointed by the Chairman of HPCL considered the different methods of fitment and equivalence of different pay scales of ESSO LIL and CORIL with the pay scales of IOC that the reports submitted by these two committees were considered by the HPCL along with the sub missions made by the officers  association through their representations before approval that the terms and condi tions of the new appointments as per the rationalisation scheme were circulated to each of the CORIL employees with its letter dated July 7 1980 and they having accepted in writing the said scheme they were precluded from challenging the same
Allowing the writ petitions HELD 1
While it is not within the domain of the Court to make the equation of posts for the purpose of integra tion it is surely the concern of the Court to see that before the integration is made and consequent fitment of officers in different gradesscales of pay is effected there must be an equation of different posts in accordance with the principle Of functional equivalence and co equal responsibility
372G H In the instant case no evidence or material has been placed before the Court on behalf of the HPCL in support of such equation of posts
The rationalisation scheme with regard to the placing of the officers of CORIL in different IOCHPCL grades of pay therefore cannot be accepted in full
372H 364 2
This is not for the Court to say whether the compres sion should have been made in the lower grades or in the higher grades
By such compression grades R6 A and R7 A have been upgraded and the persons placed in those grades have been benefitted
If compression had been made in the upper grades there would have been much complications in view of the functional differences for the grade of General Manager cannot be clubbed together with a lower grade
The contention that the compression should have been made in the higher grades of CORIL cannot therefore be accepted
371F G 3
The apprehension of the petitioners that in the event of their refusal to accept the scheme their services will be terminated cannot be rejected
It may be that there was no reasonable basis for such apprehension but the plea that because of such apprehension the petitioners had no other alternative than to accept the scheme cannot be disbe lieved
371B 4
Having regard to the interest of several officers of HPCL who would be affected if the scheme is set aside and in view of the fact that during the eight years in which the scheme had been in operation many changes had taken place with regard to the positions and ranks of the officers of HPCL including petitioners HPCL is directed to appoint a committee consisting of high officials of HPCL and Central Government other than those who were in the previous com mittees within one month for the purpose of considering the question of equation of posts on the basis of functional similarity equivalence and co equal responsibility and to give effect to the same
Promotions and the existing posi tions of the officers of HPCL by virtue of the implementa tion of the impugned scheme not to be interfered with
373D F G 374B