vil Appeal Nos 4180 and 4181 of 1989
From the Judgment and Order dated 202122 7 1988 and 18298 1988 of the Bombay High Court in Writ Petition Nos
3313 and 3417 of 1987
NN Keshwani and RN Keshwani for the Appellants
383 AB Rohatgi Mrs Gool Barucha MJ Paul Kailash Vasdev R Karanjawala MrsM Karanjawala NP and HS Anand for the Respondents
The Judgment of the Court was delivered by OJHA J
Special leave granted
These civil appeals have been preferred against a common judgment of the Bombay High Court dismissing writ petition No 33 1387 filed by Arjun Khiamal Makhijani who is the appellant in one of these appeals and writ petition No 341787 by Prithdayal Chetandas and others who are the appellants in the other civil appeal
Jamnadas C Tuliani who is respondent No 1 in both these appeals is the owner and tile landlord of the suit premises comprising two bed rooms flat together with a garage on the ground floor and a store room on Bhulabhai Desai Road in the city of Bombay
A suit was instituted by him for ejectment from the said premises against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which they had not paid in spite of a notice of demand having been served on them as contemplated by sub section 2 of Section 12 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Act and were consequently liable for eviction under sub section 3a of the Act as it then stood
Two other grounds were pleaded by the re spondent No 1 namely that the tenants had changed the user of the suit premises and that they had committed breach of terms and conditions of the tenancy
Subsequently Arjun Khiamal Makhijani aforesaid was impleaded as defendant No 6 in the suit on the assertion that the tenants had illegally sublet a portion of the suit premises namely the garage to him and were consequently liable to be evicted on this ground also
The suit was contested both by the tenants as well as by defendant No 6
The Trial Court recorded find ings in favour of the landlord in so far as the pleas of default in payment of rent and illegal sub tenancy are concerned
The other two pleas namely that the tenants had changed the user of the suit premises and had also committed breach of terms and conditions of the tenancy were decided against the landlord
On the basis of the findings on the pleas of default in payment of rent and illegal subletting the suit was decreed
Two appeals were preferred against the judgment of the Trial Court one by the tenants and the other by defendant No 6
Both these appeals were dismissed and the tenants and defendant No 6 aggrieved by the said decree filed two writ petitions in the High Court
384 Against the common judgment of the High Court dismissing these writ petitions the present civil appeals have been preferred
Before dealing with the respective submissions made by learned counsel for the parties it may be pointed out that even though the finding that the tenants were defaulters in payment of rent has been upheld by the High Court the other finding namely that the tenants had illegally sublet the garage of the suit premises to defendant No 6 has been set aside and it has been held accepting the case of the tenants that the defendant No 6 was a trespasser
The tenants had also claimed before the High Court the benefit of sub sec tion 3 of Section 12 of the Act as substituted by Amend ment Act 18 of 1987 which came into force on 1st October 1987
This plea too was repelled
The defendant No 6 before the High Court on the other hand took up the plea that in view of the finding in the suit that he was an illegal sub tenant of the garage since 1967 he was entitled to the benefit of sub section 2 of Section 15 of the Act as amended by the aforesaid Amendment Act 18 of 1987
The High Court repelled this plea on the finding that he was not a sub tenant but a trespasser and also on the ground that he was not in possession on 1st February 1973 the relevant date mentioned in the said sub section
The High Court also held that benefit of subsection 2 of Section 15 as amend ed could not be given to defendant No 6 in a writ peti tion the same being not a proceeding contemplated by Sec tion 25 of the Amendment Act
In order to appreciate the submissions made by learned counsel for the parties it will be useful to extract sub section 3 as it stood at the time when the suit was instituted and sub section 3 as it stands after its amendment
Subsection 3 as it stood when the suit was instituted reads as hereunder 3a Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section 2 the Court
shall pass a decree for eviction in any such suit for recovery of possession
b In any other case no decree for eviction shall be passed in any such suit if on the first day of hearing of the suit or on or before such other date as the Court max fix the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to 385 pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court
 After its amendment as aforesaid it reads 3 No decree for eviction shall be passed by the Court in any suit for recovery of posses sion on the ground of arrears of standard rent and permitted increases if on the first day of hearing of the suit or on or before such other date as the Court may fix the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine per cent per annum and thereafter continues to pay or tenders in Court regularly such standard rent and permit ted increases till the suit is finally decided and also pays costs of the suit as directed by the Court Provided that the relief provided under this sub section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant Sub section 2 of Section 15 on the other hand after its amendment as aforesaid runs thus 2 The prohibition against the sub letting of the whole of any part of the premises which have been let to any tenant and against the assignment or transfer in any other manner of the interest of the tenant therein contained in subsection 1 shall subject to the provisions of this subsection be deemed to have had to effect before the 1st day of February 1973 in any area in which this Act was in operation before such commencement and accordingly notwithstanding anything con tained in any contract or in the judgment decree or order of a Court any such sublease assignment or transfer of any such purported sublease assignment or transfer in favour of any person who has entered into possession despite the prohibition in subsection 1 as purported sub lessee assignee or transferee and has continued in a possession on the date aforesaid shall be deemed to be valid and effectual for all purposes 386 and any tenant who has sub let any premises or part thereof assigned or transferred any interest therein shall not be liable to eviction under clause e of sub section 1 of Section 13
The provisions aforesaid of this sub section shall not affect in any manner the operation of sub section 1 after the date aforesaid Since considerable emphasis has been placed on Section 25 of the Amendment Act 18 of 1987 the same may also be usefully quoted
It reads 25
Nothing contained in the principal Act as amended by this Act shall be deemed to autho rise the re opening of any suit or proceeding for the eviction of any person from any prem ises to which the principal Act applies as if such proceeding had been finally disposed of before the commencement of this Act
Explanation For the purposes of this section suit or proceeding as the case may be shall not be deemed to have been finally disposed of if in relation to that suit or proceeding any appeal or proceeding is pending or if the period of limitation for preferring an appeal or proceeding as the case may be had not expired before the com mencement of this Act
 It has been urged by the learned counsel for the tenants that 14th November 1967 was the first day of hearing of the suit and since in pursuance of an order passed by the Trial Court on that day the tenants had deposited the entire arrears of rent on 9th January 1968 within the time granted by the Court and continued to deposit the monthly rent thereafter they could not be treated as defaulters in pay ment of rent even if the amendment made in sub section 3 of Section 12 by the Amendment Act 18 of 1987 was ignored
We however find it difficult to agree with this submis sion
It is not denied that the arrears of rent which were for a period of more than six months and in respect of which a notice of demand had been served on the tenants under sub section 2 of Section 12 of the Act had not been paid by the tenants to the landlord within one month of the service of the notice
It is also not denied that during the said period of one month no dispute regarding the amount of standard rent or permitted 387 increases was raised by the tenants
On a plain reading of clause a of sub section 3 of Section 12 of the Act as it stood at the relevant time the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed
Clause b of sub section 3 on the face of it was not attracted inasmuch
as the said clause applied only to a case not covered by clause a
This is amply borne out by the use of the opening words In any other case of clause b
In Harbanslal Jagmohandas and Anr
vs Prabhudas Shiv lal 1977 1 SCC page 576 these clauses a and b of sub section 3 of Section 12 of the Act came up for consid eration and it was held that the tenant can claim protection from the operation of the Section 123a of the Act only if he makes an application raising a dispute as to standard rent within one month of the service of the notice terminat ing the tenancy
In the instant case this had not admittedly been done by the tenants
The consequence of non payment of arrears of rent claimed in the notice of demand was there fore inevitable
In Jaywant section Kulkarni and Others vs Minochar Dosabhai Shroff and Others 1988 4 SCCp108 clauses a and b of sub section 3 of Section 12 again came up for consideration
It was held Sub section 3a of Section 12 categorical ly provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in subsection 2 the court shall pass a decree for evic tion in any such suit for recovery of posses sion
In the instant case as has been found by the court the rent is payable month by month
There is no dispute regarding the amount of standard rent or permitted in creases
Such rent or increases are in arrears for a period of six months or more
The tenant had neglected to make payment until the expi ration of the period of one month after notice referred to in subsection 2
The Court was bound to pass a decree for eviction in any such suit for recovery of possession Faced with this difficulty learned counsel for the tenants urged that since the Act was a beneficial legisla tion the tenants having deposited the arrears of rent within the time granted by the Trial Court and having continued to deposit future rent thereafter the decree for 388 their eviction deserves to be reversed by this Court
In so far as this submission is concerned it may be pointed out that in Ganpat Ram Sharma and others vs Gayatri Devi 1987 3 SCC page 576 while dealing with almost a similar Rent Control Legislation it was held But quite apart from the suit being barred by lapse of time this is a beneficial legisla tion beneficial to both the landlord and the tenant
It protects the tenant against unrea sonable eviction and exorbitant rent
It also ensures certain limited rights to the landlord to recover possession on stated contingencies
In Ganpat Ladha vs Sashikant Vishnu Shinde 1978 2 SCC page 73 while dealing with the scope of clauses a and b of sub section 3 of Section 12 of the Act it was held It is clear to us that the Act interferes with the landlord s right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlord s power to evict them in these days of scarcity of accommodation by assert ing his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants
The object was not to deprive the landlord altogether of his rights in property which have also to be respected
Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf
Thus Section 123a of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us Bhagwati J in Ratilal Balabhai Nazar vs Ranchhodbhai Shan kerbhai Patel AIR 1968 Guj 172
If there is statutory default or neglect on the part of the tenant whatever may be its cause the landlord acquires a right under Section 123a to get a decree for eviction
But where the conditions of Section 123a are not satisfied there is a further opportunity given to the tenant to protect himself against eviction
He can comply with the conditions set out in section 123b and defeat the landlord s claim for eviction
If however he does not fulfil those conditions he cannot claim the protection of Section 123b and in that event there being no other protection available to him a decree for eviction would have to go against him
It is difficult to 389 see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 123b even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation Emphasis supplied
When the Act contains provisions some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord the assertion that even with regard to such provisions of the Act which fall under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants
The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose
It is difficult to countenance the sentimental approach made by learned counsel for the tenants for the simple reason that as pointed out in Latham vs
R Johnson and Nephew Ltd 408 sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles
Reliance was placed by learned counsel for the tenants on Vatan Mal vs Kailash Nath 1989 3 SCC page 79
In that case provisions of Amending Ordinance No 26 of 1975 whereby Section 13a was inserted in the Rajasthan Premises Con trol of Rent and Eviction Act 1950 came up for considera tion
After pointing Out that the object of inserting Sec tion 13a was to confer benefit on all tenants against whom suits for eviction on ground of default in payment of rent were pending and to achieve that object the said Section had been given overriding effect it was held that the interpretation of Section 13a must conform to the legisla tive intent and the courts should not take narrow restricted view which will defeat the purpose of the Act
In our opin ion in view of the mandatory provisions contained in Sec tion 123a of the Act the decision in the case of Vatan Mal supra is not at all attracted to the facts of the instant case
Clauses a and b of sub section 3 of Section 12 of Act are calculated to meet entirely different situations and the object of clause b was not to defeat the mandatory requirement of clause a scope of which has already been discussed above
For the same reason the decision of this Court in BP Khemka Pvt Ltd vs Birendra Kumar Bhowmick  Anr 1987 2 SCR page 559 on which too reliance has been placed by the learned counsel for the tenants is of no assistance to them
390 It was then urged by the learned counsel for the tenants that notwithstanding the provisions contained in Section 123a of the Act this Court can still grant relief to the tenants in view of the power conferred on it under Article 142 of the Constitution for doing complete justice in the case
Reliance in support of this submission has been placed on Smt
Kamala Devi Budhia and others vs Hem Prabha Ganguli and Others 1989 3 SCC page 145
This submission ignores the basic concept that Article 142 does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provision
In the case of Smt
Kamala Devi Budhia supra the question arose as to wheth er an application under Section 12 of the Bihar Buildings Lease Rent and Eviction Control Act was competent or in the circumstances of the case only a suit under Section 11 thereof could be filed
It was pointed out that it is the same Court before which both a suit under Section 11 and an application under Section 12 are to be filed and it was in this background that it was held If it is assumed that an application under Section 12 of the Act is not maintainable in the facts and circumstances of the present case in our opinion the proceeding has to be treated as a suit and the judgment of the learned Munsif as a decree therein
A further question may arise as to the effect of the Judicial Commissioner Ranchi declining to pass a formal decree of eviction and directing the appellants to make an application under Section 123 of the Act for that purpose
Can this Court restore the decree of the trial court in absence of an appeal by the appel lants before the High Court We thinkthat we can and we should the question does not affect the substantive right of the parties as the controversy was concluded by the first appellate court in favour of the appellants
What was left was only procedural in nature and inconsistent with our decision to treat the proceeding as a suit
The occasion for filing an application under Section 123 can arise only where the matter is covered by Section 12 and as we have made an assumption in favour of the respondents that Section 12 has no application to the present case there is no point in asking the appellants to file such an application
As mentioned in Article 142 of the Constitution of India this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it 391 and the present case is a most appropriate one for exercise of such power Emphasis supplied The said decision apparently cannot be applied to the facts of the instant case
Learned counsel for the tenants then urged relying on Praduman Kumar vs Virendra Goyal Dead by LRs 1969 3 SCR page 950 that at all events the tenants were entitled to be relieved against forfeiture for non payment of rent under Section 114 of the Transfer of Property Act benefit of which could be given if deposit of rent was made at any stage of the hearing of the suit
In our opinion there is no substance in this submission either inasmuch as Section 114 of the Transfer of Property Act cannot be applied to a case where the suit for eviction of a tenant has been insti tuted not on the basis of forfeiture of lease under the Transfer of Property Act but on the basis of statutory provision dealing specifically with the rights and obliga tions of the landlords and tenants such as Section 12 of the Act
In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections 2 and 3a of Section 12 of the Act bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction
Such removal of bar is not in any sense forfeiture of any rights under lease which the tenant held
Section 114 of the Transfer of Property Act which provides relief against forfeiture for non payment of rent applies to a case where a lease of immovable property has determined by forfeiture for non payment of rent
Section 111 of the Transfer of Property Act deals with various contingencies whereunder a lease of an immovable property determines
Clause g contains oneof such contingencies being by forfeiture inter alia in case the lessee breaks an express condition which provides that on breach thereof the lessor may re enter
In a case where forfeiture of lease is claimed for non payment of rent it would therefore have to be established that one of the express conditions of the lease provided that on breach of that condition namely on nonpayment of rent the lessor was entitled to re enter
It is only in those cases where such an express condition is contained in the lease and the lessee breaks the said condition and the lessor on his part gives notice in writing to the lessee of his intention to determine the lease that a lease of immovable property determines by forfeiture for non payment of rent
In the instant case the suit was not based on any such forfeiture of lease under the Transfer of Property Act but was filed for the 392 enforcement of the statutory right conferred on the landlord by subsections 2 and 3a of Section 12 of the Act
Lastly it was urged by the learned counsel for the tenants that after clauses a and b of sub section 3 of Section 12 were substituted by the consolidated sub section 3 of the Amendment Act 18 of 1987 the tenants should have been given the benefit of the deposit of arrears of rent on the first day of hearing in pursuance of the order of the Trial Court dated 14th November 1967 and of the deposits of future rent thereafter and at all events they were enti tled to make the necessary deposit after the commencement of the Amendment Act 18 of 1987
In our opinion the tenants are not entitled even to the benefit of the amended sub section 3 of Section 12 of the Act inasmuch as on a plain reading of the sub section it is not possible to give it a retrospective operation
In this connection it will be useful to notice that while amending sub section 2 of Section 15 of the Act it was provided by the Amendment Act 18 of 1987 that the provisions which were substituted in the said sub section shall be deemed to have been substituted on the 1st day of February 1973
No such provision was made with regard to the substitution of sub section 3 of Sec tion 12 of the Act
Sub section 3 uses the words on the first day of the hearing of the suit or on or before such other day as the Court may fix
If the deposit of arrears of rent on 9th January 1968 is pleaded as compliance of the deposit contemplated by the amended sub section 3 and even if for the sake of argument this plea is accepted the said deposit would still not confer on the tenants the benefit of sub section 3 for the obvious reason that the said sub section contemplates not only the deposit of standard rent and permitted increases then due but also of simple interest on the amount of arrears of such rent and permitted in creases at the rate of nine per cent per annum
Such amount of interest was admittedly not deposited by the tenants either on 9th January 1968 or on any date thereafter
We owe turn to the submission of the learned counsel for the ten ants that the tenants were entitled to make the deposit contemplated by sub section 3 on the first day of the hearing of the suit or on such other day as the Court may fix after sub section 3 being substituted by the Amend ment Act 18 of 1987
This argument ignores the difference between the terms at the hearing of the suit as used in Section 114 of the Transfer of Property Act and the term on the first day of the hearing of the suit
In the case of former it may be possible to argue that the deposit can be made at any hearing of the suit either in the Trial Court or the Appellate Court an appeal being a continuation of the suit but the said argument is not available in the latter case where the words used are on the first day 393 of the hearing of the suit
In the very nature of things it is not possible to contemplate numerous dates all of which may fulfil the requirement of being the first day of the hearing of the suit
In this connection it would be useful to notice that the words on the first day of the hearing of the suit or on or before such other day as the Court may fix occurring in sub section 3 of Section 12 of the Act after its amendment by the Amendment Act 18 of 1987 occurred in clause b of the unamended sub section 3 also
In SD Chagan Lal vs Dalichand Virchand Shroff and Others 1968 3 SCR page 346 while dealing with the clauses a and b of the unamended sub section 3 of the Section 12 of the Act it was held that the date fixed for settlement of issues was September 3 1956 which can be taken to be the date of the first hearing of the suit for the purpose of the Act
The same meaning obviously has to be given to the aforesaid words when they have been repeated in the amended sub section 3 of Section 12 of the Act
The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal
The words on or before such other dates as the Court may fix occurring after the words on the first day of the hearing of the suit in subsection 3 of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit
A deposit made on or before such extended date would also meet the requirement of the subsection
Even Section 25 of the Amendment Act 18 of 1987 would be of no assistance in so far as the interpreta tion of Section 123 of the Act is concerned
The said Section provides for certain exceptions in which a suit or proceeding for the eviction of any person may be reopened
A provision containing exceptions cannot be interpreted so as to enlarge the scope of sub section 3 of Section 12 of the Act
The said Section 25 may be applicable to sub section 2 of Section 15 as amended by the Amendment Act 18 of 1987 the amendments whereunder were given retrospective effect as indicated earlier or also to a similar provision
Clause a of the unamended sub section 3 of the Section 12 of the Act conferred a substantive right on the landlord to have a decree for eviction in his favour as held by this Court in the case of Ganpat Ladha supra and such a right could be taken away only by a provision which either ex pressly took away that fight or could be interpreted to have taken away that right by necessary inendment We do not find any such indication either in the amended sub section 3 of Section 12 of the Act or even in Section 25 of the Amendment Act 18 of 1987
By taking recourse to the process of reopen ing of proceedings one cannot put the hands of the clock back and create an artificial 394 date as the first day of the heating of the suit
No other point has been urged by learned counsel for the tenants and consequently we find no merit in the appeal filed on behalf of the tenants
We now turn to the appeal filed by defendant No 6 to whom the garage was found by the courts below to have been illegally sub let but who has been found to be a trespasser by the High Court
As seen above the High Court in its judgment under appeal repelled the claim of defendant No 6 that he was entitled to the benefit of the amended sub section 2 of Section 15 of the Act on three grounds i that he was a trespasser and not a person to whom the garage had been illegally sub let ii that he was not in posses sion on the relevant date namely 1st February 1973 and iii that the said benefit could be extended only in a suit or proceeding under the Act and not in a writ petition which did not constitute a continuation of a suit or proceeding under the Act but was an independent proceeding under the Constitution
It has been urged by learned counsel for defendant No 6 that since the finding of the Courts below that the garage had been illegally sub let to the defendant No 6 was in consonance with the pleading of the landlord in this behalf the said finding could not be reversed in a writ petition first because it was not within the competence of the High Court to reverse that finding either under Article 227 or even under Article 226 of the Constitution and secondly that the landlord was bound by his admission in the plead ing
In so far as the submission that the landlord was bound by his admission in the pleading is concerned it is true that such an admission being a judicial admission under Section 58 of the Evidence Act stands on a higher footing than evidentiary admissions as held by this Court in Nagin das Ramdas vs Dalpatram Ichharam 1974 1 SCC page 242 but on the facts of the instant case to which reference shall be shortly made it is the proviso to Section 58 which comes into play and the rights of the parties had to be determined de hors the said admission
The said proviso contemplates that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions
The scope of this provision did not fall for consideration in the case of Nagain Das supra
Reverting to the facts of the instant case it would be seen that there was a triangu lar dispute in this case
After getting the plaint amended the landlord no doubt set up the case that the tenants had illegally sub let the garage to the defendant No 6
The case of the tenants on the other hand was that defendant No 6 was a trespasser and they had never sub let the garage to him
In so far as the defendant No 6 is 395 concerned the plea set up by him was that he came into possession of the garage in pursuance of an agreement en tered into between him and Daulat son of one of the ten ants for a period of six months
As pointed out by the High Court in its judgment under appeal no positive plea of sub tenancy whether lawful or unlawful was raised by defendant No 6 in the Trial Court
It is in this background that the controversy on the question as to whether the garage had been illegally sub let by the tenants to the defendant No 6 had to be resolved
First since the defendant No 6 himself had disputed the contention of the landlord that the garage had been illegally sub let to him by the tenants and had set up the agreement with Daulat who apparently had no interest whatsoever in the garage apart from being the son of one of the tenants a finding that the garage had been sub let to the defendant No 6 illegally could obviously not be given simply on the basis of the case set up by the landlord in this behalf
Even if defendant No 6 was permitted to take a somersault and set up a plea contrary to his pleadings admitting the case of the landlord any finding given on the basis of such admission would not be binding on the tenants who were contesting the plea of the landlord and had set up a case that defendant No 6 was a trespasser and that the garage had never been sub let by them to him
Such a finding as aforesaid vis a vis tenants would be a finding based on the admission of the landlord in his own favour
To resolve the controversy as between the landlord and the tenants in this behalf therefore an independent finding on merits based on evidence and not on the basis of the plea raised by the landlord had to be given
These are the peculiar facts of this case on account of which the proviso to Section 58 of the Evidence Act was clearly attracted and the parties had to be required to prove their respective cases by adduc ing evidence de hors the admission of the landlord in his plaint
In so far as the submission made by learned counsel for defendant No 6 that a finding of fact could not be inter fered with in a writ petition by the High Court is con cerned by and large no exception can be taken thereto
The rule in this behalf however is not inflexible but has exceptions recognised by judicial decisions which being well known are not necessary to be recapitulated
For in stance this rule will not apply if a finding is arbitrary or based on no evidence or is such that no one properly in structed in law could have given it the same being in the teeth of some statutory provision or in ignorance of binding precedents
In our opinion the instant case is one which falls within the exception to the said rule
It is true that the landlord by getting his plaint subsequently amended set up the plea that the garage had been illegally sub let by the tenants to defendant No 6
It is 396 however equally true that the said plea was categorically denied by the tenants and it was specifically asserted by them that they had never sub let the garage to defendant No 6 and that the defendant No 6 was a trespasser
As regards the defendant No 6 himself he pleaded to have come into possession of the garage for a period of six months on the basis of an agreement entered into between him and Daulat the son of one of the tenants
In the life time of his father Daulat could not have the status of a joint tenant and in the eye of law he had no interest in the garage apart from using it in his capacity as the son of one of the tenants
He was not in a position either to sub let the garage or even to grant a licence thereof
As seen above the High Court has emphasised in its judgment under appeal that no positive plea of sub tenancy whether lawful or unlawful was raised by defendant No 6 in the Trial Court
That apart defendant No 6 in unequivocal terms admitted in his deposition also before the Trial Court that he came in possession by virtue of the agreement with Daulat the son of defendant No 1
He further admitted that he did not know that the defendant Nos 1 to 5 were the tenants of the flat store room and garage and that he did not make enquiry as to who were the tenants
This being the situation there was no scope for even drawing an inference that taking of posses sion of the garage for six months by defendant No 6 in pursuance of the agreement entered into between him and Daulat may have been with the tacit approval of the tenants namely defendant Nos 1 to 5
Nothing has been brought to our notice to indicate that the case of the landlord was that the tenants had sub let the garage to defendant No 6 in his presence and he had personal knowledge about the transaction of sub letting
The High Court has also pointed out in paragraph 25 of its judgment under appeal that in support of their plea that defendant No 6 was a trespasser defendant Nos 1 to 5 had led evidence and that the lower court had no justification to ignore that evidence
It was apparently therefore a case where no one properly in structed in law could have come to the conclusion that the tenants had illegally sub let the garage to defendant No 6
In this state of affairs it cannot obviously be said that the High Court committed any error in holding that defendant No 6 was a trespasser
This being so defendant No 6 indisputably could not derive any benefit out of the amended subsection 2 of Section 15 of the Act
The finding of the High Court that defendant No 6 was not in possession on the relevant date namely 1st February 1973 was based on the circumstance that on that date admit tedly the garage was in possession of a receiver appointed by the Court and not in possession of defendant No 6
It has been urged by learned counsel for defendant 397 No 6 that possession of the receiver would enure to the benefit of defendant No 6
This proposition has been con tested by the learned counsel for the landlord
We however do not find it necessary to go into this question in view of our conclusion that the finding of the High Court that the garage had not illegally been sub let to defendant No 6 and that the said defendant was a trespasser is unassailable
Even if the submission of learned counsel for defendant No 6 in this behalf is accepted the nature of possession of defendant No 6 on 1st February 1973 would be in no way better than of a trespasser
For the same reason we find it unnecessary to go into the correctness or otherwise of the view of the High Court that a writ petition being an inde pendent proceeding was not a proceeding in relation to a suit or proceeding under the Act
It was lastly urged by learned counsel for defendant No 6 that after the judgment had been delivered by the High Court on 22 July 1988 dismissing the two writ petitions it was not open to the High Court to reopen and hear the writ petitions on 18 August 1988 and 29 August 1988
So far as this submission is concerned it may be pointed out that the very first sentence of the order of the High Court dated 18 August 1988 indicates that the judgment had not been deliv ered earlier but had only been dictated and the transcript was ready
Listing the matter again for further hearing became necessary inasmuch as while dictating the judgment a factual position was noticed that defendant No 4 had died and there was nothing to show that his heirs had been brought on record
Learned counsel for the parties appeared on that date and an affidavit was taken on record
They prayed for time to make submissions on the said question
The matter was ordered to stand over till 29 August 1988 and in the meantime an affidavit in reply to the affidavit taken on record as aforesaid was permitted to be filed
Time given to defendant No 1 to file affidavit in support of the undertaking given by him earlier was also extended to 29 August 1988
This submission also made by learned counsel for defendant No 6 has therefore no substance
In view of the foregoing discussion there is no merit even in the appeal filed by defendant No6
In the result both the appeals fail and are dismissed
In the circumstances of the case however there shall be no order as to costs
RNJ Appeals dismissed


Summary:
The appellant is a commission agent engaged in the business of sale and purchase of grains rice oil seeds etc
in Chirgaon District Jhansi
By a notification issued under section 381 of the United Provinces Town Areas Act 1914 the provisions of Section 2982Fd of the UP Munici palities Act 1916 were extended to the Town Area of Chirg aon as a result of which the Panchayat of Chirgaon was empowered to make bye laws for the establishment regulation and inspection of market and 1or the proper and cleanly conduct of business therein
Later by Section 4 of the UP Provinces Town Area Amendment Act the word Panchayat wherever it occurred in the Principal  Act was substituted by the word Committee 
In pursuance of the powers con ferred on him the District Magistrate Jhansi framed bye laws dated 18111934 for the regulation of the marketin Chirgaon which inter alia provided that weighing dues shall be charged at different rates on various articles that came to the Town Area for sale at rates specified therein
Since the appellant was a dealer in some of these commodities he was served with a notice calling upon him to pay Rs189226 as weighing dues for the period from 151962 to 3061962
The appellant challenged the notice by means of a writ petition in the Allahabad High Court
A learned single Judge of the High Court dismissed the writ petition taking the view that the demand made by the respondent was purely a measure of taxation
Special Appeal against the said order was also dismissed by the High Court
Hence this appeal by special leave
The main contentions of the appellant as urged before the High Court as have been repeated before this Court are i that the bye laws were invalid ii that the Town Area Committee had no power to impose such tax as the Act did not empower the TAC to levy and collect weighing dues iii that the weighing dues were discriminatory because of the exemptions iv that the weighing dues were not a tax but a fee which could not be charged without quid pro quo and v that there was 14 double taxation
It was also urged that the imposition of weighing dues is tantamount to illegal extraction without the authority of law
The respondent on the other hand supported the judgment of the High Court Dismissing the appeal this Court HELD Under the Indian Constitution the State Govern ment s power to levy a tax is not identical with that of its power to levy a fee
While the powers to levy taxes is conferred on the State Legislatures by the various entries in List 11 in it there is Entry 66 relating to fees empow ring the State Government to levy fees in respect of any of the matters in this List but not including fees taken in any Court 
The result is that each State Legislature has the power to levy fees which is co extensive with its powers to legislate with respect to substantive matters and it may levy a fee with reference to the services that would be rendered by the State under such law
The State may also delegate such a power to local authority
21C D A fee is a payment levied by an authority in respect of services performed by it for the benefit of the payer while a tax is payable for the common benefits conferred by the authority on all tax payers
21F While there is no quid pro quo between a tax payer and the authority in case of a tax there is a necessary co relation between fee collected and the service intended to be rendered
Of course the quid pro quo need not be under stood in mathematical equivalence but only in a fair corre spondence between the two a broad co relationship is all that is necessary
21G Courts cannot review the wisdom or advisability or expediency of a tax as the court has no concern with the policy of legislation so long they are not inconsistent with the provisions of the Constitution
It is only where there is abuse of its powers and transgression of the legis lative function in leving a tax it may be corrected by the judiciary and not otherwise
24B Taxes may be and often are oppressive unjust and even unnecessary but this can constitute no reason for judicial interference
When taxes are levied on certain articles or services and not on others it cannot be said to be discrimi natory
24C Avinder Singh vs State of Punjab   referred to