Appeal No 84 of 1957
Appeal from the judgment and decree dated November 7 1955 of the Bombay High Court in Appeal No 629 of 1955 arising out of the judgment and decree dated August 9 1955 of the
City Civil Court Bombay in Suit No 2178 of 1954
AV Viswanatha Sastri and I N Shroff for the appellants
Purshotam Tricumdas and C P Lal for the respondents
March 31
The following Judgment of the Court was delivered by IMAM J
The sole question considered and decided by the High Court was whether the suit filed by the appellants in the City Civil Court could be entertained by that Court having regard to the provisions of section 28 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Act
The High Court was of the opinion that the City Civil Court had no jurisdiction to entertain the suit
It did not pronounce any opinion on the merits of the appellants  case
The only question which requires con sideration in this appeal is whether the High Court correctly decided that the City Civil Court had no jurisdiction to entertain the suit filed by the appellants
The first plaintiff in the suit before the City Civil Court was a tenant of the premises in question under the first defendant
The second and third plaintiffs were persons to whom the said premises were sublet by 369 the first plaintiff
The first defendant as landlord of the premises in suit gave notice to quit to the first plaintiff on December 6 1947
Thereafter he filed suit  No 4834400 of 1948 in the Court of Small Causes Bombay on April 291948 whereby he sought to evict the first plaintiffs To that suit the first defendant also made the second and the third plaintiffs parties alleging that they were trespassers and had no right to be on the premises
The Small Cause Court held that the second and third plaintiffs were not lawful subtenants and the subletting by the first plaintiff to them being contrary to law the latter had deprived himself of the protection of the Act
It accordingly passed a decree for eviction of all the plaintiffs of the present suit
An appeal against the decree was unsuccessful and a revisional application to the High Court of Bombay was summarily dismissed by that Court
Thereafter the present suit No 2178 of 1954 was filed by the appellants in the Bombay City Civil Court on September 20 1954
In this suit the appellants prayed for a declara tion that the first plaintiff was a tenant of the defendants and was entitled to protection under the Act and that the second and the third plaintiffs were lawful subtenants of the first plaintiff and were entitled to possession use and occupation of the premises as subtenants thereof
The City Civil Court held that it had jurisdiction to entertain the suit but dismissed the suit on the ground that there bad been no lawful subletting by the first plaintiff of the premises to the second and the third plaintiffs as the provisions of section 10 of the Bombay Rents Hotel Rates and Lodging House Rates Control Act 1944 Bombay Act No VII of 1944 hereinafter referred to as the Bombay Rents Act 1944 had not been properly complied with
Against that decision the appellants appealed to the Bombay High Court which was dismissed
The High Court disagreed with the view of the Judge of the City Civil Court that he had jurisdiction to entertain the suit but did not record any decision on the merits of the appellants  case
The preamble of the Act states that it was expedient 47 370 to amend and consolidate the law relating to the control of rents and repairs of certain premises of rates of hotels and lodging houses and of evictions
The entire provisions of the Act read as a whole show that the Act was passed to achieve that purpose
The Act defines  landlord  to mean  any person who is for the time being receiving or entitled to receive rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person or as a trustee guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant  and includes any person not being a tenant who from time to time derives title under a landlord and further includes in respect of his subtenant a tenant who has sublet any premises  and  tenant  to mean  any person by whom or on whose account rent is payable for any premises and includes a such subtenants and other persons as have derived title under a tenant before the coming into operation of this Act a any person to whom interest in premises has been transferred under the proviso to section 15 b any person remaining after the determination of the lease in possession with or without the assent of the landlord of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act c any member of the tenant s family residing with him at the time of his death as may be decided in default of agreement by the Court
 Section 12 gives protection to a tenant from eviction if he pays or is ready and willing to pay standard rent and permitted increases
Section 13 states the grounds upon which the landlord is entitled to recover possession of any premises
Amongst the numerous grounds one is if the tenant had since the coming into operation of the Act sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein
Section 14 states Where the interest of a tenant of any premises is determined for any reason any subtenant to whom the premises or any part thereof have been lawfully 371 sublet before the coming into operation of this Act shall subject to the provisions of this Act be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued
 Section 28 of the Act deals with jurisdiction of courts and it states  1 Notwithstanding anything con tained in any law and notwithstanding that by reason of the amount of the claim or for any other reason the suit or proceeding would not but for this provision be within its jurisdiction a in Greater Bombay the Court of Small Causes Bombay aa in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act 1887 such Court and b elsewhere the Court of the Civil Judge Junior Division having jurisdiction in the area in which the premises are situate or if there is no such Civil Judge the court of the Civil Judge Senior Division having ordinary jurisdiction shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of subsection 2 no other court shall have jurisdiction to entertain any such suit proceeding or application or to deal with such claim or question Section 29 deals with appeals
It provides that there will be no further appeal from the appellate order
Section 29A however states that nothing contained in sections 28 or 29 shall be deemed to bar a party to a suit proceeding or appeal mentioned therein in which a question of title to premises arises and is determined from suing in a competent court to establish his title to such premises
The plaint in the suit filed by the appellants in the City Civil Court clearly asserts that the first plaintiff was entitled in law to sublet the premises in question to the second and third plaintiffs and that there had been a lawful subletting of the premises to them
It 372 was not necessary for the first plaintiff to comply with the provisions of section 10 of the Bombay Rents Act 1944
It further alleged that the Appeal Court of Small Causes of Bombay erred in holding that the first plaintiff could sublet the premises only if he had complied with the provisions of section 10 of the aforesaid Act
According to para
11 of the plaint the plaintiffs asserted that they were always ready and willing to pay the rent in respect of the said premises and to observe and perform the terms and conditions of the tenancy
Paragraph 12 states the declaration which the plaintiffs prayed for in the suit which is in the following terms  The plaintiffs submit that they are entitled to a declaration that 1st plaintiff is a tenant of the said premises within the meaning of the Bombay Rents Hotel and Lodging House Rates Control Act of 1947 and that the 2nd and 3rd plaintiffs are entitled to the possession use and occupation of the said premises as the lawful subtenants of the 1st plaintiff in respect of the said premises
Clauses a and b of para
18 of the plaint contain the relief sought by the plaintiffs
They are in substance what is stated in para
12 though separately stated for the first plaintiff and second and third prayer in cl
c of the defendants their plaintiffs respectively
The para an injunction against servants or agents restraining them from proceeding further with the execution of the decree of the Court of Small Causes in suit No 4834400 of 1948
It is manifest from the assertion in the plaint and the nature of the relief asked for that the plaintiffs based their case on the provisions of the Act
According to them the Act gave the first plaintiff protection and the second and third plaintiffs were entitled to remain in possession as subtenants of the first plaintiff
They accordingly sought to avoid eviction by seeking an injunction against the execution of the decree for eviction
One of the grounds upon which a landlord is permitted to evict a tenant under section 13 of the Act is that he has since the coming into operation of the Act sublet the premises or assigned or transferred in any other manner his interest therein
The 373 Act however saved a subletting before its commencement provided the premises had been lawfully sublet
Tenant  in the Bombay Rents Act 1944 means  any person by whom or on whose account rent is payable for any premises and includes every person I from time to time deriving title under a tenant
 It was never pretended here or in the High Court as indeed it could not be that outside the Act a subtenancy would continue to subsist and the sub tenant would become the tenant when the principal tenancy itself had been lawfully terminated
As the definition of tenant  in the Bombay Rents Act 1944 included a subtenant that Act required under section 10 certain conditions to be complied with for the creation of a lawful subtenancy as a statutory status of a tenant was being conferred on a subtenant unknown to the ordinary law
Even a lawful termination of the principal tenancy would not affect the subtenant
In suit No 4834400 it was finally held by the Appeal Court that the first plaintiff had not lawfully sublet the premises and as his tenancy had been terminated he and his subtenants were liable to be evicted
The plaintiffs seek for a redetermination of these very questions in the suit filed by them in the City Civil Court
The plaintiffs rely upon section 29A of the Act in justification of the suit filed by them in the City Civil Court
According to them questions of title are expressly allowed to be reagitated in a competent Civil Court other than those specified in section 28 even if such a question arose and was determined by a court exercising jurisdiction under that section
This contention of the plaintiffs makes it necessary to construe the provisions of sections 28 and 29A of the Act
In a suit for recovery of rent where admittedly one party is the landlord and the other the tenant section 28 of the Act explicitly confers on courts specified therein jurisdiction to entertain and try the suit and expressly prohibits any other court exercising jurisdiction with respect thereto
Similarly in a suit relating to possession of premises where the relationship of landlord and tenant admittedly subsists between the parties jurisdiction to entertain and try such a suit is in the 374 courts specified in section 28 and no other
All applications made under the Act are also to be entertained and disposed of by the courts specified in section 28 and no other
In all such suits or proceedings the courts specified in section 28 also have the jurisdiction to decide all claims or questions arising out of the Act or any of its provisions
The words employed in section 28 make this quite clear
Do the provisions of section 28 cover a case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of its provisions  The answer must be in the affirmative on a reasonable interpretation of section 28
Suit No 4834400 of the Court of Small Causes Bombay was admittedly by a landlord
Eviction of the tenant and those to whom he had sublet the premises was sought on the ground that the latter were trespassers and the former was not entitled to remain in possession that is to say that none of the defendants to that suit were protected from eviction by any of the provisions of the Act
The suit in substance was a denial of the right of the defendants as tenants
The claim of the defendants was that they were protected by the provisions of the Act
In such a suit the claim of the defendants was one which arose out of the Act or any of its provisions and only the courts specified in section 28 and no other could deal with it and decide the issue
The present suit filed in the City Civil Court raised in substance a claim to the effect that the plaintiffs were the tenants of the premises within the meaning of the Act
Such a claim was one which arose out of the Act or any of its provisions
The suit related to possession of the premises and the right of the landlord to evict any of the plaintiffs was denied on the ground that the first plaintiff was a tenant within the meaning of the Act and the premises had been lawfully sublet by him to the second and third plaintiffs
The City Civil Court was thus called upon to decide whether the first plaintiff was a tenant of the premises within the meaning of the Act and whether he had 375 lawfully sublet the same to the second and third plaintiffs
The City Civil Court therefore had to determine whether the plaintiffs had established their claim to be in possession of the premises in accordance with the provisions of the Act
As the tenancy of the first plaintiff had been terminated by the landlord this plaintiff could resist eviction only if he established his right to continue in possession under the provisions of the Act
On the termination of the tenancy of the first plaintiff outside the provisions of the Act the subtenancy would come to an end and the landlord would be entitled to possession
This could be denied to him only if the second and third plaintiffs could establish that the premises had been lawfully sublet to them and under section 14 of the Act they must be deemed to be tenants of the premises
in other words the City Civil Court could not decree the suit of the plaintiffs unless their claim to remain in possession was established under the Act or any of its provisions
Independent of the Act the plaint in this suit disclosed no cause of action
Section 28 obviously contemplates the filing of any suit relating to possession
of any premises to which any of the provisions of Part 11 of the Act apply between a landlord and a tenant and it authorizes the court to deal with any claim or question arising out of the Act or any of its provisions in such a suit
The suit of the plaintiffs filed in the City Civil Court certainly is one relating to possession of premises to which the provisions of Part 11 of the Act apply and in that suit claims and questions arising out of the Act or any of its provisions had to be dealt with
It was however suggested that the suit in the City Civil Court was not one between a landlord and a tenant because the defendants of this suit did not admit that the plaintiffs were the tenants of the premises in question
Section 28 applies to a suit where admittedly the relationship of landlord and tenant within the meaning of the Act subsists between the parties
The plaint in the suit in the City Civil Court admits that the defendants were landlords of the premises at various stages and the plaintiffs were their tenants
The suit therefore was 376 essentially a suit between a landlord and a tenant
The suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs
Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the court trying the suit
On a proper interpretation of the provisions of section 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between the parties
The courts which have jurisdiction to entertain and try such a suit are the courts specified in section 28 and no other
No doubt section 29A expressly provides that nothing contained in section 28 or section 29 shall be deemed to bar a party to a suit proceeding or appeal mentioned therein in which a question of title to premises arises and is determined from suing in a competent court to establish his title to such premises
Even if it be assumed that a claim to a right to tenancy of premises is a question of title to the premises is that a title which section 29A permits a party to establish in a com petent court other than that specified in section 28  If it is possible to avoid a conflict between the provisions of section 28 and section 29A on a proper construction thereof then it is the duty of a court to so construe them that they are in harmony with each other
It is possible to conceive of cases where in a suit under section 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally
Any party to the suit aggrieved by such a determination would be free to sue in a competent court to establish his title to such premises by virtue of the provisions of section 29A
On the other band in a suit where a question of title entirely arises out of the Act or any of its provisions the jurisdiction to try such a suit was exclusively vested in the courts specified in section 28 and no other
That is to say a title which could not be established outside the Act but 377 which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a court specified in section 28 and a title de hors the Act may be determined in any other court of competent jurisdiction
The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions
It defined  landlord  and  tenant  to have a meaning wider in scope and concept than those words have under the ordinary law
Any one who was a landlord or a tenant as defined in the Act would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it
The Act specially provided that the courts specified in section 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other court from having such jurisdiction
It is difficult to accept the suggestion that the legislature intended after setting up special courts under section 28 to deal with such matters that the same should be reagitated and redetermined in another suit by a court not specified in section 28
By enacting section 29A the legislature clearly intended that no finality should be attached to the decision of a court trying a suit under section 28 on a question of title de hors the Act
The provisions of the Act on the other hand clearly indicate that all claims or questions arising out of the Act or any of its provisions even though they may be in the nature of a title to the premises were to be determined by the courts specified in section 28 and no other
Some reference was made to section 49 of the which provides that recovery of possession of any immovable property under Ch
VII of the Act shall be no bar to the institution of a suit in the High Court for trying the title thereto
The provisions of this section render no assistance in the matter of interpretation of sections 28 or 29A Chapter VII of the deals with the recovery of possession of 48 378 immovable property from a person including a tenant
The provisions of section 41 onwards prescribe a summary mode for recovery of possession which could even be stayed by the Small Cause Court if the provisions Of section 47 were complied with
Indeed under section 41 no claims or rights are determined
In such a situation it is clearly understandable that nothing contained in Ch
VII could be a bar to the institution of a suit in the High Court for trying the title to the immovable property
In a suit under section 28 the court has to determine all questions relating to recovery of rent or relating to possession and all claims or questions arising out of the Act or any of its provisions
Section 29 provides for an appeal against the decision of the court
Under Ch
VII of the there is no provision for an appeal against an order directing recovery of possession
In our opinion the High Court correctly decided that the suit filed by the plaintiffs who are the appellants in this appeal could not be determined by the City Civil Court
On behalf of the appellants a request was made that if the appeal should fail they may be given some time to vacate the premises
The High Court in dismissing the appeal had directed  Decree not to be executed for a fortnight 
In granting special leave this Court had granted an ex parte stay staying the execution of the decree in suit No 4834400 of 1948 of the Court of Small Causes Bombay until the 16th day of January 1956 and had directed that the stay application be posted for hearing on that date
On that lay the application for stay was allowed on two conditions being fulfilled and on the non compliance of which the stay order would stand vacated
On February 19 1957 another order was passed by this Court when its attention was drawn to the non compliance of the conditions stated in the order of January 16 1956 on the part of the appellants
The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in 379 the event of the appeal being dismissed or decided against them
Having regard to the undertaking given as also the fact that execution of the decree in suit No 4834400 of the Court of Small Causes Bombay has been delayed long enough
 we are unable to accede to the request made by the appellants
The appeal is accordingly dismissed with costs
Appeal dismissed


Summary:
Somasundram Viswanath Respondent No 1 herein was working as an officer in the Defence Accounts Service
Promotions to Level I  Level II of the Senior Administrative Grade of the said Service were governed by the Indian Defence Accounts Service Recruitment Rules l95X as amended from time to time promulgated by the President of India under the proviso to article 309 of the Constitution of India
Under the Rules recruitments by promotion to the senior administrative posts were to be made by Selection on merit on the recommendations of a duly constituted Departmental Promotion Committee
In accordance with the said Rules when the case of the Respondent came within the Zone of consideration for promotion to the cadre of controller of Defence Accounts the same was placed before the Departmental Promotion Committee and the said Committee in order to make appropriate recommendations convened its meeting on 781986
At the said meeting one of its members ie the Secretary to the Ministry of Defence could not be present even though he was duly notified about the date and time of the meeting
In his absence the remaining members met and made the recommendation
The 1st Respondent was graded good  and was not put in the Select panel
Aggrieved by the said decision Respondent filed a Petition before the Central Administrative Tribunal Jabalpur Bench challenging the validity of the recommendations made by the Department Promotion Committee and prayed for an order directing the appellant union of PG NO 146 PG NO 147 India not to promote his juniors to the higher grade
The principal contention raised by the Respondent before the Tribunal was that the Departmental Promotion Committee was not properly constituted as one of its members was absent with the result the proceedings of its meeting held on 781986 stood vitiated and recommendation made by it should not be acted upon
On the other hand the Deptt
contended that the proceedings of the Committee were protected by the administrative instructions issued by the Government of India with regard to the procedure to be followed by the DPC
In reply thereto the 1st Respondent pleaded that the administrative instructions issued by the Government of India could not override the rules made under the proviso to article 309 of the Constitution and the same has to be ignored
On consideration of the rival contentions the Central Administrative Tribunal came to the conclusion that the DPC had not been properly constituted at the meeting held on 781986 because of the absence of the Secretary to the Govt
of India Ministry of Defence and therefore the proceedings of the said Committee were not valid
The Tribunal accordingly set aside the recommendations made by the Committee and directed that a fresh DPC may be convened for reconsidering the agenda which was before the Departmental Committee on 7886
The Union of India being dissatisfied with the aforesaid order of the Tribunal appealed by special leave to this Court
Disposing of the appeal
the Court HELD It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil appropriate Legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under article 162 of the Constitution of India in the case of Civil Services under the State Governments
152B If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 the rules made under the proviso lo Article 309 prevail and if there is a conflict between the rules made under the proviso to Article 309 and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails
152C PG NO 148 The Office Memorandum dated 30121976 1s in the nature of complete code with regard to the topics dealt with by it
Unless there is anything in the Rules made under the proviso to Article 309 which is repugnant to the instructions contained in the Office Memorandum the Office Memorandum which is apparently issued under Article 73 or the Constitution is entitled to be treated as valid and binding on all concerned
153B C This Court does not agree with the decision of the Central Administrative Tribunal that in the instant case the proceedings of the Departmental Promotion Committee on 781986 have been vitiated solely on account of the reason that the Secretary Ministry of Defence one of its members was not present at the meeting of the Committee
The proceedings of the Departmental Promotion Committee at its meeting held
on 781986 are not invalid on this account
153E The decision of the Tribunal set aside and the case remitted to the Tribunal to dispose it of afresh
153G