Civil Appeal No 10234 of 1983
From the Judgment and Order dated 31199 of the Alla habad High Court in Civil Revision No 3714 of 1978
KB Rohtagi for the Appellant
RK Garg and DK Garg for the Respondent
The Judgment of the Court was delivered by AHMADI J
The short question which arises for our consideration in this appeal by special leave is whether a tenant of a premises constructed in 1967 is entitled to the protection of Section 39 of the UP Urban Buildings Regu lation of Letting Rent and Eviction Act 1972 Act No 13 of 1972 as amended by Act No 17 of 1985 hereinafter called the Act  in an eviction suit instituted before the commencement of the Act
The Act came into force wef
15th July 1972 by virtue of the notification issued by the State Government in exercise of power conferred by Sub Section 4 of Section 1 of the Act vide Notification No 3409XXIX 59 72 dated 27th June 1972 published in the UP Government Gazette Extra dated 1st July 1972
The Act was enacted for inter alia regulation of letting and eviction of tenants from certain classes of buildings situate in urban areas specified in Sub Section 3 of Section 1
Section 2 indicates the buildings to which the Act shall not apply
We are concerned with Sub Section 2 of Section 2 the rele vant part whereof reads as under Except as provided in sub section 5 of section 12 sub section 1 A of Section 21 sub section 2 of Section 24 Sections 24 A 24 B 24 C or sub section 3 of section 29 nothing in this Act shall apply to building during a period of ten years from the date on which its construction is completed
Since it is not disputed before us that the construction of the suit property was completed in 1967 we need not set out the provisos and the explanations to the sub section
Section 3 defines the various expressions used in the Act
Under 189 clause a tenant  in relation to a building means a person by whom its rent is payable and building  according to clause i means a residential or non residential roofed structure including any land garages and out houses appur tenant thereto
Any person to whom rent is or if the build ing were let would be payable including his agent or attorney or such person is a landlord  within the meaning of clause j of that section
It would thus seem that but for the exemption granted by Section 22 the provisions of the Act would have applied to the letting of the suit prem ises
The scheme of Section 2 is that buildings referred to in clauses a to f are exempt from the operation of the Act for all times subject of course to legislative changes whereas the exemption granted by Section 22 is for a period of ten years from the date of completion of construc tion
Chapter III regulates to letting
Section 11 provides that no person shall let any building except in pursuance of an allotment order issued by the District Magistrate under Section 16
Chapter IV regulates eviction
Section 20 inter alia prohibits the institution of a suit for eviction of a tenant from any building except on the grounds catalogued in clauses a to g of sub section 2 thereof
Section 21 provides for the eviction of a tenant if the building is bonafide required by the landlord for his own use or the use of any of his family member
The scheme of Chapters III  IV clearly shows that both the letting of and eviction from the buildings to which the Act applies are regulated by the provisions of the Act
Section 39 of the Act with which we are mainly concerned finds its place in Chapter VII entitled Miscellaneous and Transitional Provisions
That section reads as under Pending suits for eviction relating to building brought under regulation for the first time In any suit for evic tion of a tenant from any building to which the old Act did not apply pending on the date of commencement of this Act where the tenant within one month from such date of com mencement or from the date of his knowledge of the pendency of the suit whichever be later deposits in the court before which the suit is pending the entire amount of rent and damages for use and occupation such damages for use and occupation being calculated at the same rate as rent to gether with interest thereon at the rate of nine per cent per annum and the landlord s full cost of the suit no decree for eviction shall be passed except on any of the 190 grounds mentioned in the proviso to sub section 1 or in clauses b to g of sub section 2 of Section 20 and parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary
 This Section carried an explanation which came to be omitted by Section 8iv and be deemed always to have been omitted of the Civil Laws Amendment Act 1972
Section 40 lays down that where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act it shall be disposed of in accordance with the provi sions of Section 39 which shall mutatis mutandis apply
The plain reading of Section 39 makes it clear that the said section obliges the court to refuse to pass a decree for eviction except on any of the grounds mentioned in the proviso to sub section 1 or in clauses b to g of sub section 2 of Section 20 if the following four require ments are satisfied i the building is one to which the old Act the UP Temporary Control of Rent and Eviction Act 1947 UP Act No III of 1947 did not apply ii the eviction suit must be pending on the date of commencement of the Act ie 15th July 1972 iii the tenant deposits in court the entire amount of rentdamages for the use and occupation of the building together with interest at 9 per annum and the landlord s full cost of the suit and iv such deposit is made within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the eviction suit whichever is later
The benefit of Section 39 is extended mutatis mutandis to an appeal or revision arising out of an eviction suit to which the old Act did not apply provided the said appeal or revi sion was pending on the date of commencement of the Act
On a plain reading of Section 39 it becomes clear that in a suit for eviction to which the said provision applies the Court trying the suit is 191 precluded from passing a decree for eviction if the tenant deposits in court the entire amount of rent and damages together with interest at 9 per annum and the landlord s full cost of the suit within the time allowed but this embargo does not apply if eviction is sought on the ground or grounds mentioned in the proviso to Sub section 1 or in clauses b to g of Sub section 2 of Section 20
The ground mentioned in the proviso to sub section 1 of Sec tion 20 is determination of tenancy by efflux of time where the duration of tenancy is fixed under a compromise or adjustment arrived at with reference to a suit appeal revision or execution proceeding which is recorded in Court or is otherwise reduced to writing and signed by the tenant
Sub section 2 of Section 20 enumerates the grounds in clauses a to g on which an eviction suit can be rounded against a tenant
Clause a permits the institution of a suit for eviction if the tenant is in arrears of rent for not less than four months and has failed to pay the same within one month from the date of service of a notice of demand upon him
The grounds in clauses b to g are other than arrears of rent
From the fact that a suit rounded on anyone or more of the grounds set out in the proviso to sub section 1 and clauses b to g of sub section 2 of Section 20 is exempt from the operation of Section 39 it would seem that the legislature desired to grant protection from eviction where the same is sought on the sole ground of arrears of rent
That is why in the exemption clause con tained in Section 39 clause a to sub section 2 of Section 20 which permits eviction on the ground of arrears of rent is deliberately and intentionally excluded and an embargo is created against the passing of an eviction decree if the tenant deposits in court within the time allowed the entire arrears of rent together with interest and costs
If the suit is on anyone or more of the exempted grounds the landlord is permitted to proceed with the same if necessary by effecting an amendment in the pleading and by adducing additional evidence
Such a suit may be continued and if the ground or grounds pleaded isare proved the court is enti tled to grant eviction
It therefore seems clear to us that the legislature intended to protect eviction of a tenant on the ground of arrears of rent if the tenant com plied with the conditions of Section 39
In the present proceedings it is not disputed that the construction of the demised premises was completed in 1967 and the letting had taken place in the same year
It is also not disputed that immediately on the completion of ten years the tenant deposited on 2nd September 1977 an amount of Rs4005 being the arrears of rent inclusive of interest and cost
It is not disputed that this payment was made within one month after the expiry of the period of ten years stipu lated in 192 Section 22 of the Act to take advantage of Section 39 of the Act
The eviction suit was admittedly filed on 27th May 1972 ie before the commencement of the Act ie 15th July 1972
There is also no dispute that the provisions of the old Act did not apply to the suit
On these undisputed facts the trial court gave the benefit of Section 39 and refused to order ejectment of the tenant
The landlord filed a revision application which was rejected by the Second Addi tional District Judge Bulandshahr on 15th July 1978
The High Court rejected the landlord s further revision applica tion on the ground that the question was concluded by the decision in RD Ram Nath  Co  Anr
vs Girdhari Lal  Anr
 It is against the said decision that the present appeal is preferred
The question then is wheth er or not the provision of Section 39 of the Act is attract ed in the backdrop of the above facts
We may now consider the case law on the point to which our attention was called
In Ram Swaroop Rai vs Lilavathi  3 SCC 452 this Court while con struing section 22 of the Act observed that the burden is on the landlord to show that his case falls within the exemption engrafted in the said sub Section
In the present case since the facts are not in dispute the question of onus recedes in the background
In Om Prakash Gupta etc
vs Dig Vijen drapal Gupta etc
   a three Judge Bench had to consider the effect of section 22 read with section 39 of the Act
In that case an eviction suit was filed against the appellant tenant on the ground that the provisions of the Act did not apply to the demised shop and the tenant was therefore liable to be evicted
The Trial Court decreed the suit on the finding that the construction of the suit shop was completed in 1967 and since 10 years had not elapsed from the date of completion of the construc tion the provisions of the Act had no application
The tenant carried the matter in revision but the judgment and decree of the Trial Court was substantially maintained
The tenant thereupon moved the High Court under section 115 CPC The learned Single Judge who heard the revision remitted the matter to the Trial Court for recording a finding as to on what date the construction of the building could be said to have been completed within the meaning of section 22 read with Explanation Ia thereto
The Trial Court returned a finding to the effect that the construction of the disputed shop must be taken to have been completed on the date of the first assessment ie 1st April 1968 within the meaning of the said provision
The tenant chal lenged the finding on the ground that the date of occupation should have been taken to be the date of completion of the construction and not the date of the first assessment
The Division 193 Bench to which the case was referred concluded that the construction of the shop must be deemed to have been com pleted on 1st April 1968 ie at the date of the first assessment and not at the date of actual occupation and hence the provisions of the Act had no application to the building till the date of the decision of the revision application on 23rd March 1978 as the period of 10 years expired later on 31st March 1978
This Court upheld the finding that the date of construction must be taken as the date of first assessment ie 1st April 1968 and not the date of actual occupation
To overcome this difficulty it was contended on behalf of the tenant that on a correct reading of section 22 the exemption engrafted therein would not embrace buildings constructed prior to the en forcement of the Act
This Court construing the language of section 22 of the Act held that the sub section nowhere provided that the building should have been constructed after the commencement of the Act to so interpret it would tantamount to adding words in it which was not permissible
This Court therefore negatived the contention that the exemption under the sub section did not embrace buildings constructed before the Act came into force
As pointed out earlier the revision application was decided on 23rd March 1978 whereas the period of 10 years from the date of comple tion of the construction ie 1st April 1968 was to end on 31st March 1978 ie a week later
Section 39 of the Act therefore clearly did not apply in the facts of that case
Secondly it was found that the suit was instituted on 23rd March 1974 long after the commencement of the Act and was therefore not pending on 15th July 1972 to attract the application of Section 39 of the Act
For these reasons this Court came to the conclusion that the appellant Om Prakash was not entitled to tile protection of section 39 of tile Act
Two features which distinguish this case from the case on hand are i that the revision application was disposed of by the High Court before the expiry of the moratorium period of 10 years granted by section 22 of the Act and ii the suit having been filed long after the commencement of the Act on 15th July 1972 could not be said to be pending at the date of the commencement of the Act to enable the tenant to seek redress under section 39 of the Act
In Vineet Kumar vs Mangal Sain Wadhera   an  eviction suit was filed on the ground of arrears of rent and damages for use and occupation of the demised premises pendente lite
The tenant was inducted in the building stated to have been constructed in 1971 on 7th February 1972 on a monthly rent of Rs250
The building in suit was assessed to house and water tax on 1st October 197 1
The tenant defaulted in the payment of rent despite service of notice dated 24th 194 March 1977
Admittedly the suit was filed after the com mencement of the Act
The point for consideration was wheth er the building which was not 10 years  old on the date of the suit and was therefore exempted from the operation of the Act would be governed by it on the expiry of the period of 10 years pendente lite
Dealing with this contention this Court observed in paragraph 13 of the judgment as under The moment a building becomes ten years old to be reckoned from the date of completion the new Rent Act would become applicable
 The decision in Om Prakash Gupta s case supra was rightly distinguished on the ground that it was not neces sary in that case to deal with the question whether the tenant would be entitled to the benefit of Section 39 as the building had not become ten years old when the revision was disposed of by the High Court on 23rd March 1978
Dealing next with the contention that the Court had to decide the case on the basis of the cause of action that had accrued before the institution of the suit and not on a new cause of action this Court relying on the observations to the effect that subsequent developments can be looked into made in paragraph 14 of the decision in Pasupuleti Venkates warlu vs
Motor and General Traders   ob served as under Normally amendment is not allowed if it changes the cause of action
But it is well recognised that where the amend ment does not constitute an addition of a new cause of action or raise a new case but amounts to no more than adding to the facts already on the record the amendment would be allowed even after the statutory period of limita tion
The question in the present case is whether by seeking the benefit of Section 39 of the new Act there is a change in the cause of action After referring to the case of AK Gupta  Sons vs Damodar Valley Corporation   this Court further observed The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency of the litigation
We see no reason why the benefit of the new Rent Act be 195 not given to the appellant
Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section
Subsection 4 of Section 20 stipulates that in any suit for eviction on the grounds mentioned in clauses a to sub section 2 viz the arrears of rent if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord s cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub section 1 of Section 30 the court may in lieu of passing a decree for eviction on that ground pass an order relieving the tenant against his liability for eviction on that ground
Sections 39 and 40 of the new Rent Act also indicate that the benefit of the new Act will be given to the tenant if the conditions contemplated in those sections are satisfied
Section 39 also indicates that the parties are entitled to make neces sary amendment in their pleadings and to adduce additional evidence where necessary
 On this line of reason this Court set aside the judgment and decree of the High Court insofar as it related to evic tion
We find with respect that Their Lordships committed an error in overlooking the text of Section 39 of the Act
That section in terms says that the suit must be pending at the commencement of the Act to seek the benefit of that provi sion
Admittedly the suit in question was filed after the commencement of the Act and hence the tenant was not enti tled to the benefit of Section 39 of the Act
But that apart in a subsequent decision of this Court in Nand Ki shore Marwah vs Samundri Devi   this Court dissented from the view in Vineet Kumar s case on the ground that the attention of the Court was not drawn to Om Prakash Gupta s case supra which specifically considered the provisions of the Act and in particular the language of Section 39 of the Act to point out that in order to attract that provision it must be shown that the suit was pending at the commencement of the Act ie on 15th July 1975
Refer ring to Section 20 of the Act which bars institution of a suit for eviction of a tenant except on grounds specified in clauses a to g this Court observed as under 196 This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applied then no suit for eviction can be instituted except on the ground specified in the sub sections of this sec tion
Keeping in view the language of this section if we examine the provisions contained in sub section 2 of Section 2 it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in sub section 2 of Section 2 restriction on the institution of suit as provided for in Section 20 subsection 1 quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted
 It may with respect be pointed out that the comment that the Court s attention was drawn to Om Prakash Gupta s case is not correct as this case is specifically mentioned in paragraph 14 of the judgment in that case
Lastly in Atma Ram Mittal vs Ishwar Singh Punia   the appellant landlord had filed an eviction suit in respect of a shop which had been rented to the respondent in 1978
The suit was filed on the ground that the tenant was in arrears of rent from ist December 1981 to 31st May 1982 and the tenancy had been duly terminated by a notice
The suit was filed under sub section 3 of Section 1 of the Haryana Urban Control of Rent and Eviction Act 1973
That sub section provided that nothing in the Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion
Section 131 enumerated the usual grounds on which possession of a building or land could be obtained from a tenant
In November 1984 the tenant applied for dismissal of the suit on the ground that the moratorium period of 10 years expired in June984 since admittedly the demised shop was constructed sometime in June 1974
Quoting the following passage from Ram Swaroop Rai s case supra 197 The legislature found that rent control law had a chilling effect on new building construction and so to encourage more building operations amended the statute to release from the shackles of legislative restriction new construc tions  for a period of ten years
So much so a landlord who had let out his new building could recover possession with out impediment if he instituted such proceeding within ten years of completion
 this Court held as under It is well settled that no man should suffer because of the fault of the court or delay in the procedure
Broom has stated the maxim actus curiae neminem gravabit an act of court shall prejudice no man
Therefore having regard to the time normally consumed for adjudication the ten years  exemption or holiday from the application of the Rent Act would become illusory if the suit has to be filed within that time and be disposed of finally
It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of
That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses
The purpose of legislation would thus be defeated
Purposive interpreta tion in a social amelioration legislation is an imperative irrespective of anything else
 Proceeding further this Court said We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law
If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of ten years which is in reality an impossibility then there would be empty reasons
In our opinion bearing in mind the well settled principles that the rights of the parties crystallise to the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta vs Digviiendrapal Gupta the meaningful con struc 198 tion must be that the exemption would apply for a period of ten years and will continue to be available until suit is disposed of or adjudicated
Such suit or proceeding must be instituted within the stipulated period of ten years
Once rights crystallise the adjudication must be in accordance with law
 In order to appreciate the controversy in the correct perspective it would not be out of place to notice the legislative changes
During the second world war certain orders were issued under the Defence of India Rules 1939 relating to the control and letting of accommodations to cope with the paucity of accommodation
This was followed by an ordinance promulgated in 1946 which was repealed by the UP Temporary Control of Rent and Eviction Act 1947 described as the Old Act by Section 3h of the Act
The measure which was intended to be of a temporary character only continued till the passing of the Act in 1972
When the old Act replaced the 1946 ordinance the expectation was that the acute shortage of accommodation was only a tempo rary feature and would disappear with the passage of time
The hope was belied and the stringent restrictions placed on the landlord s rights in the matter of fixation and recovery of rent and eviction from the rented premises had to be continued indefinitely
These restrictions discouraged building activity which added to the already serious housing problem
There was an urgent need to provide incentives and thereby encourage new constructions
With that in view Section 22 provided that nothing in the Act shall apply to a building during a period of ten years from the date on which its construction is completed
In other words the legislature has relieved the owner of a new building from the restrictive provisions relating to rent etc contained in Sections 4 to 9 of the Act
So also such owners are granted a holiday or recess of ten years from the restric tive provisions regulating letting Chapter III and Evic tion Chapter IV contained in the Act
This freedom from the operation of the Act for ten years is given for the obvious purpose of encouraging building activity to ease the problem of scarcity of accommodation
The provisions of the Act in this behalf must therefore be understood in this background
Section 22 in terms says that the provisions of the Act will not apply to new constructions for a period of ten years from the date of completion of the construction
Read positively it means that the Act will apply to such build ings on the expiry of the recess period
But how are suits already filed during the recess period to be dealt with Does 199 the Act offer any clue in this behalf In this connection the only provisions which come to mind are sections 39 and 40 of the Act
Section 39 deals with suits pending on the date of commencement of the Act
Section 40 extends protec tion to an appeal or revision pending on the date of com mencement of the Act provided it has arisen out of an evic tion suit filed against a tenant to which the old Act did not apply
Such an appeal or revision has to be disposed of in the same manner as the suit is required to be dealt with under Section 39 of the Act
In order to secure the benefit of Section 39 or 40 it must be shown that the suit appeal or revision was pending on the date of commencement of the Act
Secondly if the suit is rounded on the allegation of nonpayment of rent the tenant must within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the suit deposit in court the entire amount of rent and damages for use and occupation of the building with interest as prescribed and landlord s entire cost of the suit to take the benefit of the said provision
If both these conditions are satisfied the law Section 39
mandates that no decree for eviction shall be passed except on any of the grounds specified in the proviso to sub section 1 or clauses b to g of sub section 2 of Section 20 of the Act
Similarly Section 40 lays down that if an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act does not apply is pending on the date of commencement of the Act the benefit of Section 39 will be available to the tenant
What these two provisions emphasise is that in order to avail of the benefit engrafted therein the proceedings ie the suit appeal or revision application must be pending at the date of commencement of
the Act ie 15th July 1972 and the tenant must have deposited the arrears of rent and damages together with interest and full cost of the landlord in the court within one month from the date of such commencement
Once the four conditions of Section 39 set out in the earlier part of this judgment are satisfied the court is debarred from passing a decree in ejectment except on any of the grounds mentioned in the proviso to sub section 1 or in clauses b to g of sub section 2 of Section 20 of the Act
Therefore even in a suit appeal or revision application pending at the date of commencement of the Act a decree for eviction can be passed if the case is brought within the exemption clause of Section 39 not withstanding the fact that the tenant has deposited the full amount of arrears of rent and damages together with interest and cost as required by that section
It therefore seems clear to us on the plain language of Section 39 of the Act that the legislature desired to grant protection from evic tion where the same was sought on the sole ground of arrears of rent
In cases falling within the exemption clauses of that section the legislature has 200 itself permitted the landlord to proceed with the suit and claim eviction on any of the grounds enumerated in the proviso to sub section 1 or in clauses b to g of sub section 2 of Section 20 of the Act if necessary by making the required amendment in the pleadings and by adducing additional evidence where necessary
It therefore seems to us that the legislature desired to limit the scope of the application of Sections 39 and 40 to suits appeals and revisions pending on the date of com mencement of the Act ie 15th July 1972 relating to buildings to which the old Act did not apply and to which the new Act was to apply forthwith and not at a later date
This is clear from the fact that the section contemplates deposit of arrears of rent and damages together with inter est and cost within one month from such date of commence ment meaning the date of commencement of the Act
To put it differently the section expects the tenant to make the deposit within one month from 15th July 1972
This may not be possible unless the Act is to apply to the building forthwith
Of course the benefit of an extended date is given to those cases where the knowledge about the pendency of the proceedings is gained after 15th July 1972
For example where a suit is actually filed before the commence ment of the Act but the summons of the suit is served in October 1972 the tenant would be entitled to make the deposit within one month from the service of the summons to avail of the benefit of this provision
So also it can apply to cases where the tenant had died before the Act came into force or before the expiry of one month from the date of commencement of the Act and the landlord took time to bring the legal representative on record in which case the legal representative would be entitled to seek the benefit from the date of knowledge
Of course this benefit would not be available where the tenant dies after the expiry of the period within which the right is to be exercised
The same would be the case in the case of an appeal or revision application
It seems to us that the legislature intended to give the benefit of Sections 39 and 40 to suits appeals or revisions which were pending on 15th July 1972 and in which the deposit came to be made within one month from that date
The expression such preceding the word commencement  is clearly suggestive of the fact that it has reference to the date of commencement of the Act and the payment must be made within one month from such commencement
Unless we give such a restricted meaning to the section we would not be able to advance the legislative intent to relieve the landlords of new buildings from the rigours of the Act
This interpreta tion is also in tune with the ratio in Ram Swaroop Rai s case supra
201 was argued that the words commencement of this Act  should be construed to mean the date on which the moratorium period expired and the Act became applicable to the demised buildings
Such a view would require this Court to give different meanings to the same expression appearing at two places in the same section
The words on the date of com mencement of this Act  in relation to the pendency of the suit would mean 15th July 1972 as held in Om Prakash Gupta supra but the words from such date of commencement  appearing immediately thereafter in relation to the deposit to be made would have to be construed as the date of actual application of the act at a date subsequent to 15th July 1972
Ordinarily the rule of construction is that the same expression where it appears more than once in the same statute more so in the same provision must receive the same meaning unless the context suggests otherwise Besides such an interpretation would render the use of prefix such  before the word commencement  redundant
Thirdly such an interpretation would run counter to the view taken by this Court in Atma Ram Mittal s case supra wherein it was head that no man can be made to suffer because of the court s fault or court s delay in the disposal of the suit
To put it differently if the suit could be disposed of within the period of ten years the tenant would not be entitled to the protection of Section 39 but if the suit is prolonged beyond ten years the tenant would be entitled to such protection
Such an interpretation would encourage the tenant to pro tract the litigation and if he succeeds in delaying the disposal of the suit till the expiry of ten years he would secure the benefit of Section 39 otherwise not
We are therefore of the opinion that it is not possible to uphold the argument
In the above view of the matter we are of the opinion that the courts below committed an error in giving the benefit of Section 39 of the Act to the tenant since admit tedly the tenant could not and had not made the deposit within one month from the date of commencement of the Act on 15th July 1972 but had made the deposit within a month after the moratorium period expired in 1977
As stated above the legislature intended to limit the application of Sec tions 39 and 40 of the Act to cases where the Act became applicable immediately and the deposit could be made within one month from its applicability and not to cases where the moratorium period was to expire long thereafter
For the reasons stated above we think the courts below were wrong in the view they took
We therefore set aside the judgment and decree of the courts below by allowing this appeal
Having regard 202 to the fact that the respondent will have to look for alter native accommodation we give him a year s time to vacate on condition that he pays all the arrears of rent and damages if due within one month and files an undertaking in the usual form within even time
In the circumstances of the case we think the parties may be left to bear their own costs
RSS appeal allowed


Summary:
After the appellant landed at Trivandrum Airport from Abu Dhabi he was intercepted by the Customs officials detecting that he smuggled 1280 gms
of gold
He was arrest ed on 3111988
On 1221988 he was granted bail on certain conditions
With a view to preventing the appellant from smuggling gold the impugned detention order was passed against him on 2561988 by the Home Secretary Government of Kerala in exercise of the powers conferred by section 31i of the 
The appellant was taken into custody on 281988
The Appropriate Authority and the Advisory Board found sufficient cause for his detention
The detenu challenged his detention moving a Habeas Corpus petition under Article 226 of the Constitution read with section 482 Cr
PC which was dismissed in limine by the High Court
Before this Court
the main grounds of challenge to the detention order were that 1 after the event there was inordinate delay in passing the detention order which showed that there was no genuine
need for detention of the appel lant 2 there was inordinate and unexplained delay of 38 days in execution of the detention order 3 all the docu ments and materials particularly the appellants bail appli cation the bail order the show cause notice and his reply thereto were not placed before the detaining authority 4 these documents and the fact that the appellant s old and new passports were seized and without those it would not be possible for the appellant to carry on smuggling were not brought to the notice of the declaring authority and 5 there was 210 non application of mind
On behalf of the State of Kerala it was submitted inter alia that 1 there was no such delay between the date of detection and the date of passing the order of detention so as to make the grounds stale or to snap  the relation 2 that the delay in execution of the detention order had been explained and 3 that the bail application as well as the bail order were placed before the detaining authority but the same having not been referred to or relied on by the detaining authority copies thereof were not required to be furnished to the detenu along with the grounds of detention
On behalf of the Union of India it was submitted that all the documents and materials that were required to be placed before the declaring authority were duly placed and on consideration of the relevant materials the declaring authority validly made the declaration
Allowing the appeal and setting aside the order of detention this Court HELD 1 It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible
Under a law like the COFE POSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeer ing who owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation the courts should not merely on account of the delay in making of an order of detention assume that such delay if not satisfactorily explained
must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached
Taking of such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention
217B E Ashok Narain vs Union of India  Smt
Rekhaben Virendra Kapadia vs State of Gujarat   Sheikh Salim vs The State of West Bengal   Rajendrakumar Natvarlal Shah vs State of Gujarat   Olia Mallick vs The State of West Bengal  Golam Hussain vs The Commissioner of Police   Odut Ali Miah vs The State of West Bengal  Vijay Narain Singh vs State of Bihar 211  Gora vs State of West Bengal   Rai Kumar Singh vs State of Bihar   Smt
Hemlata Kantilal Shah vs State of Maharasthra   referred to
2 In appropriate cases it could be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention could be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances
But where the delay is not only adequately explained but also is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest there is warrant to consider the link  not snapped but strengthened
219C D Mohammed Saleem vs Union of India 1989 3 Delhi Lawyer 77 Bhawarlal Ganeshmalji vs State of Tamil Nadu   Shafiq Ahmad vs District Magistrate Meerut 1989 4 SCC 556 referred to
3 Seizure of the detenu s passports was no doubt one of the factors that the detaining authority should have taken and did in fact take into account but it was for him to assess the weight to be attached to such a circum stance in arriving at his final decision and it is not open to the Court to interfere with the merits of his decision
221E F 4 From the records it appears that the bail applica tion and the bail order were furnished to the detaining authority on his enquiry
It is difficult therefore to accept the submission of the State Government that those were not relied on by the detaining authority
223A B 5 The constitutional requirement of Article 225 is that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satis faction leading to making the detention order must be commu nicated to the detenu so that the detenu may have an oppor tunity of making an effective representation against the order of detention
It is immaterial whether the detenu already knew about their contents or not
223E F Ramchandra A Kamat vs Union of India   Frances Coralia Muffin vs WC Khambra
  Smt
Ichhu Devi Choraria vs Union Of India   Pritam Nath Hoon vs Union of India   Shri Tushar Thakkar vs Union of India  Lallubhai Jogibhai Patel vs Union of 212 India   Kirit Kumar Chaman Lal Kundaliya vs Union of India  Smt
Ana Carolina D Souza vs Union of India  Mehrunissa vs State of Maharashtra  Mohd Zakir vs Delhi Administration and Khudiram Das vs State of West Bengal   referred to
6 If the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio
225D E State of UP vs Kamal Kishore Saini   Union of India vs Manoharlal Narang   section Gurdip Singh vs Union of India  Ichhu Devi Choraria vs Union of India   Smt
Shalini Soni vs Union of India   referred to
Haridas Amarchand Shah vs KL Verma  distinguished
7 The bail application and the bail order in the instant case were vital materials for consideration
If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete226A B 8 There is no alternative but to hold that non supply of essential documents to the detenu amounted to denial of the detenu s right to make an effective representation and that it resulted in violation of Article 225 of the Con stitution rendered the continue detention of the detenu illegal and entitling the detenu to be set at liberty
226B C 9 Sections 9 and 10 of the COFEPOSA Act imply an obligation on the part of the detaining authority to place the facts and materials that occurred between the date of detention and the date of declaration so as to justify prolongation of the period of detention
228D E 213 Smt
Rekhaben Virendra Kapadia vs State of Gujarat  Ors   Smt
Madhu Khanna vs Administrator Union Territory of Delhi  referred to