Civil Appeal No 668N of 1971 From the Judgment and order dated 1411970 of the Bombay High Court in SCA No 789 of 1969
EC Agarwala Vijay Pandita and Atul Sharma for the Appellant
The Judgment of the Court was delivered by KANIA J
This is an appeal by Special Leave against the judgment of a learned Single Judge of the Bombay High Court
The facts necessary for the disposal of the Appeal can be shortly stated
The Respondent before us who was the petitioner before the Bombay High Court is the owner of three agricultural lands described in the judgment appealed against situated at Talkhed Taluk Malkapur District Buldana in the Vidarbha area of Maharashtra
Originally these fields belonged to one Hiralal who died in 1916
Hiralal started the construction of a dharamshala and a temple in 1912 in the said lands which construction was completed by the Respondent s mother during the minority of the Respondent
The Respondent s mother also constructed another dharamshala on a separate piece of land
The facts on record show that Umaji the father of the Appellant was appointed a Pujari by the then landlord to worship the idols in the aforesaid temple and to look after the management of the dharamshalas on behalf of the landlord
Under an agreement with the landlord the aforesaid three agricultural lands were cultivated by Umaji but instead of being paid in cash for the services rendered by him to the landlord in the form of looking after the management of the property and worshipping in the temple Umaji was allowed to cultivate the said fields and to take the crops
The Appellant is the son of Umaji and records show that after the death of Umaji he was given the same work as Umaji on the same terms and conditions
On 674 February 12 1963 the Appellant was served with a notice calling upon him to hand over the belongings of the temple as well as the immovable property to the Respondent
The Respondent then filed a suit for possession of the aforesaid lands in which the Appellant took a defence that he was a tenant of these lands and protected under the relevant legislation against eviction
The issue whether the Appellant was the tenant of the said lands was framed and referred to the Tahsildar for decision
The aforesaid issue was decided in the first instance by the Naib Tahsildar
Before him the Appellant contended that he was a deemed tenant as understood under Section 6 of the Bombay Tenancy and Agricultural Lands Vidarbha Region Act 1958 hereinafter referred to as the Vidarbha Tenancy Act 
It was contended by the Appellant that he was in lawful cultivation of the said agricultural lands and should be declared to be a tenant
The Respondent on the other hand reiterated his claim that the Appellant was not a tenant
The Naib Tahsildar passed an order on November 30 1965 holding that the Appellant was the tenant in respect of the said lands because he was lawfully cultivating the said lands which belonged to the Respondent
Against this order the Respondent herein filed an appeal
The Sub Divisional officer who decided the appeal set aside the order of Naib Tahsildar and remanded the matter for fresh inquiry on several issues including the issue as to how the Appellant herein came to be in possession of the said lands
The Appellant then filed a revision application before the Maharashtra Revenue Tribunal against this decision
The Revenue Tribunal set aside the order of the Sub Divisional officer and restored the order of the Naib Tahsildar
The Tribunal took notice
Of the admission of the Respondent that the Appellant herein was cultivating the said lands lawfully and on this basis came to the conclusion that the Appellant herein was the tenant of the said lands
This conclusion of the Tribunal was challenged by the Respondent herein before the Bombay High Court
The learned Judge who disposed of the Special Civil Application or writ petition noted that it was not in dispute that the Appellant was cultivating the said lands but he was doing so and appropriating the crop in lieu of payment of services which he rendered to the landlord as the Pujari worshipping the Gods in the said temple and looking after the management of the dharamshalas
Instead of being paid in cash for these services the Appellant was allowed to cultivate the fields and take the crops thereof
The learned Judge came to the conclusion that on these facts the lawful cultivation of the fields by 675 the Appellant was referable to a particular contract which alone must govern the relationship between the parties
That contract constituted or created a relationship of employer and employee
It was held that the Appellant herein was an employee of the Respondent in his capacity as a Pujari and person looking after the management of the dharamshalas
On these facts the learned Judge came to the conclusion that the Appellant herein was not entitled to claim the rights of a deemed tenant and held that the decision to the contrary arrived at by the Tribunal was erroneous and liable to be set aside
The learned Judge allowed the writ petition and quashed the order made by the Tribunal and the Revenue Authorities and held that the Appellant had failed to prove that he was a tenant of the said agricultural lands
It is this conclusion of the learned Judge which is challenged in this appeal
The contention of Mr Aggarwala learned counsel for the Appellant is that his client was admittedly in lawful possession of the lands in question and was cultivating the same at the relevant time
In view of this it must he held that he was a deemed tenant of the said lands under the provisions of Section 6 of the Vidarbha Tenancy Act and the Respondent was not entitled to evict him
It was submitted by him that the learned Judge of the High Court who disposed of the Special Leave Application was in error when he proceeded on the footing that the Appellant was not the tenant of the said lands as the right to cultivate the lands and appropriate the produce was given to him and his father earlier as the Pujari of the aforesaid temple and for looking after the management of the dharamshalas and the said lands
It was urged by him that even if the Appellant could be said to be a servant of the Respondent he was admittedly in lawful personal cultivation of the said lands and was not paid in cash or kind but by way of a crop share the crop share being equivalent to the entire crop
The Respondent has not chosen to appear before us
In order to examine the correctness of the aforesaid contentions of Mr Aggarwala we may at this stage take note of the relevant provisions of the Vidarbha Tenancy Act
The term tenant  is defined in sub section 32 of Section 2 of that Act as follows 32tenant  means a person who holds land on lease and includes a person who is deemed to be a tenant under Sections 6 7 or 8 676 b a person who is a protected lessee or occupancy tenant and the word landlord  shall be cons trued accordingly
Under sub section  17 of Section 2 land inter alia means land which is used or capable of being used for agricultural purposes and 13 includes the sites of farm building appurtenant to such land
Subsection 1 of Section 6 which is the material provision before us runs as follows 6
Persons deemed to be tenants
1 A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not a a member of the owner s family or b a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner s family or c a mortgage in possession
 Section 41 of the Vidarbha Tenancy Act deals with the right of a tenant to purchase land held by him as a tenant
Under the provisions of that Act a tenant other than an occupancy tenant shall be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally except whether the landlord belongs to any category specified in sub section 2
Section 46 of the Vidarbha Tenancy Act inter alia provides that with effect on and from the first day of April 1961 the ownership of all lands held by tenants which they are entitled to purchase from their landlords under the provisions of Chapter III of the Vidarbha Tenancy Act shall stand transferred to  i and vested in such tenants
As far as the case before us is concerned as we have already pointed out that the Appellant was admittedly cultivating the lands in question and was not a member of the landlord s family nor was he a hired labourer
The landlord did not belong to any of the classes specified in sub section 2 of Section 41
The aforesaid cultivation was 677 clearly lawful because the Respondent to whom the lands belonged had permitted him to do so
It is true that the record shows that this right to cultivate the land and appropriate the produce was given to the Appellant because of the services he was performing as a Pujari of the aforesaid temple of the Respondent and as he was looking after the dharamshalas
By reason of these facts it might be said that he was cultivating the said lands as a servant of the Respondent but he was not being paid any wages in cash or kind but by way of a crop share the share being the entire crop
In these circumstances he must be held to be a deemed tenant of the said lands under the provisions of Section 6 of the Vidarbha Tenancy Act
The fact of his cultivating the land as a servant of the Respondent would make no difference because he was being paid for his services by way of a crop share and hence was not covered by the provisions of clause b of sub section 1 of Section 6
The learned Judge of the High Court was in error in coming to the conclusion that merely because the Appellant was a servant of the Respondent he could not be held to be a tenant in respect of the said lands
The learned Judge altogether failed to notice that although the appellant was a servant he was not given wages payable either in cash or kind but by way of a crop share and hence not covered by the exception carved out by clause b of sub section 1 of Section 6
From the observations made by the learned Judge it appears that he proceeded on the wrong footing that in order to be a deemed tenant a person must show that his lawful cultivation owes its origin to some sort of tenancy
In fact the whole aim of Section 6 is to confer deemed tenancy upon persons who are not already tenants of the land in question
We may point out that this conclusion finds some support from the decision of this Court in Dahya Lal and others vs Rasul Mohammed Abdul Rahim  1963 3 SCR l at pp 6 7 decided by a Bench of five learned Judges of this Court
In that case the provision which came up for consideration was Section 4 of the Bombay Tenancy and Agricultural Land Act 1948 the material portion of which runs as follows 
A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not 
It was held that this Act encompassed with its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from the land owners but persons who are deemed to be the tenants
678 In the result the Appeal is allowed
The impugned judgment and order of the High Court are set aside and the order of Naib Tahsildar confirmed by Revenue Tribunal is restored
There will be no order as to the costs of the Appeal
SL Appeal allowed


Summary:
 The appellant a Signal Man in a Signal Regiment of the Armed Services while serving out a sentence of 28 days  rigorous imprisonment imposed on him by the Commanding officer of the Regiment respondent No 4 for violating norms for presenting representations to higher officers was alleged to have committed another offence by refusing to eat his food on March 29 1985 when ordered to do so
He was charged under section 412 of the for disobeying a lawful command given by his superior officer
A sentence of rigorous imprisonment for one year was imposed by a Summary Court Martial consisting of respondent No 4 and others
He was removed to the civil prison and he served out the sentence
The appellant s representation to the confirming authority under section 164 of the Act was rejected by the General officer Commanding on May 241985
The appellant s writ petition challenging proceedings of the Summary Court Martial was dismissed in limine by the High Court
513 In the appeal by special leave it was contended on behalf of the appellant that the proceedings of the Court Martial were vitiated i by a non affording of an opportunity to challenge the constitution of the Summary Court Martial under section 1301 ii by bias on the part of the respondent No 4 who participated in and dominated the proceedings iii by awarding a punishment so disproportionate to the offence as to amount in itself to conclusive evidence of bias and vindictiveness and iv by ignoring that as the appellant was then serving out an earlier sentence he could not be need to be in active service so as to be amenable to disciplinary jurisdiction and that the appellant s refusal while already serving a sentence to accept food did not amount to disobedience under section 41 of any lawful command of a Superior officer
Allowing the appeal  HELD 11 The Indian constitutes a special law in force conferring a special jurisdiction on
the Court Martial prescribing a special procedure for the trial of the offences under the Act
The Act and Rules constitute a self contained Code specifying offences and the procedure for detention custody and trial of the offenders by the Court Martial
518G H 519A 12 The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the Summary jurisdiction of the Court Martial and the severity of the consequences that visit the person subject to that jurisdiction
The procedural safeguards should be commensurate with the sweep of the powers
The wider the power the greater the need for the restraint in its exercise ad correspondingly more liberal the construction of the procedural safeguards envisaged by the Statute
519B C I 13 Non compliance with the mandate of section 130 is an infirmity which goes to the root of jurisdiction and without more vitiates the proceedings
519F Prithvi Pal Singh vs Union of India AIR 1982 SC 1413 relied on
Vitarelli vs Seaton  referred to
514 21 It is the essence of a judgment that it is made after due observance of the judicial process that the Court or Tribunal passing it observes at least the minimal requirements of natural justice is composed of impartial persons
acting fairly and without bias and in good faith
A judgment which is the result of bias or want of impartiality is a nullity and the trial coram non judice 
520D E Vassiliades vs Vassiliades AIR 1945 PC 38 referred to
22 As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party
The proper approach for the Judge is not to look at his own mind and ask himself however honestly Am I biased but to look at the mind of the party before him
520F Allinson vs General Council of Medical Education and Registration at 758 Metropolitan Properties Co FGC Ltd vs Lannon  d 599 Public Utilities Commission of the District of Columbia vs Pollack  at 466 and Regina vs Liverpool City Justices Ex parte Topping referred to
Having regard to the antecedent events the participation of respondent No 4 in the Courts Martial rendered the proceedings Coram non judice
522B 3
The mere circumstance that the appellant was at the relevant point of time serving a sentence of imprisonment and could not therefore be said to be in active service  does not detract from the fact that he was still a person subject to the Act as is clear from the second clause of section 412 which refers to offences committed when not in active service  the difference being in the lesser punishment contemplated
522C D 4
Every aspect of life of a soldier is regulated by discipline
Rejection of food might under circumstances amount to an indirect expression of remonstrance and resentment against the higher authority
To say that a mere refusal to eat food is an innocent neutral act might be an over simplification of the matter
Mere in action need not always necessarily be neutral
Serious acts of calumny could be done in silence
A disregard of a direction to accept food might assume the 515 complexion of disrespect to and even defiance of authority
But an unduly harsh and cruel reaction to the expression of the injured feelings may he counter productive and even by itself be subversive of discipline
522E F In the instant case appellant was perhaps expressing his anguish at what he considered an unjust and disproportionate punishment for airing his grievances before his superior officers
522G 5
Judicial review generally speaking is not directed against a decision but is directed against the decision making process
The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial
But the sentence has to suit the offence and the offender
It should not be vindictive or unduly harsh
It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias
The doctrine of proportionality as part of the concept of judicial review would ensure that even on an aspect which is otherwise within the exclusive province of the Court Martial if the decision of the Court even as to sentence is an outrageous defiance of logic then the sentence would not be immune from correction
Irrationality and perversity are recognised grounds of judicial review
All powers have legal limits
522G H 523A C Council of Civil Service Unions vs Minister for the Civil Service 1984 3 Weekly Law Reports 1174 HL and Bhagat Ram vs State of Himachal Pradesh AIR 1983 SC 454 referred to
In the instant case the punishment is so strikingly disproportionate as to call for and justify interference
523G The Court order set aside
The writ petition in the High Court allowed and the impugned proceedings of Summary Court Martial and the consequent order and sentence quashed
Appellant entitled to be reinstated with all monetary and service benefits
523H 524A Note on point 13 the finding is to be read with and subject to the subsequent order dated 10888