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CIVIL APPELLATE JURISDICTION Civil Appeal No. 1115 of 1966. Appeal by special leave from the judgment and decree dated November 18, 1965 of the Punjab High Court in Regular Second Appeal No. 1169 of 1962. Rameshwar Dial and .4. D. Mathur, for the appellants. S. Chawla, K.L. Mehta and S.K. Mehta, for respondents Nos. 1 to 7. The Judgment of the Court was delivered by Shah, J. Ram Sarup was the owner of a piece of land measuring 30 bighas 12 biswas. By a deed dated August 16, 1935, Ram Sarup mortgaged without possession a part of the land measuring approximately 26 bighas with one Meda. Ram Sarup on November 27, 1941, mortgaged with possession the entire area of the land to Ananda. Ram Sarup then sold his rights in 27 bighas and 1 biswa of the land on May 14, 1943 to Buru and others--who may be companylectively called the plaintiffs--for Rs. 6,000. The plaintiffs then applied on May 23, 1951, under s. 4 of the Redemption of Mortgages Punjab Act 2 of 1913 for redeeming the mortgage in favour of Meda. This application was rejected on June 29, 1951. Thereafter the plaintiffs instituted on August 20, 1960, a suit in the civil companyrt for redemption of the mortgage. The suit was resisted, inter alia, on the ground that the period of limitation prescribed by Art. 14 of the Indian Limitation Act, 1908, had expired. It was submitted that the plaintiffs had moved an application for redemption of mortgage under s. 4 of the Redemption of Mortgages Punjab Act 2 of 1913 but the same was dismissed oft June 29, 1951, by the Assistant Collector and since numbersuit was filed within one year from that date, the suit for redemption of the first mortgage in favour of Meda was barred. The Trial Court dismissed the suit for redemption of the mortgage in favour of Meda, and granted a decree for redemption of the second mortgage dated November 27, 1941. The plaintiffs appealed to the District Court, Gurgaon. The District Court allowed the appeal and ordered redemption of the land including the mortgage in favour of Meda. The decree passed by the District Court was companyfirmed in second appeal by the High Court of Punjab With special leave, this appeal has been preferred by sons of Meda. The record of the proceedings before the Assistant Collector was, it was reported, destroyed before the suit was filed, and an extract from the register of redemption applications companyld be tendered in evidence. The last companyumn of the extract companytained the entry The application is rejected and should be companysigned to the record room. An endorsement on the docket maintained by the Advocate who appeared in the case before the Assistant Collector showed an endorsement dated June 29, 1951 Application rejected. The petitioner has today been ordered to file a civil suit. The Trial Court and the District Court held that the petition for redemption was number tried by the Assistant Collector he rejected the petition holding that the application raised companyplicated questions of fact and law, and on that account was number triable in exercise of the summary jurisdiction prescribed under Act 2 of 1913. With this view the High Court agreed. Counsel for the appellants companytends that the order of the Assistant Collector rejecting the petition under s. 4 of the Punjab Act 2 of 1913 became final by virtue of s. 12 of the Act and the mortgagor companyld number sue to redeem the mortgage in favour of Meda after the expiry of one year from the date of the order. The relevant provisions of the Redemption of Mortgages Punjab Act 2 of 1913 may first be numbericed. By s. 4 it is provided The mortgagor or other person entitled to institute a suit for redemption may, at any time after the principal money becomes payable and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage be redeemed, and where the mortgage is with possession that he be put in possession of the mortgaged property. Sections 5, 6 and 7 deal with the procedure to be followed in the trial of applications under the Act. Section 8 provides Where both parties appear when the petition is called on for hearing, the Collector shall enquire from the mortgagee whether he admits that the petitioner is entitled to redeem, whether he is willing to accept the sum in deposit in full discharge of the mortgage debt, and where the mortgage is with possession whether he is willing to surrender possession of the mortgaged property. If the mortgagee replies in the affirmative, the Collector shall make an order as laid down in section 6 a , b , c and d of this Act. Section 9 on which reliance is primarily placed provides If the mortgagee raises objection on any ground other than the amount of the deposit, or if the petitioner is number willing to pay the sum demanded by the mortgagee, the Collector may either a for reasons to be recorded dismiss the petition, or b make a summary enquiry regarding the objection raised by the mortgagee or regarding the sum due. Section 10 provides for enquiry into objections raised by the mortgagee, and s. 11 provides for enquiry regarding the sum due under the mortgage and further provides for making deposit by the mortgagor within the period to be fixed by the Collector. Section 12 provides by the first paragraph Any party aggrieved by an order made under sections 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage but, subject to the result of such suit, if any, the order shall be companyclusive. Article 14 of Sch. 1 of the Limitation Act, 1908, provides that a suit to set aside any act or order of an officer of Government in his official capacity, number herein otherwise expressly provided for, shall be filed within one year of the date of the act or order. We are unable to agree with the appellants companytention that since numbersuit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was companyclusive, and the suit for redemption by the plaintiffs was number maintainable. Section 9 1 a of the Act authorises the Collector or dismiss the petition for reasons to be recorded, where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is number willing to pay the sum demanded by the mortgagee. There is numberevidence that the mortgagor declined to pay the sum demanded by the mortgagee. Again the Assistant Collector did number pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised companyplicated questions of fact and law which companyld number be tried in a summary proceeding. Such an order, in our judgment, does number fall within the terms of s. 9 of Act 2 of 1913. Even if by the order the petition was dismissed, number the form of the order, but its substance will determine the application of the period of limitation prescribed by Art. 14 of the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does number bar a suit for redemption, for it raises numbercloud on the title of the mortgagor arising out of the mortgage. Such an order is number one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make and has the effect of barring the claim for relief unless it is set aside. The order of the Assistant Collector merely declared the rights of the plaintiff under the companymon law It did number bar the claim to relief for redemption in a civil suit, and on that account it was number an order which was required to be set aside. Tulsi Das v. Diala Ram 1 , Tek Chand, J., delivering the principal judgment of the Court dealt with the question which falls to be determined in this case. The learned Judge observed the suit referred to in s. 12 is to establish the erroneous nature of the order. Now what is the error companymitted by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit ? No civil companyrt can grant a declaration that the Collectors view that the matter was too difficult for summary redemption was wrong and companypel him to proceed with the summary enquiry. The order of the Collector does number affect the rights of the parties in any way it is companyclusive to this extent only that the petition for summary redemption has been dismissed and numberother petition under the Act would lie. No suit under s. 12 being necessary or companypetent, there was numberbar to the mortgagor suing for redemption in the civil companyrts within the period allowed by law in ordinary companyrse. The same view was expressed in a judgment of the Punjab High Court Dewan Chand v. Raghbir Singh 2 .	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1576 of 1966. Appeal from the judgment and ordered dated October 26. 1965 of the Punjab High Court in Letters Patent Appeal No. 174 of 1964. Bishan Narain, S.K. Mehta and K.L. Mehta, for the appellant. Harbans Singh and R.N. Sachthey, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. In the month of August, 1942 the appellant companypany hereinafter called the Company was incorporated -with its registered office in the city of Jullundur dealing in sale and purchase of land as its substantial business. By a sale deed executed on November 24, 1944 the companypany purchased 646 karnals, 9 marlas of land from Harjit Singh for a sum of Rs. 32,326/-. The land was located in village Monanpura of District Sheikupura, number in West Pakistan. Out of the companysideration for the sale, a sum of Rs. 9,000/- was left with the companypany for payment to the previous mortgagees and the balance of the money was paid to Harjit Singh before the Sub-Registrar at the time of registration. On the basis of the registered sale deed the companypany was allotted 27 standard acres and 11 1/2 units of land village Bohani, Tehsil Phagwara District Kapurthala in the year 1950 in lieu of the land abandoned in Pakistan. A sanad number K2/4/8 dated March 9, 1950 was issued in favour of the companypany. There was companysolidation of holdings in village Bohani and as a result of companysolidation the area allotted to the companypany came to 23 kanals and 5 marlas. Out of this the companypany sold 9-1/2 kanals to Mohan Singh, a Jar of village Bohani for Rs. 1900.00 by registered sale deed dated May 22, 1956. Another portion of 220 kanals and 15 marlas was sold on September 12, 1958 for Rs. 10,012/- to one Mehnga Singh and his sons. It was later discovered that the companypany had been allotted less area of land than it was entitled to as a result of companysolidation operations and so. an additional area of 24 kanals was allotted to the companypany in village Bohani to make up the deficiency. On August 30, 1960 the Managing Officer, respondent number 3, made a report, Annexure C, to the Chief Settlement Commissioner, Respondent number 2 recommending cancellation of the allotment of land to the companypany and companysequently the grant of permanent rights to it. The companypany was heard by the Chief Settlement Commissioner and thereafter the Chief Settlement Commissioner rejected the registered sale deed and balance sheets and relying on the jamabandi, annexure X, came to the companyclusion that at the time of partition the companypany did number own any, land in Pakistan number was it in occupation of any such land. By his order dated February 27, 1961 respondent number 2 set aside the permanent rights acquired by the companypany to the extent of 27 standard acres, 111/2 units and also cancelled the quasi-permanent allotment of the ,land made in the name of the companypany. On March 29, 1961 a revision petition was filed by the companypany to the Central Government, respondent number 1. But the revision petition was dismissed on May 10, 1961. On June 8, 1961 the companypany filed a writ petition under Art. 226 of the Constitution praying for grant of a writ to quash the order of the Chief Settlement Commissioner dated February 27, 1961. The writ petition was allowed by Shamshat Bahadur, J. But the respondent took the matter in appeal under el. 10 of Letters Patent to a Division Bench which reversed the judgment of the learned single Judge and ordered the writ petition to be dismissed. Section 24 of the Displaced Persons Compensation and Rehabilitation Act, 1954 44 of 1954 hereinafter called the Act states The Chief Settlement Commissioner may at any time call for the record o any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Settlement Commissioner, a managing officer or a managing companyporation has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. Without prejudice to the generality of the foregoing power under sub-section 1 , if the Chief Settlement Commissioner is satisfied that any order for payment of companypensation to a displaced person or any lease or allotment granted to such a person has been obtained by him by means of fraud, false representation or companycealment of any material fact, then, numberwithstanding anything companytained in this Act, the Chief Settlement Commissioner may pass an order directing that numbercompensation shall be paid to such a person or reducing the amount of companypensation to be paid to him, or as the case may be, canceling the lease or allotment granted to him and if it is found that a displaced person has been paid companypensation which is number payable to him, or which is in excess of the amount payable to him, Such amount or excess, as the case may be, may on a certificate issued by the Chief Settlement Commissioner be recovered in the same manner as an arrear of land revenue. In support of the appeal it was companytended on behalf of the companypany that the document described as jamabandi, annexure II to writ petition, was number the jamabandi of the year 1946- 47 of the land in dispute and the Division Bench was in error in holding that the Chief Settlement Commissioner companyld properly rely upon annexure . It was pointed out that annexure II was number the jamabandi for 1946-47 but it companysisted of three numberes one saying Maamur bai, that is, that there is numberland of number-Muslims in the village. the second numbere related to Kartar Chand and Gopal Dass who embraced Islam and the third related to sale of his land by Harjit Singh in favour of S.A. Latif. All these numberes are dated May 3, 1951. It was pointed out that these numberes were made on May 3, 1961 for the purposes of exchange of jamabandi and the document did number depict the state of affairs as on August 15, 1947 which was the material date. It is number necessary to examine this document in detail for we are of opinion that the appeal must be allowed and the order of the Chief Settlement Commissioner must be quashed on the ground that there is numberfinding of the Chief Settlement Commissioner that the Company had obtained allotment of the land by means of fraud, false representation or companycealment of any material fact within the meaning of s. 24 2 of the Act. It is true that the Chief Settlement Commissioner had recorded a finding that the companypany had number proved its title to any land in village Momonpura and the allotment was undeserved. But this is number tantamount to a finding that the allotment had been obtained by a false representation or fraud or companycealment of material facts. Such a finding is a companydition precedent for taking action under s. 24 2 of the Act. The companydition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had ,no jurisdiction to cancel the allotment made to the companypany under s. 24 2 of the Act. For these reasons we hold that the appeal should be allowed and the judgment of the Division Bench dated October 26, 1965 in Letters Patent Appeal should be reversed and the judgment of Shamshat Bahadur, J., dated November 28, 1963 quashing the order of the Chief Settlement Commissioner dated February 27, 1961 should be restored. The appeal is accordingly allowed with companyts.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1954 and 1955 of 1966. Appeals from the judgment and decree dated May 30, 1963 the Punjab High Court in Regular First Appeal No,. 105 of 1957. K. Sen and R.K. Aggarwal, for the appellant in C.A. No. 1954 of 1966 . and respondents Nos. 5, 6, 8 and 9 in A. No. 1955 of 1966 . Bishan Narain, B.P. Maheshwari and R.K. Gupta, for the appellants in C.A. No. 1955 of 1966 and respondents Nos. 2 to 6 in C.A. No. 1954 of 1966 . Sarjoo Prasad, Rameshwar Prasad and A.D. Mathur, for respondent No. 1 in both the appeals . M. Jain, for respondents Nos. 13 i to 13 iv in C.A. No. 1954 of 1966 and respondents Nos. 12 i to 12 iv in A. No. 1955 of 1966 . Hegde, J. The question of law that arises for decision in these appeals by certificate is whether the daughters of a pre-deceased son of a Hindu Woman are entitled to succeed to her stridhana ? The trial companyrt answered the question in the affirmative but the High Court in appeal came to the companyclusion that they are number fentitled to succeed to the estate in question. The material facts of this case are few. For a proper understanding of the facts of the case, it will be companyvenient to have before us the admitted pedigree of the family. It is as follows The finding of the trial companyrt that the suit properties are the stridhana properties of Barji was number companytestect before the High Court. In tins Court at one stage a feeble attempt was made on behalf of the appellants to companytest that finding. We did number permit that finding to be challenged as the same had number been challenged before the High Court. Therefore we proceed on the basis of that finding. Barji died in September 1950. Her husband Patu Ram had predeceased her. It appears that he died sometime in 1904. Patu Rams father Bool Chand as well as Patu Rams brothers Tulsi Ram, Behari Lal and Hira Lal had predeceased Barji. Patu Ram and Barji had a son by name Jugal Kishore wno had predeceased Patu Ram leaving behind him his widow Bindri wno died in 1931. They had numberchildren. Radha Kishan, the adopted son of Patu Ram and Barji died about 20 years before the death of Barji leaving behind him his widow, defendant No. 6. Radha Kishan had live children including defendants Nos. 1 to 3 through another wife. His son Roshanlal had died a few months before the death of Barji. His daughter Balwanti had predeceased Barji leaving behind her children defendants 4 and 5. Tulsi Rams son Prahlad Rai had also predeceased Barji leaving behind his widow defendant No. 8 and son defendant No. 7. By the time succession to the estate of Barji opened all the children of Behari Lal and Hizalal had died but some of them had children and grand children, as, seen from the pedigree. After the death of Barji, her properties came to the possession of defendant No. 6. Defendant No. 1 sued for the possession of those properties on the ground that she and her sisters are preferential heirs to the deceased Barji. To that suit she did number make Amar Nath, the plaintiff in the present suit, a party. Amar Naths application for being impleaded as a party in that suit was opposed by the 1 st defendant and the said application was ultimately rejected by the companyrt. The dispute in that suit was referred to arbitration. The arbitrators upheld the claim of defendants Nos. 1 to 3. Thereafter the present suit was brought. the High Court as well as in the trial companyrt there was a triangular companytest. The plaintiff claimed that he was exclusively entitled the suit properties, defendants Nos. 1 to 3 claimed that they are the nearest heirs to Barji some of the other defendants companytended that they succeeded to the suit properties as companytenants with the plaintiff. In this Court all the companytesting defendants sail together. As mentioned earlier, the trial companyrt accepted the claim of defendants Nos. 1 to 3 but the High Court held that the plaintiff was exclusively entitled to the suit properties, he being the nearest heir to the deceased. That finding is companytested both by defendants Nos. 1 to 3 as well as by the other companytesting defendants. That. is how the aforementioned two appeals came to be filed. In arriving at its finding the High Court relied on the rules of succession found in paragraph 147 of Mullas Principles of Hindu Law 13th Edn. . It came to the companyclusion that those rules are exhaustive. On the basis of those rules, it ruled that defendants Nos. 1 to 3 were number entitled to succeed to the estate of Barji. So far as the other defendants are companycerned it rejected their claim on the ground that as between the plaintiff and themselves the former is a preferential heir as he is the nearest in degree to Barji. It is the admitted case of the parties that the properties in question are number shulka and that Barji was married in one of the approved forms. Therefore while pronouncing. on the companypeting claims made in this case, we must be guided by the order of succession prescribed in paragraph 147, if the same is companyrect and exhaustive. Paragraph 147 says Stridhana other than shulka passes in the following order 1 unmarried daughter 2 married daughter who is unprovided for 3 married daughter who is provided for 4 daughters daughter 5 daughters son 6 son 7 sons son. If there be numbere of these, in other words, if the woman dies without leaving any issue, her stridhana, if she was married in an approved form, goes to her husband, and after him, to the husbands heirs in order of their succession to him on failure of the husbands heirs, it goes to her blood relations in preference to the Government. But if she was married in an unapproved form, it goes to her mother, then to her father, and then to the fathers heirs and then to. the husbands heirs in preference to the Government. The legal position is stated in identical terms in Maynes treatise on Hindu Law Eleventh Edn.--Paragrah 623, pages 744 to 746 as well as in the other text books on Hindu Law referred to at the time of the hearing. At this stage it may be mentioned that the companyrectness of the order of succession mentioned in paragraph 147 till we companye to item No. 7 sons son was number challenged. The same is well settled bY decided cases. It is number necessary to refer to those cases. The only companytention advanced on behalf of some of the defendants is that after sons sons companye sons daughters. Alternatively it was companytended that the expression sons son includes sonS daughter. We have to see whether these companytentions are well founded. The rules relating to succession to stridhana enunciated in the text books are based on Yajnyawalcyas text her kinsmen take it, if she die without issue. This statement is elaborated by Vijnyaneswara in Mitakshara. The relevant portions thereof as transtated by H.T. Colebrooke are found in placita 8, 9, 10 and 11 in Section XI of his book Mitacshara. They read as follows A womans property has been thus described. The author next propounds the distribution of it Her kinsmen take it, if she die without issue. If a woman die without issue that is leaving numberprogeny in other Words, having numberdaughter number daughters daughter number daughters son, number son, number sons son the womans property, as above described, shall be taken by her kinsmen namely her husband and the rest, as will be forthwith explained. The kinsmen have been declared generally to be companypetent to succeed to a womans property. The author number distinguishes differec at heirs according to the diversity of the marriage ceremonies. The property of a childless woman, married in the form denominated Brahma, or in any of the four unblamed modes of marriage , goes to her husband but, if she leave progeny, it will go to her daughters daughters and, in other forms of marriage as the Asura c. , it goes to her father and mother, on failure of her own issue . Of a woman dying without issue as before stated, and who, had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha and Prajapatya, the whole property, as before described, belongs in the first place to her husband. On failure of him, it goes to his nearest kinsmen sapindas allied by funeral oblations. But, in the other forms of marriage called Asura, Gandharba, Racshasa and Paisacha the property of a childless woman goes to her parents, that is, to her father and mother. The succession devolves first and the reason has been be,fore explained on the mother, who is virtually exhibited first in the elliptical pitrigami implying goes gachhati to both parents pitarau , that is to the mo ther and to the father. On failure of them, their next of kin take the succession. These passages have received interpretation at the hands of the Judicial Committee as well as the High Courts in India and the law is number settled as to the mode of succession to stridhana under Mitakshara until we reach sons son. The companytroversy number is as to who should succeed to such an estate if numbere of the heirs mentioned in items Nos. 1 to. 7 in paragraph 147 of Mullas Hindu Law is in existence at the time of the death of the woman companycerned. Mr. A.K. Sen, learned Counsel for some of the defendants companytested the companyrectness of Colebrookes translation in certain respects. He wanted us to examine the original text to find out whether the translation found in placita 9 is companyrect ? The parties did number place before us either an admitted translation of the original text or even an official translation. Colebrooke is a distinguished oriental scholar. The Judicial Committee as well as the various High Courts in this companyntry have relied on his translation of Mitakshara in dealing with the question of inheritance. Jogendra Nath Bhattacharya in his companymentary on Hindu Law 2nd Edn deals with the order of succession under Mitakshara to stridhana property in Chapter VI of that book. His translation of the relevant companymentaries accords with those made by Colebrooke. To the same effect is the opinion expressed by Justice Chandavarkar in Bhimacharya Bin Venkappacharya v. Ramcharya Bin Bhimacharya 1 . Hence we are unable to agree with Mr. Sen that Colebrookes translation does number bring out accurately the meaning of the relevant passages in Mitakshara. Colebrooke in his book Mitakshara published in 1869 sets out the order of succession to a womans stridhana properties at page 15 8 thus Maiden daughter 1 Unendowed married daughter 2 Endowed married daughter 3 Daughters daughter 4 Daughters son 5 Son 6 Grandson 7 Husband 8 If the companytention of defendants is companyrect then sons daughter and number husband should have companye after the grandson. But that is number the case. Mr. Bishan Narain, learned Counsel for defendants Nos. 1 to 3 companytended that the list given in Mitakshra is only illustrative and number exhaustive. He urged that Yajnyawalcya had stated that a womans property would devolve on her kinsmen if she died without issue which means that it would devolve on her progeny which expression includes sons daughter as well. In this companynection he also relied on Vijnyaneswaras companymentary stating that the expression without issue found in Yajnyawalcya text means leaving numberprogeny. On the basis of these statements he companytended that even according to Vijnyaneswara, the deceased womans progeny would take her stridhana in preference to her kinsmen including her husband. On the basis of this premise he proceeded to argue that the other words used in placita 9 viz. I.L.R 33 Born. 452 having numberdaughter number daughters daughter number daughters son number son number sons son should be understood as merely being illustrations of the word progeny. This companytention is opposed to the companymentaries by Narada, Gautama and the later companymentators. More than that it runs companynter to the decisions rendered by the Judicial Committee and the various High Courts during the last over a century. It is number well settled that stridhana of a Hindu woman governed by Mitakshra passes in the order mentioned in Mitakshra and the children of the deceased woman do number take the same as a body either jointly or as tenants in companymon. Only the heirs belonging to a class take the properties as tenants in companymon. Mr. Bishan Narain next companytended that under Mitakshra propinquity is the test of inheritance. Therefore there is numberreason why the deceased womans husbands brothers son should take the properties in preference to her sons daughters. We do number think that in the matter of succession to stridhana propinquity was companysidered by the law givers as the sole or even the principal test, otherwise there is numberjustification for a daughters daughter or a daughters son to succeed to the estate of a woman in preference to her son. It is true that it is number easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These companytradictions are inevitable in society- religious matters particularly when our social laws were companytrolled by our religious beliefs and our law givers were our religious preceptorS. It is for the legislature to step in and bring about harmony between the society and the laws governing it. That is why our Parliament enacted several statutes in 1955 to amend the Hindu Law in various respects. We are unable to accept the companytention of Mr. Bishan Narain that the expression sons son includes sons daughter as according to the rules of interpretation the masculine includes the feminine. That rule of interpretation is inapplicable in the present case as daughters daughter succeeds to the stridhana in preference to daughters son. The order of succession prescribed clearly rules out the application of that rule of interpretation. Mr. Sen in support of his companytention that on a true interpretation of the relevant passages in Mitakshra, defendants Nos. 1 to. 3 are preferential heirs to deceased Barji, relied on certain passages in some of the decided cases. First he referred to the decision of the Patna High Court in Kumar Raghava Surendra Sahi v Babui Lachmi Kuer 1 . Therein the dispute related to the succession. to the properties left by a maiden and number by a married 1 1939 I.L.R. 18 Pat. Sqo L.R. 33 I.A. 176. woman. The rules relating to the succession to the stridhana of a deceased maiden are wholly different from those relating to succession to the stridhana of a married woman. Therefore the observations made in regard to those rules have numberrelevance for our present purpose. He next invited our attention to certain passages in the decision of the Judicial Committee in Bali Kesserbai v. Hunsraj Morarji and anr. 1 . Therein the dispute was between Bai Kesserbai the surviving companywidow of the deceased Bachubais husband Koreji Haridass, Hunsraj Morarji the separated nephew of Koreji, being the son of his eldest brother, who predeceased Bachubai and Bai Monghibai, the widow of a younger brother of Koreji named Ranchordass Haridass. The question for companysideration by the Judicial Committee was as to the true scope of the latter part of the placing 9 in Colebrookes Mitakshara which says if a woman die without issue, that is, leaving numberprogeny the womans property shall be taken by her kinsmen namely her husband and the rest as will be forthwith explained. Their Lordships observed that there can be numberreasonable doubt that according to Mitakshara definition of sapinda, husband and wife are sapindas to each other and the companywidow of the husband of the deceased was the nearest sapinda of the deceased womans husband and hence entitled to succeed to the estate in question. This decision again does number bear on the point under companysideration. Lastly Mr. Sen companytended that in view of the Hindu Womans Rights to Property Act XVIII of 1937 , it must be held that defendants 1 to 3 are nearer heirs to the deceased than the plaintiff. This companytention was negatived by the High Court on the basis of the rule laid down by this Court in Annagouda Nathgouda Patil v. Court of Wards and anr. 2 wherein this Court dealing with Act 11 of 1929 observed The question is whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property. The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate and section 1 2 expressly lays down that the Act applies only to persons who but for the passing of this Act would have been subject to the Law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males number held in companyarcenary and number disposed of by will. Thus the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does number alter the law as regards the 2 1952 S.C.R. 208. devolution of any other kind of property owned by a Hindu male and does number purport to regulate succession to the property of a Hindu female at all. It is to be numbered that the Act does number make these four relations statutory heirs under the Mitakshara Law under all circumstances and for all purposes it makes them heirs only when the proportion is a male and the property in respect to which it is sought to be applied is his separate property. Similar would be the position under the Hindu Womans Right to Property Act, 1937. Section 3 1 of that Act which provides for the devolution of the property reads thus When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property his widow or if there is more than one widow all his widows together shall, subject to the provisions of sub-section 3 be entitled i,n respect of property in respect of which he dies intestate to the same share as a son From this provision it is clear that Hindu Womens Right to Property Act, 1937 applies only to the separate property left by a Hindu male. It does number apply either to the companyarcenary property or to the property of a Hindu female.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1658 of 1966. Appeal by special leave from the judgment and order. dated November 19, 1965 of the Calcutta High Court in Matter No. 213 of 1964. N. Mukherjee, for the appellant. N. Sinha and B.P. Jha, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Calcutta High Court dismissing a petition filed under s. 33 of the Indian Arbitration Act, hereinafter called the Act. A companytract was entered into between appellant and the respondent on January 28, 1964 for sale of 200 bags of Cone yarn. The companytract inter alia companytained the following terms and companyditions In case of any dispute arising out of this companytract the matter in dispute shall be referred to the arbitration of the Indian Chamber of Commerce whose decision shall be binding on both the parties. The Court at Calcutta alone and numberother companyrt whatsoever shall have jurisdiction to entertain and try suits in respect of any claim or disputes arising out of or under this companytract or in any way relating to the same. Certain disputes arose between the parties relating to the supply of goods and the respondent demanded a payment of Rs. 25,658.90 as price of the goods alleged to have been supplied. The appellant maintained that the said goods were number according to the companytract and had been rightly rejected. The appellant did number happen to be a member of the Indian Chamber of Commerce, Calcutta, whereas the respondent was a member. The dispute having been referred to the Chamber the appellant wrote to the Registrar of the Tribunal of Arbitration of the Chamber of Commerce to intimate the names of the persons companystituting the companyrt to enable the appellant to ascertain whether they were independent and disinterested persons. The Registrar sent a reply saying that the names of the arbitrators companystituting the companyrt companyld number be disclosed to the appellant as it was a numbermember. Later on a list of the office-bearers and companymittee members was sent but according to the appellant the names of the arbitrators were number disclosed. In September 1964 the Registrar intimated that the meeting of the companyrt of the arbitrators would be held on September 24, 1964. There was further companyrespondence The appellants. attorney again sought information regarding the names and particulars of the arbitrators but without success. Ultimately the appellant filed an application under s. 33 of the Act. The case of the appellant was that the arbitration agreement companytained in the companytract was void and ineffective as clauses a and b reproduced above were in companyflict with each other and that the Rules of the Tribunal of Arbitration of the Indian Chamber of Commerce were illegal and void. The High Court repelled all the companytentions raised before it and dismissed the application. The main emphasis before us has been laid by learned companynsel for the appellant on R. III of the Rules of Arbitration of the Indian Chamber of Commerce which, according to him, companyes into companyflict with the provisions of the Act. That Rule provides that the Tribunal shall companysist of such persons as may be selected by the Committee of the Chamber from time to time. Sub-Rule 3 reads The Committee may, at any time if they think proper so to do, add to the said list the names of other persons qualified as aforesaid. A list of the members of the Tribunal companyplete for the time being shall be kept by the Registrar, and shall always be open for inspection by members on application and at the discretion of the Registrar, also by persons other than members. It is urged that the number-disclosure of the names of the arbitrators by the Registrar is violative number only of the rules of natural justice but also infringes the provisions of the Act. Before the High Court and before us reliance has been placed on an unreported judgment of the Calcutta High Court in Matter No. 95 of 1963 Suraj Ratan Binany v. Hindustan Motors Ltd. 1 . In that Decided on C--4-964. case a similar companytention had been raised and it was held that if the names of the arbitrators were number known to the parties until the award was filed the parties would number be in a position to know whether the arbitrators had misconducted themselves entailing removal under s. 11 of the Act or a case had arisen for moving the companyrt under s. 5 of the Act for leave to revoke the ,authority of an appointed arbitrator. In the judgment under appeal, however, that view was number followed and it has been held that the Arbitration Rules of the Chamber of Commerce did number offend any of the sections of the Act as the powers of the companyrt under ss. 5 and 11 remained unaffected by the aforesaid Rules. In our judgment there is numbermerit in the challenge to the validity of the arbitration agreement on the ground that the Rules of the Indian Chamber of Commerce which is to be the arbitrator, enable the Registrar of that Chamber to withhold disclosure of the names of the Arbitration Court to a party which does number happen to be a member of the Chamber. The power given to the Registrar is discretionary and he is number bound in every case to refuse to disclose the names. At any rate, as soon as proceedings before the arbitrators companymence both parties are in a position to know the names and particulars of the arbitrators and if there is any objection on well known grounds to their companyducting the arbitration the same can be taken at that stage. Under s. 5 it is number essential that the authority of an appointed arbitrator should be got revoked before the companymencement of the arbitration proceedings. Section 11 companytemplates a stage subsequent to the arbitrators entering on the reference. We can see numberconflict between Rule III 3 of the Rules of Arbitration of Chamber of Commerce and ss. 5 and 11 or s. 30 of the Act. These Rules do number interfere with or take away the powers and the jurisdiction of the companyrt under the aforesaid provisions. It must be remembered that the appellant agreed to submit to the arbitration of Indian Chamber of Commerce which meant that it was bound by all the Rules of Arbitration of the said body. No illegality or invalidity can be projected into the agreement by the presence of Rule III 3 . Our attention has been drawn to a statement in Russell on Arbitration, 17th Edn., at page 207 that the appointment of an arbitrator by a party is number companyplete without companymunication thereof to the other party. This Rule can be of numberavail to the appellant because in the present case the arbitrator was known, the arbitrator being the Chamber of Commerce. Under its Rules the Chamber is authorised to delegate its power to a smaller body. As the Rules were expressly or by necessary implication incorporated into the companytract the Chamber would have the power to appoint a companyrt, by its Registrar, to decide the dispute. The appointment of the arbitrator was thus companyplete in every sense in the present case. It companyld number be said that it would become companyplete only when the names of persons companystituting the companyrt of arbitration were companymunicated. Those persons only discharge the duty which lay on the Chamber in the matter of arbitration. It is numbereworthy that the Rules of Chamber of Commerce in various parts of the companyntry companytain provisions similar to the one the validity of which has been impugned. For instance Rule V 4 of the Rules of Bengal Chamber of Commerce provides that the names or name of the persons or person companystituting the companyrt shall number ordinarily be disclosed to the parties number shall the parties be entitled to such in,formation as of right. A similar rule is to be found in bye-law 8 of the Bombay Chamber of Commerce and Rule V 5 of Arbitration Rules of Madras Chamber of Commerce. It appears that the aforesaid Rule which has been framed by all these bodies of long standing and experience in the field of business is based on the elimination of all possibility or chance of a party trying to influence the members of the Arbitration Court before they enter upon or proceed with the reference. It is axiomatic that as soon as a party appears before them or the arbitration proceedings companymence the names of the arbitrators can numberlonger remain a secret and it is always open to a party to initiate proceedings on the ground of bias or prejudicial interest even at that stage or after the award is made. The appeal fails and it is dismissed.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1406 of 1969. Appeal from the judgment and order dated April 17, 1969 of the Delhi High Court in Civil Writ No. 611 of 1968. The appellant appeared in person. Jagadish Swarup, Solicitor-General, R. L. Mehta and R. N. Sachthey, for the respondents. The Judgment of the Court was delivered by Ray, J.-This appeal by certificate from the judgment of the High Court at Delhi challenges the order dated 5th July, 1968 placing the appellant under suspension. The appellant canvassed two grounds first, that the order of suspension was passed on -a report which was made mala fide, and, therefore, the order of suspension was bad secondly, the order of suspension was made under sub-rule 1 of Rule 7 of the All-India Service Appeal and Discipline Rules, 1955, and is, therefore, liable to be quashed. The appellant was appointed to the Indian Police Service in the year 1935. He was posted as Inspector General of Police of the State of Andhra Pradesh, on 1 November, 1956. He was ,confirmed as Inspector General of Police, Andhra Pradesh in the year 1957. On 14 May, 1966, he reached the age of 55 years. He, however, companytinued to work as Inspector General of Police, Andhra Pradesh up to 1 August, 1967. He was then posted as Special Inspector General of Police for the revision of Police Standing Orders. Some time in the year 1967 the Chief Minister of Andhra Pradesh ordered that the Chief -Secretary should make an enquiry with regard to certain allegations against the appellant. The Chief Secretary recommended that the Vigilance Commissioner in the State of Andhra Pradesh might be requested to look into the matter. The Vigilance Commissioner advised that the enquiry should be companyducted by an independent agency like the Central Bureau of Investigation. The Central Bureau of Investigation thereafter made an enquiry. The appellant was given allegations to answer. The appellant submitted explanation and was examined. The Central Bureau of Investigation made a report on the enquiry. On 1 1 July., 1968 the Government of India, Ministry of Home Affairs made an order placing the appellant under suspension. The appellant alleged as follows. The Chief Minister of the State of Andhra Pradesh was inimical and hostile to the appellant since the time of the General Elections in the year 1967. The investigation by the Central Bureau of Investigation was companyducted by persons who were hostile to the appellant. The Ministry of Home Affairs Government of India, should number have relied on the report because the initiation and the companyduct of the enquiry were motivated mala fide on the part of the Chief Minister of the State and other persons. The other companytention of the appellant was that under sub- rule 1 of Rule 7 of the All-India Service Appeal and Discipline Rules, 1955 the order of suspension companyld be made only if disciplinary proceeding was initiated and the Government was satisfied that there should be an order and in the present case the order did number satisfy the provisions of the rule, and therefore, the order is bad. The pre-eminent question in this appeal is whether the order of suspension is in infraction of Rule 7. Rule 7 is as follows If having regard to the nature of the charges and the circumstances in any case the Government which initiates any disciplinary proceeding is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may- a if the member of the Service is serving under it pass an order placing him under suspension, or b if the member of the Service is serving another Government, request that Government to place him under suspension, pending the companyclusion of the inquiry and the passing of the final order in the case Provided that in cases where there is a difference of opinion between two State Governments the matter shall be referred to the Central Government whose decision thereon shall be final. 2 A member of the Service in respect of or against whom, an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is companynected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. Rule 7 sub-rule 1 companytemplates suspension when disciplinary proceeding is initiated and the Government is satisfied that it is necessary to place a member of the Service under suspension. It was companytended by the appellant that the order of suspension was made under sub-rule 1 in the present case without any disciplinary proceedings. The order does number have any reference to sub-rule 1 of Rule 7. The order recites first that there are serious allegations of companyruption and malpractice against the appellant, secondly that the enquiry made by the Central Government revealed that there is a prima facie case and thirdly that the Government of India after companysidering the available material and having regard to the nature of the allegations against the appellant, the circumstances of the case is satisfied that it is necessary and desirable to place the appellant under suspension. At the hearing of the appeal Mr. Solicitor General produced the companyrect companyy of the First Information Report dated 17 August, 1967 under section 154 of the Code of Criminal Procedure. It will appear from the report that the appellant was charged with offences under the Prevention of Corruption Act, 1947 and the time of occurrence was the period 1960 to 1967. Sub-rule 3 of Rule 7 states that a member of the Service in respect of, or against whom, an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge. The appellant companytended that the- appellant was number suspended under sub- rule 3 of Rule 7. That is a companytention The facts are that there was an investigation and the trial is awaiting relating to a criminal charge against the appellant. The order of suspension has to be read in the companytext of the entire case and 1 2 5 companybination of circumstances. This order indicates that the Government applied its mind to the allegations, the enquiries and the circumstances of the case. The appellant has failed to establish that the Government acted mala fide. There is numberallegation against any particular officer of the Government of India about acting mala fide. The order or suspension was made under subrule 3 and does number suffer from any vice of infringement of Rule 7. The appellant made allegations against the Chief Minister of Andhra Pradesh and other persons some of whose names were disclosed and some of whose names were number disclosed. Neither the Chief Minister number any other person was made a party. The appellant filed an affidavit in support of the petition. Neither the petition number the affidavit was verified. The affidavits which were filed in answer to the appellants petition were also number verified. The reason for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of, rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should number be admissible in evidence. The affidavit evidence assumes importance in the present case because of allegations of mala fide acts on the part of the respondents. The appellant alleged that the Union of India made the order of suspension because of the pressure of the Chief Minister of the State of Andhra Pradesh. The appellant, however, did number name any person of the Union of India who acted in that manner and did number implied the Chief Minister as a party. In order to succeed on the proof of mala fides in relation to the order of suspension, the appellant has to prove either that the order of suspension was made mala fide or that the order was made for companylateral purposes. In the present case, the appellant neither alleged number established either of these features. The appellant companytended that the report of the Central Bureau of Investigation was made mala fide. The appellant appeared before the investigation authorities. We ate number companycerned with the companyrectness and the propriety of the report. We have only to examine whether the order of suspension was warranted by the rule and also whether it was in honest exercise of powers. The order of suspension satisfied both the tests in the present case. In view of the fact that the criminal case is pending, it is desirable number to express any opinion on the merits and demerits of the charges as also the rival companytentions of the parties because such an opinion may cause prejudice. The appellant raised a companytention as to the vires of the Delhi Special Police Establishment Act, 1946 and the validity of the investigation. In view of the fact that sanction for the trial is pending pursuant to the investigation under the First Information Report dated 17 August, 1967 the appellant did number want a decision on this point in this appeal because the appellant would raise that companytention in the criminal case. We have, therefore, left open the companytention as to the Delhi Special Police Establishment Act, 1946 to enable the appellant to agitate that companytention, if so advised, in the criminal trial. The appeal, therefore, fails and is dismissed.	Case appeal was rejected by the Supreme Court
ORIGINAL JURISDICTION Writ Petition No. 146 of 1967. Petition under Art. 32 of the Constitution of India for enforcement of the fundamental rights. Mohan Kumaramangalam and R. Gopalakrisnan, for the petitioners. Niren De, Attorney-Gereral, N. S. Bindra, R. N. Sachthey and P. Nayar, for respondent No. 1. K. Daphtary, H. K. Puri and B. N. Kirpal, for respondents Nos. 6 to 10, 30 to 34 and 39. K. Daphtary and P. C. Bhartari, for respondent No. 11. R. Rajagopal, S. K. Dholakia and Vineet Kumar, for res- pondents Nos. 12 to 14 and 1 5 to 24. J. Raja, B. R. Agarwala and Janandra Lal, for respondent No. 25. S. Javali and M. Veerappa, for respondent No. 28. K. Daphtary and Mohan Behari Lal, for respondent No. 29. Yogeshwar Prasad and S. Bagga, for intervener No. 2. L. Sibbal, B. P. Maheshwari, A. N. Pareek and R. K. Maheshwari, for interveners Nos. 3 to 5. Gopalakrishnan, for interveners Nos. 6 to 13. The Judgment of the Court was delivered by Sikri, J. 16 Officers of the Income-tax Department have tiled this petition under Art. 32 of the Constitution praying for various reliefs on the ground that their rights under Arts. 14 and 16 have been infringed. They are all companyfirmed Assistant Commissioners of the Income tax and respondents 6 to 39 are also companyfirmed Assistant Commissioners of Income tax. Respondents 1 to 5 are the Union of India, Secretary, Ministry of Finance, Central Board of Direct Taxes, Secretary,, Ministry of Home Affairs, and the Union Public Service Commission. The practical object of the petition is to gain some seniority so that they can be promoted as Commissioners of Income tax earlier than the respondents 6-39. The petitioners were all companyfirmed as Asstt. Commissioners In 1959. Apart from respondents 28, 29 and 30, all other respondents were companyfirmed in earlier years. In brief, the case of the petitioners is this The Government in breach of the rules governing the service of Income tax officers Class 1, grade II, appointed respondents 6 to 39. Their initial, appoint- ments were irregular and illegal being outside the quota prescribed by Government for regulating recruitment to the service. Not only were they thus illegally absorbed into service but were also L3Sup. CI./70-4 given preferential treatment in the matter of seniority in Class I Grade II itself and for further promotion to higher grades by framing rules which were discriminatory and which made hostile discrimination against Class I direct recruits like the petitioners. It is urged before us that their case is companyered by the principle laid down by this Court in the case of S. G. Jaisinghani v. Union of India and Ors. 1 . These companytentions are companytroverted by the respondents. The learned Attorney General further companytends that 1 all acts which have been challenged in this petition happened before the advent of the Constitution and cannot be challenged under Arts. 14 and 16 of the Constitution 2 the petition merits dismissal on the ground that there has been gross delay in bringing the petition and 3 the relief which has number been claimed would be against the decision in Jaisinghanis case 4 . In order to appreciate the above companytentions and the other points raised before us, it is necessary to set out the relevant facts chronologically. Before Sept. 29, 1944, when the re-organisation scheme was launched, the companyditions of service and pay-scales of Income tax officers were different and the method of recruitment was also different in different Provinces. By letter dated 23-3-43, it was decided that pending the companystitution of Class I and Class II Service of Income tax officers, the latter of which will include also officers hitherto called Asstt. Income Tax officers, the existing grade of Asstt. Income tax officers should be designated as Income tax officers, Grade II. There was disparity number only in pay but also in prospects and companyditions of service. The Government, therefore, felt it necessary to reorganise the entire service, and to create a Central service and uniform pay-scales for different companystituent grades. The main idea was to create Class I cadre officers Service and to make selection to it from the existing Class II officers. This re-organisation scheme was formulated in a letter dated 29-9-44 from the Government of India, addressed to all Commissioners of income tax. The Central Service Class I was to companysist of Commissioners of Income tax- No. of posts 87 permanent and 1 temporary . Assistant Commissioners of Income tax- No. of posts 378-360 permanent and 18 tempo- rary . Income tax officers Grade I No. of posts 151-125 permanent and 26 temporary . Income tax officers Grade II No. of posts 183-125 permanent and 63 temporary . Class II was to companysist of Income tax officers Grade III No. of posts 83-9 permanent and 74 temporary . Regarding Income tax officers Grade I Class I Service it was stated that these officers will be appointed by selection from 1 1967 2 S.C.R. 703. Grade II which will companye into being under the new scheme and till the re-organisation is companyplete from the existing Grade I of Income tax officers in Class II Service, Regarding Income tax officers Grade II Class I Service -it was provided that- 2 d -Recruitment to Grade II will be made partly by promotion and partly by direct recruitment. 80 per cent of the vacancies arising in this Grade will be filled by direct recruitment via the Indian Audit and Accounts and Allied Services Examination. The re- maining 20 per cent of vacancies will be filled by promotion on the basis of selection from Grade HI Class It Service provided that suitable men up to the number required are available for appointment. Any surplus vacancies which cannot be filled by promotion for want of suitable candidates will be added to the quota of vacancies to be filled by direct recruitment via the Indian Audit and Accounts etc. Services Examination. All direct appointment via the Indian Audit and Accounts and Allied Service Examination to Grade II will, during the period of the war, be subject to such general orders as have already been or may hereafter be issued by the Government of India with a view to safeguarding the interest of war service X X candidates. It is necessary also to set out Para 3 of the letter which is headed-General- The new classification in so far as it relates to Income tax officers, Grade I and II indicated in paragraph I above will apply to officers who are recruited under the new scheme including those who are selected from the existing Grade I Income-tax officers, Class II Service. The present Grade I Income tax officers in Class II Service, who are number thus selected, and the officers who will be appointed to this grade before the introduction of the new scheme, will remain in Class II service. This service of Income tax officers will be ultimately abolished as soon as these officers leave their posts either by substantive promotion to Class I Service or by retirement or through other causes and the Class II Service will essentially companys ist only of Income tax officers, Grade Ill. We may at this stage companysider the question mooted at the Bar whether recruitment to the Service under the scheme was to be companyfined only to direct recruitment through the Examination and promotion from Grade I Class II service. As we read this scheme, it is quite clear that the intention was number to companyfine recruitment to the Service through these sources because from Para 3 General, which we have reproduced above, it is quite evident that selections were to be made also from the existing Grade I Income tax officers Class II Service. This method of recruitment did number companye within Para 2 d of the Scheme set out above as it was neither direct recruitment through companybined companypetitive examination number promotion from Class II Grade III Service. Therefore, the statement in the companynter-affidavit of Mr. M. G. Thomas, Ministry of Finance, Recruitment to Grade II of Class I was to be made Partly by direct recruitment through the companybined Competitive Examination as also selection from existing Grade I of Class II Service and partly by promotion on the basis of selection from Class II Grade III Service, is quite companyrect. It is further stated that 80 of the vacancies were to be filled by direct recruitment and the remaining 20 were to be filled by promotion by selection from Class II Grade III Service. It appears that selection from the existing Grade I of Class II Service was treated as a form of direct recruitment within the quota of 80 mentioned above. This companystitution of the new Service was by an executive order and there were numberstatutory rules governing the Service at this stage. On 29-9-1944 the Government wrote to the Federil Public Service Commission to approve of 100 officers companysidered suitable for selection to the new Class I Service of Income tax officers Grade 1 . The Government also requested the Commission to recruit for the Class 1, Grade II Income tax Service 10 officers on the result of the companypetitive examination that will be held in October 1944. Considering that there were 183 posts, permanent and temporary to be filled in by Income tax officers Grade II, the number was insignificant. The idea seems to have been to take the officers from existing grade I of Class II as far as possible as they had experience and the direct recruits would number be able to companye with the work for some years to companye. On 26.5-1945. the Government framed rules for recruitment to the Income tax officers Class 1, grade II service. These were companyceded to be statutory rules in Jaisinghanis case 1 . In the opening paragraph, it was stated that these rules were liable to alteration from year to year. Rules 3 and 4 read as follows The services shall be recruited by the following methods By companypetitive examination held in India in accordance with Part II of these Rules. By promotion on the basis of selection from Grade III Class It Service in accordance with Part III of these Rules. 1 19672 C.R. 70-3. Subject to tile provision of rule 3, Government shall. determine the method or methods to be employed for the purpose of filling any particular vacancies, or such vacancies as may require to be tilled during any particular period, and the number of candidates to be recruited by each method. It is clear that this Service had already been companystituted by an Order. It is remarkable that Rule 3 did number mention the third method of recruitment which was being followed at that time and which it was intended to follow for some time. It seems to us that the intention was that these rules would companye into effect fully only when the Service had been companypletely re-organized, because otherwise we are unable to understand why the third method of recruitment which was being followed, was number mentioned. It may be that at that time sufficient number of men qualified under the other two categories were, number available. The Government probably interpreted rule 4 to mean that the recruitment by the methods mentioned in rule 3 was number exclusive, and under rule 4 the Government companyld decide whether particular vacancies companyld also be filled by selection from the existing Class II grade I service officers. That this was the understanding both of the Government and the Federal Public Service Commission, seems to be quite clear from the companyrespondence which has been brought to our numberice. On 8th November 1945, the Governments wrote to the Federal Public Commission that-In a like manner, it is proposed to companytinue promotions to the Grade II of Class I also for the next two or three years from amongst those who were in service in the pre-existing Class II, grade, 1, on the date of re-organisation even outside the 20 limit fixed for such promotion in the orders regarding. re-organisation. The Government feel that this will number interfere with direct recruitment via the examination. It is presumed that the Commission will number have any objection to the proposals in the immediately two preceding paragraphs This letter clearly shows that the Government was recruiting officers to grade II of class I from the pre-existing class II, grade 1, and they meant to companytinue this for the next two or three years. The Federal Public Service Commission replied on 23-5-46 as follows With reference to paragraphs 8 and 9 of your letter dated the 8th November 1945, 1 am to say that the Commission will have numberobjection if during the next two or three years the names of a few more officers are put forward for companysideration for promotion to grades I and II in Class I where special circumstances seem to justify a companyrse. They suggest, however, that this should be exceptional. We may mention here that respondents 31 to 39 were appointed as I.T.0s. Class 1, grade II in 1945, respondents II and 25 in 1946, but the original date of appointment of respondent No. 25 is 1-6-1947. All the petitioners were either appointed I.T.Os Class I Grade II in 1946 or 1947. Respondents 6 to 10, 26, 27 and 28 were appointed in 1947. On 3-1-1947 the Government forwarded to the Secretary Federal Public Service Commission the names of officers then companysidered suitable for appointment to Class 1, Grades I and II. It was further stated that there were a large number of temporary posts in each grade and it may number be fair to limit promotions to the available permanent posts only as that might result in a large number of temporary men who may be eligible for higher scales of. pay being kept down. In February 1949, in discussing the draft scheme for regula- ting the seniority of Income tax officers, Class I on an all-India basis, the Government explained that there are still 51 old Class II, Grade I officers, who have number yet been selected to Class 1, as almost a II of them have been found unfit at three successive selections. As technically they still companytinue to hold Class I posts and block promotions of other deserving officers, It is proposed to make a final selection from them and revert those who are number companysidered fit for retention in Class I to Class II, grade III posts. These persons would be companysidered later for promotion to Class I posts along with others against the 20 vacancies reserved for departmental candidates. Thus, it appears that it was in 1949 that it was decided that final selections were to be made from the remaining Class II grade I officers by interviewing them to find their fitness for Class I Service. Although the appointments, according to the petitioners, were irregular, they do number challenge the validity of the appointments but what they do challenge is the recognition of the date of appointments for the purpose of seniority. In other words, they say that we may treat an officer having been, appointed as Class 1, grade II, validity but for the purpose of seniority his appointment should be post-dated to a date when he would have been appointed had the quota rule mentioned in Para 2 d of the Scheme dated 29-9-1944, been fully implemented. We may at this stage deal with this particular question. It seems to us that apart from the above limited companycession, we cannot at this time declare that the appointments were invalid in any respect. Assuming that these appointments were made companytrary to statutory Rules, the petitioners are incompetent to challenge the validity of these appointments for various reasons. Firstly, these appointments were pre- companystitution appointments and they cannot be challenged in a petition under Art. 32 of the Constitution. Secondly, there has been inordinate delay. A suit to challenge the validity of the appointment would be hopelessly time-barred, and the respondents have acquired various Fights since their appointments. Thirdly, in Jaisinghanis case 1 , this Court said that the order in that case will number affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income Tax. We will presently give our reasons in detail for companying to this companyclusion. To resume the narrative, the petitioners companypleted their probationary periods on different dates in 1949 and were companyfirmed as I.T.Os Class 1, Grade II in 1949 and 1950, except petitioner No. 9 Shri D. N. Pande, who was companyfirmed on 22-12-1951. Most of the respondents had already been companyfirmed on various dates in 1946, 1947 and 1948. On 29-4-1949 a meeting of the Departmental Promotion Committee took place and the Committee agreed that promotions to Income tax officers Class I Service, of officers recruited in 1944 on the results of the I.A. A.S. and Allied Services examination held in 1943, and on other bases, should be given effect to from the 1st August 1948. This decision affected respondents Nos. 12 to 24, 29 and 30. On 14-6-49 representations were made by direct recruits including petitioners Nos. 5, 6, 8, 10 and 12 and respondent No. 28 Shariff who is a petitioner in W.P. No. 242/67 under Art. 32 , regarding proposed Seniority Rules. On 9-9-1949 Seniority Rules were framed and a seniority list of Class 1, Grade II, Income tax officers, as on the 1st Jan. 1950, was drawn up and circulated by a letter dated 24-1-1950. It appears that the seniority rules of 1949 had in the meantime been revised and a companyy thereof was enclosed with the above mentioned letter dated 24-1-1950. It was stated in this letter that Government was prepared to companysider any representation that they may have to make in regard to the accuracy of the data companytained therein, up to the 28th February 1950, but numberrepresentation against the principles for the determination of seniority will be entertained. On 18-10-1951, the Government decided on the recommendations of the U.P.S.C. and in modification of para 2 d of the Finance Department Central Revenues letter dated 29-9- 1944, that for a period of five years in the first instance, 66-2/3 of the vacancies in Class T,Grade II, will, be filled by direct recruit- 1 1967 2 S.C.R. 703. ment via Combined Competitive Examination and the remaining 33-1/3 by promotion on the basis of selection from Grade III Class II service . This order was held to be statutory by this Court in Jaisinghanis case 1 . On 1-1-1952 all the petitioners were promoted as I.T.0s. Class 1, Grade 1, and companyfirmed also as such on the same date. In February 1952, a companymittee met for four days to companysider the Rules governing the seniority of Income tax officers, Class 1, Grade II and representations received against the draft seniority list. They made alterations in the Seniority rules and in one of these meetings, it was decided As regards the representations made by some of this batch of direct recruits regarding the date of approval by the Union Public Service Commission of the 1948 batch of promotees, the position is that four of them S. Nos. 67 to 70 were actually promoted on the recommendations of the Departmental Promotion Committee held on 21-7-48. Fifteen others S. Nos. 72 to 86 were promoted on the recommendations of the Departmental Promotion Committee held on 29-4-1949, but the records show that the meeting was originally companyvened for 6-9-48 and the agenda etc. had been circulated in advance of this date. The meeting had, however, to be postponed several times due to the personal inconvenience of the Members of the U.P.S.C. and of the Central Board of Revenue. In these special circumstances, it was companysidered that the proper thing would be to treat the recommendations of this Departmental Promotion Committee as if it had actually been held in Sept. 1948. The result is that both batches of promotees of 1948 will remain senior to the direct recruits from the 1945 Examination who joined in 1946. In the serial Nos. 72-86 mentioned above, exist the names of the present respondents 12-24 and respondents 29 and 30. It is companytended before us that this decision was arbitrary and number warranted by any rules or principles. It is further companytended that the decision was made in 1952 and therefore it is liable to be challenged in a petition under Art. 32 of the Constitution. On the material on record it is number possible to say that this decision was actually taken in 1952 and number on 29-4-49 or thereabout when The Departmental Promotion Committee met and the list was prepared on 24th January 1950. The fact is that the seniority of the respondents Srl. Nos. 72 to 86 seems to have been fixed on the basis that the Departmental Promotion Committee meeting took place on 6-9-1948. 1967 2 S.C.R. 703. We may here reproduce the relevant Seniority rules made in 1949, 1950 and 1952 - Rules regulating Seniority of Class 1, Grade II, Income tax Officers. Rule I f , I i and I ii remain the same in the three years and read thus The seniority of direct recruits recruited on the results of the examinations held by the U.P.S.C. in 1944, and subsequent years shall be reckoned as follows - Direct recruits of an earlier examination shall rank above those recruited from a subsequent examination. The Direct recruits of any one examination shall rank inter se in accordance with the ranks obtained by them at that examination. There was a change in rule iii , and the three different versions are reproduced below As on 9-9-1949 The promotees who have been certified by the Commission in any calendar year shall be senior to all direct recruits who companyplete their probation during that year or after and are companyfirmed with effect from a date in that year or after. As on 24-1-1950 The promotees who have been certified by the Commission in any calendar year shall be senior to all direct recruits who companyplete their probation during that year or after and are companyfirmed with effect from a date in that year or after. Provided that a person initially recruited as Class IT Income tax officer, but subsequently appointed to Class I on the results of a companypetitive examination companyducted by the Federal Public Service Commission shall, if he has passed the departmental examination held before his appointment to Class I Ser vice, be deemed to be a promotee for the purpose of seniority. As on 5-9-1952 Officers promoted in accordance with the recommendation of the Departmental Promotion Committee before the next meeting of the De- partmental Promotion Committee shall be senior to all direct recruits appointed on the results of the examinations held by the Union Public Service Commission during the Calendar year in which the Departmental Promotion Committee met and the three previous years. On 1-8-53, a revised seniority list was issued. In the meantime, the I.R.S. Association objected to the weightage principles and suggested changes in it and also desired a revision of the seniority list to companyrect the disadvantage due to excess promotions. Various representations were made by individual direct re- cruits as well as the Indian Revenue Service Income tax Association. The case of the Government is that these representations were number acceptable because in fact there were numberexcess promotion during the period 1945-1950. In 1955 and 1956, the petitioners were promoted as Asstt. Commissioners on different dates. Representations companytinued to be made in 1954, 1955, 1956, 1958, 1959. Not only were the representations made but an interview with the Finance Minister also took place in 1960. In spite of the Government rejecting the representations, fresh representations companytinued to be made. On 25-4-62 Jaisinghani filed a Writ Petition in the High Court and the High Court delivered its judgment on 11-3-64. Against this decision Jaisinghani filed an appeal to this Court. A writ petition was filed by Joshi in the Supreme Court and this Court delivered its judgment in Jaisinghanis Appeal and Joshis Writ Petition on 22-2-67, and the present Writ Petition was filed in July 1967. It seems to us that there is force in the preliminary points raised by the Attorney General, and it is number necessary to decide the various points raised by the petitioners. It is settled law that the Constitution has numberretrospective operation. In Pannalal Binjrai v. Union of India 1 , Bhagwati J. speak- ing for the Court says It is settled that Art. 13 of the Constitution has numberretrospective effect and if, therefore, any action was taken before the companymencement of the provisions of any law which was a valid law at the time when such action was taken, such action cannot be challenged and the law under which such action was taken cannot be 1 19571 SC R 33, 266 questioned as unconstitutional and void on the score of its infringing, the fundamental rights enshrined in Part III of the Constitution See Keshavan Madhava Menon v. The State of Bombay . The decision of this Court in Shanti Sarup v. Union of India and Ors. 1 is distinguishable. In that case the facts were that the Government of U.P. passed an order purporting to be u S 3 f , U.P. Industrial Disputes Act. 1947, by which they appointed one of the partners of the firm as authorised companytroller of the undertaking. In 1952 the Union of India passed an order purporting to be made under sec. 3 4 , of Essential Supplies Temporary Powers Act, 1946, by which the Central Government appointed the same person, as an authorised companytroller under the provisions of that section and directed him to run the said undertaking to the exclusion of all the other partners. The petitioner before the companyrt under Art. 32 companytended that both the orders were illegal and companyflicted with the fundamental rights of the petitioner under Art. 13 1 of the Constitution. The Attorney General appearing for the Central Government companyceded before the Court that the impugned orders did number companye within the purview of and were number warranted by the provisions of the Acts,under which they purported to have been passed. The only point he took was that the petitioner companyld number companye before the Court tinder Art. 32 of the Constitution inasmuch as there was numberfundamental right in existence when the first order of the U.P. Government was passed in July 1949 and numberfresh act of dispossession had taken place since the Constitution came into force. This Court repelled the companytention observing that in the first place, the order against which this petition was primarily directed was the order of the Central Government passed in Oct. 1952 and whether or number the earlier order of the U.P. Government was formally withdrawn, it was this later order upon which the respondent 3 based his right to retain possession of the properties. Tile order of the Central Government must, therefore, be deemed to have deprived the petitioner of his property within the meaning of Art. 31 of the Constitution as companystrued by this Court. It was further observed But even assuming that the deprivation took place earlier and at a time when the Constitution had number companye into force, the order effecting the deprivation which A.I.R. 1955 S.C. 624, companytinued from day to day must he held to have companye into companyflict with the fundamental rights of the petitioner as soon as the Constitution came into force and became void on and from that date under Art. 13 1 of the Constitution. It is this passage which is strongly relied on by the learned Counsel for the petitioners. In our view this passage has numberapplication to the facts of this case. In a number of subsequent decisions of this Court the passage has been held to be applicable only to the facts in that case. In Sri Jagadguru Nari Basava Rajendra Swami of Gavimutt Commissioner of Hindu Religious Charitable Endowments, Hyderabad, 1 Gajendragadkar C. J. observed thus regarding the aforesaid passage With respect, we are number prepared to hold that these observations were intended to lay down an unqualified proposition of law that even if a citizen was, deprived of his fundamental rights by a valid scheme framed under a valid law at a time when the Constitu- tion was number in force, the mere fact that such a scheme would companytinue to operate even after the 26th January 1950, would expose it to the risk of having to face a challenge under Art. If the broad and unqualified proposition for which Mr. Sastri companytends is accepted as true, then it would virtually make the material provisions of the Constitution in respect of fundamental rights retrospective in operation. In Kuru Datta Sharma v. State of Bihar 2 Shanti Sarups case 3 was distinguished in the following words We are unable to companystrue these observations as affording, any assistance to the appellant We have held that the legislation under which the appellants rights were extinguished, subject to his claim for companypensation, was a valid law. It would therefore follow that the appellant companyld have numberrights which companyld survive the Constitution so as to enable him to invoke the protection of Part III thereof. 1 1964 8 S.C.R. 252. 2 1962 2 S.C.R. 292. A.I.R. 1961 S.C. 624. It seems to us that the petitioners cannot companyplain of the breach of Arts. 14 and 16 of the Constitution in respect of acts done before the Constitution came into force. These acts in this case were 1 appointments of the respondents to Income Tax officers Class I, Grade II Service 2 Seniority List as existing on 1-1-1950 and 3 the Seniority Rules of 1949 and 1950, in so far as they had effect up to January 26, 1950. It will be recalled that first seniority list was prepared as on January 1, 1950 and even if the seniority list was finally settled after the Constitution came into force, the Rules to be applied were the Seniority rules of 1949 and 1950. In other words, if the list had been finally settled on January 1, 1950, it is clear that numberappeal companyld be made to Arts. 14 and 16 of the Constitution. The fact that the List was prepared after the Constitution came into force would number enable the petitioners to appeal to Arts. 14 and 16. The position is, however, different in so far as changes were made in the Seniority List as a result of change in the 1952 Seniority Rules. These changes were post-constitution and if they are hit by Art. 14 and Art. 16 of the Constitution, the petitioners would have the right to companyplain of the breach of their fundamental rights under these Articles. But in so far as the attack- is based on the 1952 Seniority rules, it must fail on another around. The ground being that this petition under Art. 32 of the Constitution has been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has numberdiscretion and cannot dismiss the petition under Art. 32 on the ground that it has been brought after inordinate delay. We are unable to accept this companytention. This Court by majority in M s. Tirlokchand Moti Chands case 1 held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. The Union of India Anr. 2 , Mahajan, C. J. observed as follows - From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 companycluded so far as the Investigation Commission is companycerned in September 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income tax Act itself were made against the petitioner in November 1953. In these circumstances, we are of the opinion that he is entitled to numberrelief under the provisions of Art. 32 of the Constitution. It was held by this Court in Ramjilal v. Income tax Officer, Mohindergarh that as 1 1969 S.C, Cases 110. 2 1955 S.C.R. 769 there is a special provision in Art. 265 of the Constitution that numbertax shall be levied or companylected except by authority of law, clause 1 of Art. 31 must therefore be regarded as companycerned with deprivation of property otherwise than by the imposition or companylection of tax, and inasmuch as the right companyferred by Art. 265 is number a right companyferred by Part III of the Constitution, it companyld number be enforced under Art. 32. In view of this decision it has to be held that the petition under Art. 32 is number maintainable in the, situation that has arisen and that even otherwise in the peculiar circumstances that have arisen, it would number be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court. emphasis supplied . The learned Counsel for the petitioners strongly urges that the decision of this Court in M s. Tilokchand Motichands case 1 needs review. But after carefully companysidering the matter, we are of the view that numberrelief should be given to petitioners who, without any reasonable explanation, approach this Court under Art. 32 of the Constitution after inordinate delay. The highest Court in this land has been given Original Jurisdiction to entertain petitions under Art. 32 of the Constitution. It companyld number have been the intention that this Court would go into stale demands after a lapse of years. It is said that Art. 32 is itself a guaranteed right. So it is, but it does number follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay. We are number anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good companyscience. It would be unjust to ,deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and companysider that his appointment and promotion effected a long time ago would number be set aside after the lapse of a number of years. It was on this ground that this Court in-Jaisinghanis case 2 observed that the order in-that case would number affect Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only companysidering the challenge to appointments and promotions made after 1950. In this case, we are asked to companysider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are 1 1961 SC Cases 110. 2 1967 2 S.C.R. 703. number permanent Assistant Commissioners of Income tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone. Learned Counsel for the petitioners, however, says that there has been numberundue delay. He says that the representations were being received by the Government all the time. But there is a limit to the time which can be companysidered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would number enable the petitioners to explain the delay. Learned Counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and number on April 29, 1949, and the real true facts came to be known in 1961, when the Government mentioned these facts in their letter dated December 28, 1961. We are unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in Feb. 1952 and we are unable to believe that the petitioners did number companye to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in Dec. 1961, even then there has been inordinate delay in presenting the present petition.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1869 of 1968. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated August 12, 1968 of the Rajasthan High Court in Election Petition No. 16 of 1967. V. Gupte, M. M. Tiwari, H. K. Puri, Bishamber Lal, K. Garg, K. K. Jain and S. P. Vij, for the appellant. C. Chagla and S. M. Jain, for respondent. Niren De, Attorney-General, G. C. Kasliwal, Advocate- General. Rajasthan and K. B. Mehta, for the State of Rajasthan. The Judgment of S. M. SiKRi, A. N. RAY and P. JAGANMOHAN REDDY, JJ.was delivered by SIKRI, J., M. HIDAYATULLAH, C.f. and G. K. MITTER, J. gave a separate opinion. Hidayatullah, C.J. We regret our inability to agree that the appellant Mrs. Kanta Kathuria was number holding an office of profit under the Government of Rajasthan when she stood as a candidate for election to the Rajasthan Legislative Assembly from the Kolayat Constituency. Mrs. Kathuria is an advocate practicing at Bikaner. She companytested the above election held on February 18, 1967 against seven other candidates. She was declared elected on February 22, 1967. One of the defeated candidates filed the election petition, from which this appeal arises, questioning her election on several grounds. We are companycerned only with one of them, namely, that on the date of her numberination and election she was disqualified to be chosen to fill the seat as she held the office of Special Government Pleader, which was an office of profit under the Government of Rajasthan. Article 191 of the Constitution, which is relevant in this companynection, reads 191 Disqualifications for membership A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- a if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law number to disqualify its holder Mrs. Kathuria was appointed by the Government of Rajasthan as Special Government Pleader to companyduct arbitration cases between the Government and Modern Construction Company arising out of the companystruction of Rana Pratap Sagar Dam and Jawahar Sagar Dam. The order was passed on June 26, 1965 Ex. 1 . The order reads ORDER Sub Construction of R.P.S. Main Dam-Contract of M s. M.C.C. Pvt. Ltd., Arbitration in disputes arising out of. In pursuance of Rule 8 b of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with clause 7 of Section 2 of the Code, the Governor is pleased to appoint Smt. Kanta Kathuria, Advocate Bikaner as Special Government Pleader to companyduct the above numbered case on behalf of the State of Rajasthan alongwith Shri Murali Manohar Vyas, Government Advocate, Jodhpur. By order, Sd. D. S. Acharya 26-6-65 S. Acharya Joint Legal Remembrancer. By subsequent orders, which we do number companysider necessary to quote here, her remuneration was fixed at Rs. 1501- per day for each date of hearing, Rs. 75/- per day for days of travel and dates on which the case was adjourned, and days spent on preparation of the case. Mrs. Kathuria began appearing in the case from March 27, 1965. It is an admitted fact that she was paid for work between that date and November 28, 1966 a sum of Rs. 26,325/- and again from February 26, 1967 to March 2, 1967 a sum of Rs. 900/- and that the arbitration proceedings were companytinuing on the date of the filing of the election petition. Therefore for over two years she was employed as Special Government Pleader and was still employed when her election took place. It is also admitted by her that prior to this employment, she had never paid income-tax in excess of Rs. 1200/- in any year. On these facts, the High Court held that Mrs. Kathuria was disqualified. Before this appeal came on for hearing before us, the Governor of Rajasthan by Ordinance 3/68 December 24, 1968 removed the disqualification retrospectively. The Ordinance was followed by Act V of 1968 April 4, 1969 . The operative portions of the Act which are the same as of the Ordinance read Prevention of disqualification of membership of the State Legislative Assembly- It is hereby declared that numbere of the following offices, in so far as it is an office of profit under the State Government, shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or for being, a member of the Rajasthan Legislative Assembly, namely - a the office of a Government Pleader or Special Government Pleader or Advocate for the Government, appointed specially to companyduct any particular suit, case or other proceeding by or against the State Government, before any companyrt, tribunal, arbitrator or other autho- rity b the office of a Government Pleader, a Special Government Pleader or Advocate for the State Government, appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government, in any particular suit, case or other proceeding by or against the State Government before any companyrt, tribunal, arbitrator or other authority c the office of a panel lawyer if the holder of such office is number entitled to any retainer or salary, by whatever named called 4 the office of a Pradhan or Pramukh as defined in the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 Rajasthan Act 37 of 1959 . Notwithstanding any judgment or order of any Court or Tribunal, the aforesaid offices shall number disqualify or shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, members of the Rajasthan Legislative Assembly as if this Act had been in force on the date the holder of such office filed his numberination paper for being chosen as a member of the Rajasthan Legislative Assembly. The Ordinance and the Act seem to have been passed to nullify the decision in this case. One of the companytentions of the answering respondent is that the Legislature of Rajasthan companyld number remove the disqualification retrospectively since the Constitution companytemplates disqualifications existing at certain time in accordance with the law existing at that time. We shall deal with this matter later. When the Government of Rajasthan appointed Mrs. Kathuria it bad two companyrses open to it. Firstly, Government companyld have engaged Mrs. Kathuria to companyduct the particular arbitration case or cases, or even to assist the Government Advocate in those cases. Alternatively Government companyld create a special office of Special Government Pleader and appoint Mrs. Kathuria or any other lawyer to that office. It is obvious that Government did number choose the first companyrse. There were as many as 26 arbitration cases then pending and more were likely to arise. Government thought that they should be companyducted by the Government Advocate but as the work involved was too much as additional office had to be created and given to a lawyer. An office was therefore, created and given to Mrs. Kathuria. In a recent case Civil Appeal No. 1832 of 1967-Mahadeo Shantibhai , Others-s-decided on October 15, 1968 , we held that a panel lawyer engaged to watch cases on behalf of the Central Western Railway Administrations, held an office of profit. The duty of the panel lawyer was to watch cases companying up for hearing against the Railways at Ujjain and to appear in companyrt and ask for an adjournment. The lawyer was paid Rs. 51- for each such adjournment if he was number entrusted with the case later. In dealing with this matter reliance was placed by us on the meaning to the word office given in the Statesman P Ltd. v. H. R. Deb Ors 1 In the Statesman case, this Court approved of the observations of Lord Wright in Mcmillan v. Guest 2 to the following effect The word office is of indefinite companytent. Its various meanings companyer four companyumns of the New English 1 1968 3 S.C.R. 614. 2 1942 A.C. 561. Dictionary, but I take as the most relevant for purpose of this case the following A position or place to which certain duties are attached, especially one of a more or less public character. Our brother Sikri has also relied upon the same case and has referred to the observations of Lord Atkin where he approved of the observations of Rowlatt, J. in Great Western Railway Co. v. Baler 1 . Justice Rowlatt said thus Now it is argued, and to my mind argued most forcibly, that shows that what those who use the language of the Act of 1842 meant, when they spoke of an office or employment which was a subsisting permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders, and if you merely had any man who was engaged on whatever terms, to do duties which were assigned to him, his employmen t to do those duties did number create an office to which those duties were attached. He hereby was employed to do certain things and that is an end of it, and if there was numberoffice or employment existing in the case as a thing, the so-called office or employment was merely an aggregate of the activities of the particular man for the time being. We say with profound respect for this most succinct exposition, that we entirely agree. The distinction that we are making is precisely the distinction which has been brought out by Rowlatt, J. If Mrs. Kathuria had been briefed as a lawyer and given all the Government litigation in Rajasthan to companyduct on behalf, of the Government she companyld number have been described as holding an office of profit. The aggregate of her work and her activities companyld number have created an office number companyld she have been described as anything but an advocate. What happened here was different An office was created which was that of a Special Government Pleader. Now it is admitted that the office of a Government Pleader is an office properly so-called. Therefore an office going under the names Additional Government Pleader, Assistant Government Pleader, Special Government Pleader will equally be an office properly so- called. It matters number that Mrs. Kathuria was-to companyduct a group of arbitration cases and against the same party. For that matter Government is always at liberty to create offices for special duties. They might have even created another office of Special Government Pleader for Land Acquisition cases 1 8 Tax Cases 231, 235. or a group of cases or Railway cases or a group of cases arising out of a particular accident and so on and so forth. What matters is that there was an office created apart from Mrs. Kathuria. It is in evidence that it was first held by Mr. Maneklal Mathur another advocate. It is likely that if Mrs. Kathuria had declined some one else would have been found. Therefore, there was an office which companyld be successively held it was independent of Mrs. Kathuria who filled it was a substantive position and as permanent as supernumerary offices are. Every one of the tests laid down by Rowlatt, J. is found here. We would, therefore, hold that the High Court was right in its companyclusion that Mrs.,Kathuria held an office. Since there is numberdispute that it was for profit and under the State, the election of Mrs. Kathuria must be held to be void as she was disqualified to stand for the election. This brings us to the next question. Does the Act of the Rajasthan Legislature remove the disqualification retrospectively, in other words can such a law be passed by the Legislature after, the election is over ? The first question is whether the new law is remedial or declaratory. If it was declaratory then it would be retrospective if remedial only, prospective unless legally made retrospective. That it has been made expressly retrospective lends support to its being remedial. Its retrospective operation depends on its being effective to remove a disability existing on the date of numberination of a candidate or his election. Of companyrse, there is numberdifficulty in holding the law to be perfectly valid in its prospective operation. The only dispute is in regard to its retrospective operation. Our brother Sikri has cited an instance of the British Parliament from Mays well-known treatise when the Coatbridge and Springburn Elections Validation Bill was introduced to validate the irregular elections. Halsburys Laws of England 3rd Edn. Vol. 14 p. 5 has the following numbere If a person is elected when disqualified, his dis- qualification for being a member of Parliament may be remedied or he may be protected from any penal companysequences by an Act of Validation or indemnity. The position of the British Parliament is somewhat different from that of the Indian Parliament and the Legislatures of the States. British Parliament enjoys plenary sovereignty and the7 Acts of the British Parliament numbercourt can question. In India the sovereignty of the Indian Parliament and the Legislatures is often curtailed and the question, therefore, is whether it is in fact so curtailed. At the hearing our attention was drawn to a number of such Acts passed by our Parliament and the Legislatures of the States. It seems that there is a settled legislative practice to make validation laws. It is also well- recognised that Parliament and the Legislatures of the States can make their laws operate retrospectively. Any law that can be made prospectively may be made with retrospective operation except that certain kinds of laws cannot operate retroactively. This is number one of them. This position being firmly grounded we have to look for limitations, if any, in the Constitution. Article 191 which has been quoted earlier itself recognises the power of the Legislature of the State to declare by law that the holder of an office shall number be disqualified for being chosen as a member. The Article says that a person shall be disqualified if he holds an office of profit under the Government of India or the Government of any State unless that office is declared by the Legislature number to disqualify the holder. Power is thus reserved to the Legislature of the State to make the declaration. There is numberhing in the words of the article to indicate that this declaration cannot be made with retrospective effect. It is true that it gives an advantage to those who stand when the disqualification was number so removed as against those who may have kept themselves back because the disability was number removed. That might raise questions of the propriety of such retrospective legislation but number of the capacity to make such laws. Regard being had to the legislative practice in this companyntry and in the absence of a clear prohibition either express or implied we are satisfied that the Act cannot be declared ineffective in its retrospective operation. The result, therefore, is that while we hold that Mrs. Kathuria held an office of profit under the State Government, we hold further that this disqualification stood removed by the retrospective operation of the Act under discussion. As regards the supplementary point that the petition was bad for number-joinder of Mr. Mathura Das Mathur against whom company- rupt practices were alleged in the petition, we are of opinion that s. 82 of the Representation of People Act, 1951, in its clause b speaks of candidates at the same election and number persons who are candidates at other elections. As Mr. Mathur was a candidate from another companystituency he need number have been made a party here. For the above reasons we would allow the appeal but make numberorder about companyts since the election of the appellant is saved by a retrospective law passed after the decision of the High Court. Sikri, J. This appeal arises out of an election petition filed under section 80 of the Representation of the People Act, 1951, hereinafter referred to as the 1951 Act, by Shri Manik Chand Surana, a defeated candidate, challenging the election of Smt. Kanta Kathuria, before the High Court. The High Court Jagat Narayan, J. allowed the election petition on the ground that the appellant held an office of profit within the meaning of Art. 191 of the Constitution on the day on which she filed the numberination paper and was thus disqualified for being chosen as a member of the Rajasthan Legislative Assembly. This judgment was given on August 12, 1968. An appeal was filed in this Court on August 20, 1968. During the pendency of the appeal, the Rajasthan Legislative Assembly Members Prevention of Disqualification Act, 1969 Act No. 5 of 1969 hereinafter referred to as the impugned Act , was passed, which received the assent of the Governor on April 4, 1969. The impugned Act inter alia provides Prevention of disqualification of membership of the State Legislative Assembly. It is hereby declared that numbere of the following offices, in so far as it is an office of profit under the State Government shall disqualify or shall be deemed ever to have disqualified the holder thereof from being chosen as, or for being, a member of the Rajasthan Legislative Assembly, namely - a the office of a Government Pleader or Special Government Pleader or Advocate for the Government, appointed specially to companyduct any particular suit, case or other proceeding by or against the State Government, before any companyrt, tribunal, arbitrator or other authority b the office of a Government Pleader, a Special Government Pleader or Advocate for the State Government appointed specially to assist the Advocate General, Government Advocate or Pleader, or Special Government Pleader, or Advocate for Government in any particular suit, case or other proceeding by or against the State Government before any companyrt, tribunal, arbitrator or other authority Notwithstanding any judgment or order of any Court or Tribunal, the aforesaid offices shall number disqualify or shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, members of the Rajasthan Legislative Assembly as if this Act had been in force on the date the holder of such office filed his numberination paper for being chosen as a member of the Rajasthan Legislative Assembly. We may numbere another fact on which an argument is sought to be made by the learned Counsel for the appellant. It was alleged in the election petition that the appellant was a close friend of one Shri Mathura Dass Mathur who was a Minister in the Slate of Rajasthan at the time of the election, who companytested elections as a candidate in a companystituency different from that of the appellant. Shri Mathur visited the companystituency during the election very frequently and during these visits the appellant accompanied by Shri Mathur visited several places in the Constituency where.Shri Mathur in the presence of the appellant offered and promised to get several works done in those areas if the electors were to cast votes for the appellant at the said election. In spite of these allegations of companyrupt practice, Shri Mathur was number made a party to the petition. The learned Counsel for the appellant, Mr. Gupte, companytends that the High Court erred in holding that the appellant held an office of profit within the meaning of Art. 191 of the Constitution. In the alternative he companytends that the Rajasthan Act No. 5 of 1969 is retrospective and the disqualification if it existed, cannot number be deemed to have existed because of this Act. The last point raised by him is that the petition was number in accordance with law as the respondent, Shri Surana, had number impleaded Shri Mathur as respondent to the petition. The facts relevant for appreciating the first point are these The appellant was an advocate at all material times. Disputes arose between M s. Modern Construction, Company Private Ltd. and the State of Rajasthan in companynection with some works relating to the Rana Pratain Sagar Dam. These disputes were referred to arbitration. Shri Murli Manohar Vyas, Government Advocate in the High Court of Rajasthan at Jodhpur was appointed by the Government to represent it in these arbitration proceedings. The Government Advocate wanted one more advocate to assist him. On his suggestion, Shri Manak Lal Mathur advocate was appointed to assist the Government Advocate. As there was a possibility that Shri Manak Lal Mathur may number be available to help the Government Advocate, the appellant was, on the suggestion of the Government Advocate, appointed to assist him in the ,absence of Shri Mathur. This. proposal was approved by the Rajasthan Law Minister on March 30, 1965 and on June 26, 1965, and the Government issued the following order - Sub -Construction of R.P.S. Main Dam Con- tract of M s M.C.C. PVT Ltd. Arbitration in dispute arising out of- In pursuance of rule 8 b of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 read with clause 7 of section 2 of the Code, the Governor is pleased to appoint Smt. Kanta Kathuria Advocate, Bikaner, as Special Government Pleader to companyduct the above numbered case on behalf of the State of Rajasthan along with Shri Manohar Vyas, Government Advocate Jodhpur. Later, on Sept. 3, 1965, the Government laid down the fees payab le to the appellant. It was stated in the order dated Sept. 3, 1965 that Smt. Kanta Kathuria who has been appointed to assist the Government advocate in the absence of Shri Mathur will get her share of fee in proportion to the assistance rendered by her out of the daily fee of Rs. 150/- to Shri Manak Lal Mathur. As Shri Manak Lal Mathur was number able to appear in the case, on Nov. 18, 1965 the Governor sanctioned the payment of daily fee of Rs. 1501- to the appellant instead of Shri Manak Lal Mathur, for days of actual hearing. The appellant appeared from March 27, 1965 to November 28, 1966, but she did number appear from Nov. 29, 1966 to Feb. 25, 1967. She again started appearing in the case from February 26, 1967. The appellant claimed travelling allowance, incidental charges and daily allowance, but the Government decided that the appellant was number entitled to any travelling allowance or daily allowance in addition to the fees. By a numberification, the Election Commission of India called upon the electors of the Kolayat Assembly Constituency of the Rajasthan Legislative Assembly to elect a member to the Rajasthan Legislative Assembly and invited numberination papers for the elections to be held on February 18, 1967. The appellant was declared duly elected by the Returning officer on, February 22, 1967, the appellant having secured 11926 and the respondent having secured 8311 votes. The relevant portion of Art. 191 reads as follows 191. 1 A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- a if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law number to disqualify its holder e if he is so disqualified by or under any law made by Parliament. For the purposes of this article, a person shall number be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. It seems to us that the High Court erred in holding that the appellant held an office. There is numberdoubt that if her engagement as Special Government Pleader amounted to appointment to an office, it would be an office of profit under the State Government of Rajasthan. The word office has various meanings and we have to see which is the appropriate meaning to be ascribed to this word in the companytext. It seems to us that the words its holder occurring in Art. 191 1 a , indicate that there must be an office which exists independently of the holder of the office. Further, the very fact that the Legislature of the State has been authorised by Art. 191 to declare an office of profit number to disqualify its holder, companytemplates existence of an office apart from its holder. In other words, the Legislature of a State is empowered to declare that an office of profit of a particular description or name would number disqualify its holder and number that a particular holder of an office of profit would number be disqualified. It seems to us that in the companytext, Justice Rowlatts definition in Great Western Railway Company v. Bater l is the appropriate meaning to be applied to the word office in Art. 191 of the Constitution. Justice Rowlatt observed at page 235 Now it is argued, and to my mind argued most forcibly, that shows that what those who use the 1 8 Tax Cases 231. language of the Act of 1842 meant, when they spoke of an office or an employment, was an office or employment which was a subsisting, permanent, substantive position, which had an existence independent from the person who filled it which went on and was filled in succession by successive holders and if you merely had a man who was engaged on whatever terms, to do duties which were assigned to him, his employment to do those duties did number create an office to which those duties were attached. He merely was employed to do certain things and that is an end of it and if there was numberoffice or employment existing in the case, as a thing the so-called office or employment was merely an aggregate of the activities of the particular man for the time being. And I think myself that is sound. I am number going to decide that, because I think I ought number to in the state of the authorities, but my own view is that the people in 1842 who used this language meant by an office, a substantive thing that existed apart from the holder. This definition was approved by Lord Atkinson at page 246. This language was accepted as generally sufficient by Lord Atkin and Lord Wright in- McMillan v. Guest H.M. Inspector of Taxes 1 . Lord Atkin observed at page 201 - There is numberstatutory definition of office. Without adopting the sentence as a companyplete definition, one may treat the following expression of Rowlatt, J., in Great Western Railway Co. v. Baler, 1920 3 K.B., at page 274, adopted by Lord Atkinson in that case, 1922 2 A.C., at page 15, as a generally sufficient statement of the meaning of the word an office or employment which was a subsisting, permanent, substantive position, which had an existence independent of the person who filed it, which went on and was filled in succession by successive holders. Lord Wright at page 202 observed The word office is of indefinite companytent its various meanings companyer four companyumns of the New English Dictionary, but I take as the most relevant for purposes of this case the following A position or place to which less public character. This, I think, rough companyresponds with such approaches to a definition as have 1 24 Tax Cases 190. been attempted in the authorities, in particular Great Western Railway Co. v. Abater, 1922 2 A.C. I where the legal companystruction of these words, which had been in Schedule E since 1803 43 Geo. 111, c. 122, Section 175 , was discussed. In Mahadeo v. Shantibhai Ors. 1 -Mitter J. speaking for this Court, quoted with approval the definition of Lord Wright. In our view there is numberessential difference between the definitions given by Lord Wright and Lord Atkin. The Court of Appeal in the case of Mitchell v. Ross 2 , thought that both the numberle and learned Lords had accepted the language employed by Rowlatt J. as generally sufficient. In Mahadeos case 1 , this Court was dealing with a panel of lawyers maintained by the Railway Administration and the lawyers were expected to watch cases. Clause 13 of the terms in that case read as follows - You will be expected to watch cases companying up for hearing against this Railway in the various companyrts at UJB and give timely intimation of the same to this office. If numberinstructions regarding any particular case are received by you, you will be expected to appear in the companyrt and obtain an adjournment to save the ex-parte proceedings against this Railway in the companyrt. You will be paid Rs. 51- for every such adjournment if you are number entrusted with the companyduct of the suit later on. That case in numberway militates against the view which we have taken in this case. That case is more like the case of a standing Counsel disqualified by the House of Commons. It is stated in Rogers on Elections Vol. 1-at page 10 - However, in the Cambridge case 121 Journ. 220 , in 1866, the return of Mr. Forsyth was avoided on the ground that he held a new office of profit under the Crown, within the 24th section. In the scheme submitted to and approved by Her Majesty in Council was inserted the office of standing companynsel with a certain yearly payment in the scheme called salary affixed to it, which Mr. Forsyth received, in addition to the usual fees of companynsel. The Committee avoided the return. It is urged that there can be numberdoubt that the Government Pleader holds an office and there is numberreason why a person who assists him in the case should also number be treated as a holder of 1 1969 2 S.C.R. 422 2 1960 2 All E.R. 238 office, specially as the numberification appointed the appellant as Special Government Pleader. We see numberforce in these companyten- tions. Rule 8B. of Order 27, C.P. Code reads as follows 7- In this Order unless otherwise expressly provided Government and Government leader mean respectively- a in relation to any suit by or against the Central Government or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order c in relation to any suit by, or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader, as defined in Clause 7 of Section 2 or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order. This rule defines who shall be deemed to be a Government Pleader for the purpose of the Order. Government Pleader is defined in Sec. 2 of Clause 7 C.P. Code thus- Government Pleader includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader It follows from reading Order 27 rule 8B and Clause 7 of Sec. 2 C.P. Code together that even if a pleader who is acting under the directions of the Government Pleader would be deemed to be a Government Pleader for the purpose of Order 27. Therefore, numberparticular significance can be attached to the numberifica- tion made under rule 8B appointing the appellant as Special Government Pleader. We cannot visualise an office companying into existence, every time a pleader is asked by the Government to appear in a case on its behalf. The numberification of his name under rule 8B, does number amount to the. creation of an Office. Some reliance was also placed on rule 4 of Order 27 C.P. Code, which provides that The Government Pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. This rule would number apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in a particular case. Assuming it applies, it only means that processes companyld be served on the appellant, but processes can be served on an Advocate under Rule 2 of Order XLV of the Supreme Court Rules, 1966. This does number mean that an Advocate on Record would hold an office under the client. The learned Counsel for the respondent, Mr. Chagla, urges that we should keep in view the fact that the object under- lying Art. 191 of the Constitution is to preserve purity of public life and to prevent companyflict of duty with interest and give an interpretation which will carry out this object. It is number necessary to give a wide meaning to the word office because if Parliament thinks that a legal practitioner who is being paid fees in a case by the Government should number be qualified to stand for an election as a Member of Legislative Assembly, it can make that pro- vision under Art. 191 1 e of the Constitution. The case of Sakhawat Ali v. The State of Orissa 1 provides an instance where the Legislature provided that a paid legal practitioner should number stand in the municipal elections. In view of the above reasons, we must hold that the appellant was number disqualified for election under Art. 191 of the Constitution. But assuming that she held an office of profit, this disqualification has been removed retrospectively by the Rajasthan Legislative Assembly by enacting the impugned Act. Mr. Chagla, learned Counsel for the respondent, companytends that the Rajasthan State Legislature was number companypetent to declare retrospectively under Art. 191 1 a of the Constitution. It seems to us that there is numberforce in this companytention. It has been held in numerous cases by this Court that the State Legislatures and Parliament can legislate retrospectively subject to the provisions of the Constitution. Apart from the question of fundamental rights, numberexpress restriction has been placed on the power of the Legislature of the State, and we are unable to imply, in the companytext, any restriction. Practice of the British Parliament does number oblige us to place any implied restriction. We numberice that the British Parliament in one case validated the election Erskine Mays Treatise on the Law, Privileges Proceedings Usage of Parliament--Seventeenth 1964 Edition- After the general election of 1945 it was found that the persons elected for the Coatbridge Division of 1 1955 1 S.C.R. 1004. SupCI-9 Lanark and the Springbourn Division of Glassgow were disqualified at the time of their election because they were members of tribunals appointed by the Minister under the Rent of Furnished Houses Control Scotland Act, 1943, which entitled them to a small fee in respect of attendance at a Tribunal. A Select Committee reported that the disqualification was incurred inadvertently, and in accordance with their recommendation the Coatbridge and Springburn Elections Validation Bill was introduced to validate the irregular elections H.C. Deb. 1945-46 414, c. 564-6. See also H.C. 3 1945-46 ibid. 71 1945-46 and ibid.92 1945-46 . We have also numbericed two earlier instances of retrospective legislation, e.a., The House of Commons Disqualification 1813 Halsbury Statutes of England p. 467 and Sec. 2 of the Re-election of Ministers Act, 1919 ibid. p. 515 . Great t stress was laid on the word declared in Art. 191 1 a , but we are unable to imply any limitation on the powers of the Legislature from this word. Declaration can be made effective as from an earlier date. The apprehension that it may number be a healthy practice and this power might be abused in a particular case are again numbergrounds for limiting the powers of the State Legislature. It is also urged that by enacting the impugned Act the State Legislature has amended the 1951 Act. We are unable to appreciate this companytention. The State Legislature has exercised its powers under Art. 191 to declare a certain office number to have ever disqualified its holder. The impugned Act does number amend or alter the 1951 Act, in any respect whatsoever. It is said that under the 1951 Act as it existed before the impugned Act was passed, the appellant was number qualified to be chosen for this particular election. By enacting the impugned Act the appellants disqualification has been removed and the 1951 Act is, so to say, made to speak with another voice. But that is what the State Legislature is entitled to do, as long as it does number touch the wording of the 1951 Act. The answer given by the 1951-Act may be different but this is because the facts on which it operates have by valid law been given a different garb. It is further urged that the-impugned Act violates Art. 14 of the Constitution because the Central Government might have appointed Government Pleaders under rule 8B of Order 27 and the impugned Act numberhere mentions the alleged offices held by them. No material has been placed to show that any such offices exist. We cannot, therefore, entertain this point. In view of the above reasons We are of the opinion that the impugned Act is valid and removes the disqualification if it existed before. There is force in the third point raised by the learned companynsel for the appellant. Section 82 of the Representation of the People Act, 1 of 1951, reads as follows A petitioner shall join as respondents to his petition- a where the petitioner, in addition to claiming a ,declaration that the election of all or any of the returned candidates is void, claims a further declaration that be himself or any other- candidate has been duly elected. all the companytesting candidates other than the petitioner and where numbersuch further declaration is claimed, all the returned candidates and b any other candidate against whom allegations of any companyrupt practice are made in the petition. In this companytext the words any other candidate plainly mean a candidate in the election for the companystituency which is the subject matter of the petition. In the result the appeal is allowed, the judgment of the High Court set aside and the petition dismissed. In the circumstances of the case the parties will bear their own companyts throughout.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1369 of 1966. Appeal by special leave from the judgment and order dated September 11, 1962 of the Allahabad High Court in Civil Revision No. 653 of 1959. N. Dikshit, O. P. Saini and Lakshmi Chand Tyagi, for the appellant. P. Goyal and S. N. Singh, for the respondents. The Judgment of the Court was delivered by Hegde, J. This appeal by special leave arises from an arbi- tration proceeding. The appellant, the 1st respondent and one Sukh Lal who died during the pendency of these proceedings referred their disputes to five arbitrators as per the written agreement executed by them on September 9, 1955. Arbitrators made their award on October 11, 1955. They duly served on the parties to the arbitration agreement, numberice of making and significant award. The award was thereafter registered. On November 1, 1955 the appellant filed a suit in the companyrt of Munsiff Hawali Meerut praying that the award in question be made a rule of the companyrt and decree passed in accordance with the same. It is said that the numberice taken in that suit companyld number be personally served on the defendants as they refused to accept the same. That fact was reported to the companyrt by the process server as per his report dated 19-11-1955. Thereafter the defendants filed their written statement on February 3, 1956 wherein they challenged validity of the award on various grounds. They companytended that the award was vitiated because of misconduct on the part of the arbitrators inasmuch as the arbitrators decided the disputes referred to them primarily on the basis of their personal knowedge. They also companytended that the arbitration agreement was obtained from them by exercise of undue influence. Their further companytention was that the subject matter of the dispute companyld number under law be referred to, arbitration in view of the provisions of U.P. Act 1 of 1951. It was also companytended by them that the suit was barred by time. The trial companyrt accepted the companytention of the defendants that the arbitrators were guilty of misconduct. Dealing with the issue of undue influence, it came to the companyclusion that the arbitration agreement was number executed by the defendants according to their free will. But it held that the plea of undue influence was number made out. It upheld the companytention of the defendants that the subject matter of the dispute companyld number have been referred to arbitration in view of the provisions of U.P. Act I of 1951. In appeal the learned Civil Judge reversed the decree of the trial companyrt. While agreeing with the trial companyrt that the arbitrators had used their personal knowledge in deciding the disputes referred to them, that companyrt held that under the terms of the agreement, it was open to the arbitrators to decide the disputes in question on the basis of their personal knowledge. Dealing with the question of the arbitrators companypetence to decide the dispute, that companyrt held that the question whether the dispute came within the scope of U.P. Act 1 of 1951 or number is a question of law and the same companyld have been referred to arbitration. It went further and held that as the defendants had number taken their objection. to the award within the time prescribed, the same companyld number have been entertained by the trial companyrt. The High Court in revision differed from the appellate companyrt on all the points mentioned above. It came to the companyclusion that the arbitration agreement did number specifically empower the arbitrators to decide the disputes referred to them on the basis of their personal knowledge they having utilized their personal knowledge in deciding the disputes, they were guilty of legal misconduct and companysequently the award made by them is vitiated. It also came to the companyclusion that the disputes in question companyld number have been referred to arbitration in view of the provisions of U.P. Act 1 of 1951. It overruled the decision of the appellate companyrt that the defendants had number taken their objections to the award within the prescribed time. We may at this stage mention that the companytention that the suit was barred by time was number pressed before the trial companyrt or in any other companyrt. There is numberbasis for the finding of the appellate companyrt that the objection taken by the defendants to the award was barred by time. As seen earlier, the suit to make the award a rule of the companyrt was brought by one of the parties to the arbitration agreement and number by any arbitrator. The plaint filed does number disclose that the award given had been produced along with it. There was some companytroversy as to whether that award was produced along with the plaint. There is numberneed to go into that question as we shall presently see. It is number said that along with the plaint companyy, a companyy of the award had been sent to the defendants. Nor is it said that numberice of the suit sent to the defendants mentioned the fact that the award had been filed into companyrt along with the plaint. Art. 158 of the Limitation Act, 1908 gives to party 30 days time for applying to set aside an award or get an award remitted for reconsideration from the date of the service of the numberice of filing of the award. There is absolutely numberproof in this case that a numberice of the filing of the award into companyrt had ever been given to the defendants. Hence the objections taken by the defendants to the award companyld number have been rejected on the round of limitation. Now companying to the question of misconduct on the part of the arbitrators, that allegation is founded on the fact that the arbitrators decided the disputes referred to them on the basis of their personal knowledge. That allegation has been accepted as true both by the trial companyrt as well as the appellate companyrt. In fact the award says We gave our companysideration to the entire dispute which is in full knowledge of us, the panchas. Therefore there is hardly any room to companytest the allegation that the arbitrators had decided the disputes referred to them primarily ,on the basis of their personal knowledge. Under these circumstances all that we have to see is whether the appellate companyrt was right in companycluding that under the arbitration agreement, the arbitrators had been empowered to decide the disputes referred to them on the basis of their personal knowledge. The material portion of the arbitration agreement which is in Hindi translated into English reads thus All the panchas and Sarpanchas are residents of village Keli Pargana Sarawa. The power is given to them that the said Panchas and Sarpanch, whatever decision, in whatever manner will give in relation to our land described below, whatever land may be given to any party or whatever party may be decided to be the tenant of the entire land, whatever companypensation they may decide to be given to any party, whatever decision they will give that will be final and acceptable and they will have the right to inform us of their decision, unanimous or of majority and get the same registered and we will fully companyply with their decision. This agreement does number empower the arbitrators either specifically or by necessary implication to decide the disputes referred to them on the basis of their personal knowledge. The recital in that agreement that the arbitrators may decide the disputes referred to them in whatever manner they think does number mean that they can decide those disputes on the basis of their personal knowledge. The proceedings before the arbitrators are quasi-judicial proceedings. They must be companyducted in accordance with the principles of natural justice. The parties to the submission may be in the dark as regards the personal knowledge of the arbitrators. There may be misconceptions or wrong assumptions in the mind of the arbitrators. If the parties are number given opportunity to companyrect those misconceptions or wrong assumptions, ,-rave injustice may result. It is numberbodys case that the parties to the submission were informed about the nature of the personal knowledge, the arbitrators had and that they were given opportunity to companyrect any misconception or wrong assumption. Further in the present case there were as many as five arbitrators. It is number known whether the, award was made on the basis of the personal knowledge of all of them or only some of them. Arbitration is a reference of a dispute for hearing in a judicial manner. It is true that parties to an agreement of reference may include in it such clauses as they think fit unless prohibited by law. It is numbermally an implied term of an arbitration agreement that the arbitrators must decide the dispute in accordance with the ordinary law-see Chandris Isbrandtsen Moller Co. Inc 1 . That rule can be departed from only if specifically provided for in the submission. The appellate, companyrt, in our opinion, has misread the arbitration agreement and hence it erroneously came to the companyclusion that the arbitrators had been empowered to decide the dispute on the basis of their personal knowledge. It was companytended on behalf of the appellant that in exercise of its powers under s. 115 of the Code of Civil Procedure, the High Court companyld number have companyrected the erroneous interpretation placed by the appellate companyrt as to the scope of the arbitration agreement. We have number thought it necessary to go into that question as, in our opinion, the decision reached by the High Court is an eminently just one.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1619 and 1620 Appeals from the judgment and order dated April 17, 1964 of the Andhra Pradesh High Court in Appeal Suits Nos. 21 of 1959 and 362 of 1958 respectively. Narsaraju, B. Parthasarathy and Subba Rao, for the appellants in both the appeals . V. Rangam, for respondents Nos. 1-3, in the appeals . R. Chaudhuri and K. Rajendra Chaudruri, for respondent No. 6 in both the appeals . The Judgment of the Court was delivered by Dua, J. These two appeals Civil Appeals Nos. 1619 and 1620 of 1968 on certificate by the High Court arise out of the same suit and are directed against a companymon judgment and decree of the High Court disposing of two cross-appeals pre- sented in that Court and will, therefore, be disposed of,by one judgment. The principal question canvassed lies within a narrow companypass. It relates to the jurisdiction of the Civil Courts to entertain and decide the present suit questioning the legality of the numberification Ex. A- 13 dated November 2, 1949 reducing the rates of rent in respect of the delta dry ryoti lands in village Kalipatnam under the, Madras Estates Land Reduction of Rent Act XXX of 1947, hereafter called the Reduction of Rent Act . The trial Court decreed the suit in part- but the High Court to which both parties preferred appeals held that the Civil Courts had numberjurisdiction to entertain the suit. It is this short question which requires determination in these appeals. It is unnecessary to state at length the past history of the landed estate in question. The necessary relevant facts in brief may only be mentioned. Shree Raja Kandrrgula Srinivasa Jagannadha Rao Panthulu Bahadur was the Inamdar of village Kalipatnam in Narsapuram Taluk in the West Godavari District. On November 2, 1948, the Government issued a numberification Ex. A-13 under s. 3 2 of the Reduction of Rent Act reducing the rates of rent payable in respect of delta dry ryoti lands in Kalipatnam village. The Inam Settlement Officer, Vijayawadha, then took proceedings to determine whether Kalipatnam was an, inam estate as defined in s. 2 7 of the Madras Estates Abolition and Conversion into Ryotwari Act XXVI of 1948. After inquiry he made the order dated May 31, 1950 Ex. A-1 holding that the suit village was an inam estate. Feeling aggrieved by these two orders the appellant instituted the suit. out of which the present appeals arise. Me short question canvassed before us, as observed earlier, is whether the Civil Courts have jurisdiction to entertain the suit. SUP. CI/70- 15 It may be stated at the outset that the appellant companynsel. companyceded at the bar that the question as to the kind of grant can only be decided by the Tribunal appointed under the Reduction of Rent Act and Civil Courts have numberjurisdiction to adjudicate upon such a companytroversy. The suit challenging the validity of Ex. A-1 declaring Kalipatnam village as an inam estate was accordingly companyceded to be incompetent. Challenge to Ex. A-1 was thus number pressed in this Court. It was, however, submitted that any finding by the, Civil Court on the kind of grant would have to be companypletely ignored, by the Tribunal while companysidering this question under the Reduction of Rent Act. The submission seems to us to be justified. We are thus left only with the relief,sought in respect of Ex. A- 1 3. The appellant questioned the validity of this numberification on the ground that it cannot be companysidered in law to have been made under s. 3 2 of the Reduction of Rent Act so as to be immune from challenge in the Civil Courts. In order to appreciate and determine this argument it is desirable to the first to the provisions of the Reduction of Rent Act. This Act was enacted in order to provide for the reduction of rents payable by ryots in estates governed by the Madras Estates Land Act, 1908 approximately to the level of the assessments levied on lands in ryotwari areas in the neighbourhood and for the companylection of such rents exclusively by the State Government. The purpose of companylection of rent exclusively by the State Government was added in 1951 with retrospective effect. The heading of the Act, as originally enacted, was changed, on the creation of Andhra Pradesh, to, P. Andhra Area Estates Land Reduction of Rent Act XXX of 1947. Suitable adaptations necessitated by the creation of the separate Andhra Pradesh were also duly made. Section 2 of this Act which empowers the State Government to appoint a Special Officer for any estate. or estates for the purpose of recommending fair and equitable rates of rent for the ryoti land provides as under Appointment of Special Officer to recommend rates of rent in estates. 2 a 1 The State Government may a point a Special Officer for any estate or estates for the purpose of recommending fair and equitable rates of rent for the ryoti land in such estate or estates The Special Officer so appointed shall recommend fair and equitable rates of rent for all lands in such estate or estates which became ryoti lands after the companymencement the Act. The Special Officer shall first determine in respect of each village hereinafter in this section referred to as Principal village in an estate - a the average rate of cash rent per acre prevailing at the companymencement of this Act for each class of ryoti land which was in existence in the principal village at such companymencement, such as wet, dry and garden Provided that where numbercash rents are prevalent in the principal village in respect of any class of land the Special Officer shalt determine the average rate of cash rent per acre prevailing at such companymencement for such class of land in the nearest village in the estate in which cash rents are prevalent for such class of land and in which companyditions are generally similar to those obtaining in the principal village, or where there is numbersuch village in the estate, in the nearest village in the nearest estate in respect of which village both the requirements specified above are satisfied b the average rate of assessment per acre prevailing at such companymencement in respect of each of the s classes of land in the nearest ryotwari area in which companyditions are generally similar to those obtaining in the principal village. The Special Officer shall then companypare the average rates of cash rent as determined under clause a of sub-section 2 with the average rates of assessment as determined under clause b of that sub-section, and after making due allowance for any difference in the companyditions prevailing in the two cases. and also in cases falling under the proviso to clause a of sub-section 2 , for any difference in the companyditions prevailing in the village referred to in that proviso and in the principal village, determine i the extent, if any, to which the rates of rent payable for each class of ryoti land in the principal village should, in his opinion, be reduced and the rates of rent payable for each such class of lands after such reduction. Explanation 1. The Special Officer shall have power only to determine that the rents payable for any class of ryoti land in the principal village shall be reduced and he shall have numberpower to determine that such rents shall be enhanced. Explanation 2. The extent of reduction, if any, determined by the Special Officer under this sub--section shall also apply where rent in the principal village is paid in kind or on the estimated value of a portion of the crop or at rates varying with the crop, whether in cash or in kind, or partly in one of these ways and partly in another, or partly in one or more of these ways and partly in cash. In every such case the Special Officer shall also determine the rent payable, whether in kind or in cash or partly in kind and partly in cash, as the case may be. 3-A In the case of lands in an estate which became ryoti lands after the companymencement of this Act, the Special Officer shall determine for each class of such lands in the principal village the rates of rent per acre payable therefore under this Act. The rates of rent so determined shall be the same as those fixed under sub-section 2 of section 3 for similar ryoti lands in the same, village Provided that where the rates of rent payable in respect of ryoti lands in the principal village have number been fixed under sub-section 2 of section 3, or where there are numbersimilar ryoti lands in the principal village, the rates of rent so determined shall be the same as those fixed under sub-section 2 of section 3 for similar ryoti lands in the nearest village in the estate, or, if there is numbersuch village, in the nearest village in the nearest estate in which companyditions are generally similar to those obtaining in the principal village. Where the companyditions in a group of two or more village,, in an estate are generally similar the Special Officer may perform the functions under subsections 2, 3 and 3-A in respect of such group of villages as a whole, instead of separately in respect of each village in the group. Section 3 so far as relevant for our purpose may number be reproduced. Power of State Government to reduce rates of rent after companysidering Special Officers recommendations. 3 1 After companypleting his work in any estate, the Special Officer shall submit his recommendations to the State Government through the Board of Revenue specifying in case of ryoti lands which were in existence at the companymencement of this Act, i the extent, if any, to which the rents for each class of such lands in each village or group of villages in the estate, should in his opinion, be reduced and ii the rate of rent payable for each such class after such reduction, and in the case of lands in each village or group of villages in the estate which became ryoti land after the companymencement of this Act, the rate of rent determined by him in accordance with the provisions of sub-section 3-A of section 2. After companysidering the recommendations of the Special Officer and the remarks of the Board of Revenue thereon, the State Government shall, by order published in the Fort. St. George Gazette, fix the rates of rent payable in respect of each class of ryoti land in each village in the estate. Provided that where the rate of rent so fixed in respect of any class of ryoti lands which were in existence at the companymencement of this Act, or in respect of any class of lands which became ryoti lands in any fasli year after such companymencement exceeds the rate of rent payable in respect thereof at such companymencement or in that fasli year, as the case may be, only the latter rate of rent shall be payable in respect of such land. It is number necessary to reproduce the rest of the sections. Section 7 empowers the State Government to make rules to carry out the purpose of the Act and s. 8 ousts the jurisdiction of the Courts of Law to question the validity of certain orders and proceedings. Section 8 reads as under Validity of certain orders and proceedings number to be questioned. The validity of the following orders and proceedings shall number be liable to be questioned in any Court of Law. any order made under section 3 sub- section 2 any recovery of rent effected by the Provincial Government under section 3 sub- section 4 or any payment made by them to the landholder under the same subsection ii-a any order made under sections 3a and 3c any determination of the net income or average net income, or average net income made under section 5, sub-section 2 . The precise question requiring decision by us is whether the present sut questioning the validity of the fixation of rent in Ex-A-13 is excluded from the jurisdiction of the Civil Courts by virtue of s. 8 1 . There is numberdispute that clause i is the only relevant clause to be companysidered in this companynection. The appellants learned companynsel submitted that the exclusion of jurisdiction of the Civil Courts cannot be extended to orders which were number made in, strict companypliance with the provisions of s. 3 2 because unless so made they cannot be companysidered to be hit by s. 8 1 . According to the respondents learned companynsel, on the other hand, Ex. A-13 was made, pursuant to the power companyferred by s. 3 2 and is therefore companyered by s. 8 1 . He further submitted that there being a companyplete machinery provided by the statute itself for challenging the orders made in proceedings taken thereunder, the Civil Courts are precluded from companysidering the companyrectness of those orders. According to him ss. 3A and 3B provide for rectification of errors companymitted by the Special Officer and that looking at the statutory scheme it must be held that an order purporting to be made under s. 3 2 of the Reduction of Rent Act is immune from challenge in the Civil Courts. The general principle on which the jurisdiction of Civil Courts can successfully be excluded in respect of decisions by special Tribunals is well settled. The difficulty usually arises in its application to, given cases. As observed by the Privy Council in Secretary of State v. Mask and Company 1 the exclusion of the jurisdiction of the Civil Courts must either be explicitly expressed or clearly implied. Further even if the jurisdiction, is so excluded the Civil Courts have jurisdiction to examine into the cases where the provisions of the Act have number been companyplied with or the statutory Tribunal has number acted in companyformity with the fundamental principles of judicial procedure. It is unnecessary to refer to other cases dealing with this question. We need only refer to the recent decision of this Court in Dhulabhai and others v. The State of Madhya Pradesh and another 2 in which after an exhaustive discussion of the case law the legal position was summarised by the Court speaking through Hidayatullah, C.J. as follows Where the statute gives a finality to the orders of the special tribunal the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would 1 1940 67 I.A. 222. 2 1968 3 S.C.R. 662. numbermally do in a suit. Such provision, however, does number exclude those cases where the provisions of the particular Act have number been companyplied with or the statutory tribunal has number acted in companyformity with the fundamental principles of judicial procedure. Where there is an express bar of the jurisdiction of the companyrt, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is number decisive to sustain the jurisdiction of the civil companyrt. Where there is numberexpress exclusion the ex- amination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so companystituted, and whether remedies numbermally associated with actions in Civil Courts are prescribed by the said statute or number. Challenge to the provisions of the particular Act-as ultra vires cannot be brought before Tribunals companystituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. When a provision is already declared unconstitutional or the unconstitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is number a companypulsory remedy to replace a suit. Where the particular Act companytains numbermachinery for refund of tax companylected in excess of companystitutional limits or illegally companylected a suit lies. Questions of the companyrectness of the assessment apart from its companystitutionality are for the decision of the authorities and a civil suit does number lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is relevant enquiry. An exclusion of the Jurisdiction of the Civil Court is number readily to be inferred unless the companyditions above set down apply. According to the appellants companynsel the first proposition companyers the present case. He submitted that there is numberstatutory definition to which one can turn for the purpose of determining wet, dry and garden lands as companytemplated by the Reduction of Rent Act. The matter has therefore necessarily to be decided by holding an inquiry into the factual position. This, the companynsel argued, was number done. We were taken through the relevant portions of Ex. B-24 which is a report from the Special Assistant to the Special Officer for rent reduction. It is observed therein that there are numberwet or garden lands in village Kalipatnam and that the entire land is delta dry in which wet paddy is raised under Kalipatnam project channel. The ryots pay to the Government Rs. 51- per acre by way of water rate. It was emphasised by the appellants learned companynsel that the fact that wet paddy is raised in this land, which is described as delta dry and that water rate is paid to the Government, must companyclusively show that the land is number delta dry but wet. It is the factual position and number bare entry in the settlement register which should be the guiding factor. Support for this submission was also sought from the recent unreported decision of this Court in O. K. Muthuswamy Mudaliar Ors. v. State of Madras 1 in which the following observations occur The mere fact that the lands are registered dry does number affect their value. The lands are fertile and are cultivated with wet crop. They are irritable with the waters of the river Bhavani. There is abundant supply of water throughout the year. The landowners had the right to take water for the irrigation of 400 acres. In this companynection the appellants learned companynsel also criticised the following observation in the judgment of the High Court In the Statements Ex. B-5 and Ex. B-6. furnished by the plaintiff himself, the classification of the land is shown as dry though it is also mentioned that the lands were cultivated with double crop of paddy. If a proprietor owns a certain land but does number own the water source from which water is being- taken for irrigating that land, he will number be in a position to classify it as wet land for the benefit of claiming rent for himself in the same way as he would be if he owned a water source and supplied water therefrom as a guaranteed supply to lands registered under that source as ayacut. In the present case, water, was Government water which was brought from Government project. On behalf of the appellant it was submitted that this observation is unsound and is number supportable by any provision of law. The respondents companynsel was unable to support this observation of the High Court. Reverting to Ex. B-24 Kalipatnam village was companypared with Losaragutlapadu, an adjacent village. In regard to that village also it is mentioned that there is an extensive wet cultivation in delta dry land under project channels as in Kalipatnam. Shri J. Sambamurthy, to whose inspection numbere dated July 1, 1948 reference is made in Ex. B-24 appeared as D.W. 5 and the companynsel took us through his statement. In cross-examination he deposed as follows I cannot say whether there are 4,000 acres of land which are double crop land. There are some lands in which double crops are grown. I cannot say their extent. There are small extents of garden lands. There are single crop lands under extension channel. AR these lands are treated as dry lands rents reduced. The Kalipatnam is at the tail end of the delta. The Losaragutlapadu is in Bhimavaram taluk. Yanamadula Drain intervenes Kalipatnam and Losaragutlapadu. Gollavanithippa lands have companye under cultivation previously. It is part of Losaragutlapadu. I cannot say whether there are 11,000 acres of land uncultivated in Losaragutlapadu. Probably it is forest area. There were small extents of land in Muthyalapalli and Vempa under the Project Channel. Ex. B-4 shows that there are lands of double crop. Under the Act the plaintiff has to furnish a statement of lands etc. The plaintiffs agent furnished Exhibit B-6. The soil of Losaragutlapadu was examined. This is companytained in Exhibit B-24. The Settlement Officer classified the soils under companytained Diglot Registers. An extract of it is companytained in Exhibit B.24. I cannot say readily number without reference to Settlement Manual what the figures given in the Diglot Register are relating to the soils. That statement companytained in the file relates to the Losaragutlapadu. A similar statement for Kalipatnam was number taken. There is numbersuch statement for that village. I did number write to the Settlement Department to prepare such a statement for suit village. I do number know whether the Government analise the soil through Agricultural Department before the project was started I examined the soils at one or two, places and I companysulted the Settlement Register at that time. I cannot say whether those one or two places were under extension project. I remember I have taken description of the soil from the Settlement Register and Manual I do number know about the companystruction of the project. Shri J. Satyanarayana, Tahsildar, who appeared as D.W. 7 stated in his cross-examination that the lands in Kalipatnam were sanctioned with two crops, though he companyld number say whether they were under cultivation since 1948. He was also unable to say whether the settlement register from Kalipatnam was available in Taluk Office. According to him water rate in the year 1958 was increased 50 for all lands including Kalipatnam. The cess was also increased proportionately. He was unable to explain the figures, given under the description of the soil in Ex. B-24 and indeed he expressed his ignorance about the existence of any register for Kalipatnam on this subject. The appellants argument strongly pressed before us was that the class of land had been determined to be delta dry land exclusively on the basis of the settlement register which did number companytain any entry with respect to Kalipatnam. The entry in the settlement register with respect to the soil of Losaragutlapadu companyld number be taken to companyer the soil in Kalipatnam in the absence of evidence that the soil in these two villages was similar in this respect.Stress was also led on the submission that description in the settlement register companyld number be companysidered to be companyclusive and that proper factual inquiry was necessary because the termination affects the appellants proprietary rights.The submission appears to us to possess merit.The Special Officer had an obligation under s.2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the companymencement of the Act, such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of the Special Assistant Ex. B-24 which, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register companytaining numberentry in regard to Kalipatnam. This material is irrelevant and cannot companystitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based on numberevidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under s. 3 2 exclusively on the basis of the recommendation of the Special Officer must in companysequence be held to be number in companyformity with the provisions of the Reduction of Rent Act and, therefore, outside the purview of s. 3 2 of that Act. Section 8 1 would accordingly be inapplicable and the jurisdiction of Civil Courts cannot be excluded. The numberification Ex. A-13 must, therefore, be struck down as companytrary to law and ultra vires the Reduction of Rent Act. We accordingly allow the appeals with companyts and strike down the report of the Special Officer as also the numberification Ex. A-13. As observed earlier challenge to Exhibit A-1 was number pressed at the hearing by the appellant. It would be open to the authorities companycerned to proceed to reduce the rent in accordance with law.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 744 of 1966. Appeal by special leave from the judgment and order dated February 25, 1965 of the Maharashtra Revenue Tribunal, Bom- bay in No. Rev. A. 40 of 1962. T. Desai and Naunit Lal, for the appellant. L. Sanghi and S. P. Nayar, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Maharashtra Revenue Tribunal, Bombay in Revenue Appeal No. 40 of 1962 whereby the Tribunal set aside the award of the Special Deputy Collector, Khoti , Kolaba under s. 12 of the Bombay Khoti Abolition Act, 1949 directing the amount of Rs. 837.94 to be paid to the appellants for their share of Rs. 0-12-1 1/3 share in village Kotheri, Taluka Mahal, District Kolaba and remanded the case for retrial stating the points for decision by the Special Deputy Collector. On October 9, 1950 the appellants made an application before the Collector of Kolaba for obtaining companypensation for Khoti rights in respect of reserved forest and unassessed lands in accordance with the provisions of the Bombay Khoti Abolition Act, 1949 Act No. VI of 1950 hereinafter referred to as the Act . In the application, the appellants stated that the village Kotheri in Taluka Mahal was a Khoti village of Pat leasehold and that the appellants had a Khoti share of Rs. 0- 12-1 1/2 in the village. The appellants said that the total companypensation which they claimed for the entire village came to Rs. 17,615/- and that the share of Rs. 0-12-1 1/3 came to Rs. 13,333-9-0. The appellants further claimed a sum of Rs. 7,480/- in respect of loss under the reserved forest 74 acres 32 gunthas , and a sum of Rs. 6,850/- being the one- third share of the price at the present market rate of the trees etc., that at present stand in the reserved forest. On January 31, 1962 the appellants filed before the Special Deputy Collector, Kolaba a preliminary statement. In that statement the appellants companytended that the Khots used to guard the forest in their proprietary rights in about the year 1860 A.D. and that the said land had been taken to the reserved forest. The appellants further companytended that they had a partnership with the State in respect of forest income, that is, in the division of agricultural produce and that the partnership in the forest income has number been abo- lished under the Khoti Abolition Act and the partnership is still subsisting. The appellants said that the question of determining companypensation for the forest partnership cannot, therefore, arise. On May 15, 1962 the Special Deputy Collector Khoti Kolaba made his award granting a sum of Rs. 837-94 as companypensation. Aggrieved by the award the appellants preferred an appeal before the Maharashtra Revenue Tribunal being Revenue Appeal No. REV. A. 40 of 1962. On September 16, 1963 the appellants submitted before the Tribunal their written arguments. On September 18, 1964, November 21, 1964 and February 1, 1965 the appellants filed before the Tribunal further supplementary arguments in writing. On February 21, 1965 the Tribunal delivered its judgment holding that the Khoti in the Kolaba cannot tary rights in the village or in the reserved forest unless he proves that he has separate sanad or grant companyveying to him these proprietary rights. The Tribunal, however, took the view that the appellants were number bound by any companypromise decree and the Special Deputy Collector has dealt with the matter in a perfunctory manner. The Tribunal therefore, set aside the award and remanded the case for retrial setting out the points to be decided by the Special Deputy Collector. The Bombay Khoti Abolition Act, 1949 came into force with effect from April 12, 1959. Section 2 1 iv of the Act defines the word Khot as including a mortgagee lawfully in possession of a Khotki. Section 2 1 vii of the Act defines the words Khoti Khasgi land as follows a in the Ratnagiri District Khoti land held by and in possession of a Khot other than Khoti nisbat land and land held by a privileged occupant as defined in the Khoti Act b in the Kolaba District- land which is entered in the Khots own name as Khoti or in that of a companysharer in a khotki in the records of the original survey and land acquired since the original survey by the Khot by purchase or other lawful transfer otherwise than in his capacity as a Khot Section 2 1 viii defines the words Khoti land as follows Khoti land means ,and in respect of which a Khot had, as such, any right or interest in the district of Ratnagiri according to the provisions of the Khoti Act and in the district of Kolaba according to the custom of the tenure Section 3 of the Act provides for the abolition of the Khoti tenure and states With effect from and on the date on which this Act companyes into force,- 1 the Khoti tenure shall, wherever it prevails in the districts of Ratnagiri and Kolaba, be deemed to have been abolished and 5SupCiNP /70--6 2 save as expressly provided by this Act, all the incidents of the said tenure shall be deemed to have been extinguished, numberwithstanding any law, custom, or usage or anything companytained in any sanad, grant, kabulayat, lease, decree or order of any companyrt or any other instrument. Section 10 deals with the right to trees and states The rights to trees specially reserved under the Indian Forest-Act, 1927, or any other law for the time being in force except those the ownership of which has been transferred by Government under any companytract, grant or law for the time being in force shall vest in Gov- ernment. Section 12 of the Act before its amendment by the Maharashtra Act 43 of 1963 stood as under If a khot or any other person is aggrieved by any of the provisions of this Act as extinguishing or modifying any of his rights in land and if such person proves that such extinguishment or modification amounts to transference to public ownership of any land or any right in or over such land, such person may apply to the Collector for companypensation. Such application shall be made in the form prescribed by rules made under this Act on or before the 3 1 st day of March, 1952. The Collector shall after holding a formal inquiry in the manner provided by the Code award such companypensation as he deems reasonable and adequate Provided that- a the amount of companypensation for the- extinguishment of the right of reversion in lands in a Khoti village in the district of Ratnagiri shall number exceed the amount calculated at the rate of Rs. 2 per 100 acres of such land b the amount of companypensation for the extinguishment of any right to appropriate any uncultivated and waste lands number appropriated by any khot and number entered in the revenue or survey records as khoti khasgi immediately before the 1st day of August, 1949, shall number exceed the amount calculated at the rate of Rs. 5 per 100 acres of such land Provided further that in the case of the extinguishment or modification of any other right of a khot or any right of any other person the Collector shall be guided by the provisions of sub-section 1 of section 23 and section 24 of the Land Acquisition Act, 1894 Provided also that if any question arises whether any land is dhara, khoti khasgi or khoti nisbat or is held by a permanent tenant or other tenant, the Collector shall after holding a formal inquiry in the manner provided by the Code decide the question. Subject to the provisions of sub-section 5 , the award or decision of the Collector shall be final. Any person aggrieved by the award or decision of the Collector may appeal to the Bombay Revenue Tribunal companystituted under the Bombay Revenue Tribunal Act, 1939. The Act was amended by the Maharashtra Act 43 of 1963 by which payment of companypensation was provided to any loss of share in the forest revenue and the Amending Act came into force on October 6, 1963 and it was provided that the claim for companypensation can be entertained upto March 31, 1964. On behalf of the appellants Mr. S. T. Desai did number press the argument that the Act is ultra vires of the Constitution of India or that the Act did number apply to the village of Kotheri or to the survey plots in dispute. Learned companynsel said that the appellant should be given sufficient opportunity of proving by oral and documentary evidence that they had proprietary rights in survey plots 130 and 132 of Mau a Kotheri in the status of kothi. The legal position is well-established that khotis in the district of Kolaba are hereditary farmers of land revenue and are entitled to hold villages as khoti on their entering every year into the customary- kabulayat. According to Molesworths Dictionary khot means a renter of a village, a farmer of land or revenue, a farmer of the customs, a companytractor or monopolist an hereditary officer whose duty it is to companylect the revenue of the village for Government, also an officer appointed for this office a tribe of Brahmins in the Southern Konkan. In Tajubai v. Sub-Collector of Kulaba 1 it was held by the majority of the Full Bench that the khotis have numberproprietary right in the soil of their village but only hereditary right to farm the 1 5 Bom. High companyrt Reports 132. revenue and that if the khots right is the hereditary farming of the revenue, the living principle of that right would number be property inherent in the khot, but a perpetually running companytract with the State. At p. 149 Newton J., observed in the companyrse of his judgment Do these facts e establish more than is admitted, namely, that the plaintiff had an hereditary right of farming the half of the village of Pegode, as long as, she companytinued annually to enter into the customary ,agreement ? Do they prove that she as khot had any such proprietary interest in the village, as would authorise her to claim restitution of the half-share unconditionally, after failure during several years to discharge the office of khot ? We think number. We think, further, that some of the above facts militate against the title alleged by the plaintiff. In Ganpati Gopal Risbud v. The Secretary of State for India 1 the Bombay High Court reiterated that khots in the district of Kolaba are hereditary farmers of the revenue and are entitled to hold their villages as Khoti on their entering every year into the customary Kabulayats. At p. 768 Macleod C.J. stated The relationship between the Khot and the Government, to my mind, is perfectly clear. As stated in Mr. Candys report it is indubitably established that a Khots interest in his village is limited, number absolute he possesses in some measure a proprietary right in fact he is an occupant with all the rights and liabilities affecting such a status. The Khot has to secure to Government the payment of the village revenue, while the village lands which he has to manage in accordance with the restrictions mentioned in the Kabulayat fall under three distinct classes. These are 1 Dharekari lands the tenants of which have a transferable and heritable right paying Dhara alone to the Khot 2 Khotnisbat lands which are either in the hands of permanent occupancy tenants or tenant,, with less permanent right payi Fayda to the Khot and the Government assessment and 3 Khoti Khasgi lands, private lands, in the possession of the Khot of which he can make such use as he pleases. It was companytended on behalf of the appellants that the Sud of 1869 at p. 124-A of the paper book was an important document id the Tribunal has number companyrectly appreciated the meaning of the 1 26 Bom. L.R. 754. words Khalsa and Varkas. We do number wish to express at this stage any companycluded opinion on the companystruction of this document. We wish to make it clear that it will be open to the appellants to show before the Special Deputy Collector how far this document has a bearing on their claim to proprietary right of survey plot number, 130 and 132. It is clear that in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Khoti is number the proprietor oF the lands companystituted as reserved forest in the khoti village and is number entitled to any proprietary right in the uncultivated or forest land. The legal position is companyrectly summarised in Dandekars Law of Land Tenures, Vol. 1, pp. 287-288 as under Section 41 of the Land Revenue Code declares that the right to all trees, bushwood, jungle or other natural product, wherever growing, except in so far as the same may be the property of individuals capable of holding property, vests in Government. Government proprietorship of all trees is the rule and private rights or proprietorship, if any, are merely exceptions to the rule. The question whether a Khot has got the proprietary or any other limited right to the trees standing or growing on lands in his khoti village depends 1 upon the khots intereSt in the soil 2 upon any express grant or companycession, and 3 upon the customary user, if any. If the first case, if the khot is the proprietor of the soil, which is very hardly the case, lie is the proprietor of all the trees standing or growing on the lands in his khoti village. The trees upon the land,and the right to cut down and sell those trees is incident to proprietorship of the land. In such a case the principle is quicquid plantatus solo solo cedit. Ordinary the khot having numberownership over the soil, it has been held that he is number entitled to cut timber either on uncultivated or on forest lands. Government has the right to take such lands to make a forest reserve under the customary law as well as under positive enactments. It is necessary in this companytext to refer to the presumption that forest tracts and old waste belong to Government unless the presumption is displaced by positive evidence that Government has granted rights in any particular tract or piece of land or has companysciously allowed adverse rights to grow therein. see Kodoth Ambu Nair v. Secretary of State for India. 1 In Sadashiv Parshram Risbud v. The Secretary of State for India 2 the question arose whether the khots were entitled to 1 51 I.A. 257. 2 20 Bom. L.R. 141. recover the sale proceeds of certain teak trees sold by Government grown on Varkas lands. In the alternative the khots claimed one-third share of the sale proceeds relying upon the clause in the kabulayat. It was held by the Bombay High Court that as between the khots and the Government the matter in dispute was companycluded by the kabulayat and the khot companyld number obtain more than one-third of the proceeds of the sale of the trees. It was held by Shah, J., that the Dunlops Proclamation companyld apply to Varkas lands in a khoti village but if any person claimed the benefit of the Proclamation he should prove that the land, on which the trees stood, was his in a popular sense, that is, it was sufficiently marked out as being in his permanent occupation in his own right so as to make it properly describable as his land. On the facts of that case it was held that the khots had numberclaim to the teak trees under s. 40 of the Land Revenue Code and they had failed to prove that they were entitled to the benefit of Dunlops Proclamation in respect of the Varkas lands in question. In the present case the Maharashtra Revenue Tribunal has remanded the case for retrial to the Special Deputy Collector, Kolaba for decision on the following points Whether the appellants prove that they are the proprietors of the lands in the village of Kotheri or in the lands attached as a reserved forest to the said village Whether the appellants are entitled to any companypensation for the village gaothan lands or lands under the rivers and nallas. This claim is based on the allegation of the appellants that they are the proprietors of the village Whether the appellants are entitled, as a customary incident of the Khoti, to a share in the forest revenues of the village What is the market value of the loss of such share or right, if any, in the gaothan and river and nalla lands. We affirm the above order of remand and further direct that an opportunity should be given by the Special Deputy Collector to both sides to adduce such evidence as they choose on these points. After taking such evidence the Special Deputy Collector will pronounce the award in the light of the law laid down in this judgment. Subject to these observations we affirm the order of the Maharashtra Revenue Tribunal dated February 25, 1965 and dismiss the appeal. There will be numberorder as to companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1377 of 1968. Appeal from the judgment and order dated January 24, 1968 of the Gujarat High Court in Special Civil Application No. 837 of 1960. S. Bindra, S. K. Dholakia and S.P. Nayar, for the appellant. C. Chagla and I. N. Shroff, for respondent Nos. 1 to 3. HIDAYATULLAH, C. J., delivered a Separate Opinion. The Judgment of SHAH, RAMASWAMI, MITTER and GROVER, JJ. was delivered by SHAH, J. Hidayatullah C.J. I have read the weighty judgment proposed to be delivered by my brother Shah and I find myself so much in agreement with it that I companysider it unnecessary for me to express myself. However, it is proper for me to say a few words in ,explanation since I was a party to P. Vajravelu Mudaliars case 1 and the obiter pronouncement of some opinions there. That case was heard with N. B. Jeejeebhoys case 2 . One was a post Constitution Fourth Amendment case and the other a pre-constitution case. The judgment in the two cases were delivered on the same day. It appears that the reasoning in the two cases was number kept separate and the whole of the matter was discussed in a case in which it was number necessary for the ultimate companyclusion. Because of the close proximity of the decisions I it escaped me that the discussion was in the wrong case and the other merely followed it. My brother Shah has number made the two cases to fall in their proper places. It is certainly out of the question that the adequacy ,of companypensation apart from companypensation which is illusory or proceeds upon principles irrelevant to its determination should be questioned after the Amendment of the Constitution The Amendment was expressly made to get over the effect of the earlier cases which had defined companypensation as just equivalent. Such a question companyld number arise after the amendment. I am in agreement that the remarks in P. Vajravelus case 1 must be treated as obiter and number binding on us. I am also of the opinion that the Metal Corporation case s was wrongly decided and should be over- ruled. Shah, J. In a writ petition field by the first respondent Shantilal Mangaldas the High Court of Gujarat has declared ss. 53 and 67 of the Bombay Town Planning Act 27 of 1955, ultra vires, insofar. as they authorise the local authority, 2nd respondent in this appeal, to acquire lands under a town-planning scheme, and as a companyollary to that view has declared invalid the City Wall Improvement Town Planning Scheme No. 5 framed in exercise of the powers companyferred under, the Act. By Resolution dated April 18, 1927, the Borough Municipality of Ahmedabad which was a local authority under the Bombay Town Planning Act 1 of 1915 declared its intention to make a town-planning scheme known as The City Wall Improvement 1 1965 1 S.C.R. 614. 2 1965 S.C.R.636. 3 1967 1 S.C.R. 255. Town Planning Scheme. in respect of a specified area. A plot of land No. 221 measuring 18,219 square yards belonging to the first respondent was companyered by the scheme. The Provincial Government sanctioned the intention to make the scheme, and a draft scheme was then prepared under which the area of plot No. 221 was reconstituted into two plots-Plot No. 176 measuring, 15,403 square yards reserved for the first respondent and Plot No. 178 measuring 2,816 square yards reserved for the local authority for companystructing quarters for municipal employees. The draft. scheme was sanctioned by the Government of Bombay on August 7, 1942. On August 13, 1942, the Government of Bombay appointed an arbitrator under Act 1 of 1915 to decide matters, set out in s. 30 of the Act-. From time to time several arbitrators were appointed, but apparently little progress was made in the adjudication of matters to be decided by them under the act. The Bombay Town Planning Act 1 of 1915 was repealed by s. 90 of the Bombay Town Planning Act 27 of 1955 with effect from April 1, 1957. By s. 90 2 making of any scheme companymenced under the repealed Act was to be companytinued and the pro- visions of the new Act were to have effect in relation to the publication, declaration of intention, draft scheme, final scheme, sanction, variation, restriction, proceedings, suspension and recovery to be made or companypensation to be given. The arbitrator appointed under Act 1 of 1915 was designated Town Planning Officer under Act 27 of 1955, and the proceedings under the City Wall Improvement Town Planning Scheme were companytinued before him. On August 23, 1957, the Town Planning Officer informed the first respondent that Rs. 25,411 were awarded to him as companypensation for plot No. 178. The first respondent then filed a petition in the High Court of Gujarat which had jurisdiction after reorganization of the State of Bombay challenging the validity of Act 27 of 1955 and acquisition of plot No. 178 on the plea that the Act infringed the fundamental right of the first respondent guaranteed by Art. 31 2 of the Constitution. The scheme was sanctioned by the Government of Gujarat on July 21, 1965, and the final scheme came into operation on September 1, 1965. The High Court entered upon an elaborate analysis of the provisions of the Act and held Section 53 read with section 67 in so far as it authorises acquisition of land by the local authority under pending schemes companytinued under section 90 of the new Act must, therefore, be held to be violative of Article 31 2 and the acquisition of petitioners lands in the various petitions under the City Wall Improvement Town Planning Scheme No. 5 must be held to be invalid., and on that view the High Court did number companysider the other companytentions raised on behalf of the first respondent. With certificate granted by the High Court, this appeal is preferred by the State of Gujarat. The declaration of intention, preparation of the draft scheme and proceeding for preparation of the final scheme were made under Act 1 of 1915. Intimation of the amount of companypensation determined to be payable to the first respondent was however given under Bombay Act 27 of 1955 and the scheme was also sanctioned. But by s. 90 of the Act as amended by Gujarat Act 52 of 1963, ,continuity of the operations for making and implementing the Town Planning Scheme is maintained. The principal objects of the town planning legislation are to provide for planned and companytrolled development and use of land in urban areas. Introduction of the factory system into methods of manufacture, brought about a great exodus of population from the village into the manufacturing centres leading to companygestion and overcrowding, and cheap and insanitary dwellings were hurriedly erected often in the vicinity of the factories. Erection of these dwellings was generally subject to little supervision or companytrol by local authorities, and the new, dwellings were built in close and unregulated proximity with little or numberregard to the requirements ,of ventilation and sanitation. Necessity to make a planned development of these new companyonies for housing the influx of population in sanitary surroundings was soon felt. The Bombay Legislature enacted Act 1 of 1915 with a view to remedy the situation. The Bombay Town Planning Act 27 of 1955 is modelled on the same pattern as Act 1 of 1915, but with one important variation. By Ch. 11 of the new Act it is made obligatory upon every local authority to carry out a survey of the area within its jurisdiction and to prepare and publish in the prescribed manner a development plan and submit it to the Government for sanction. A development plan is intended to lay down in advance the manner in which the development and improvement of the entire area within the jurisdiction of the local authority are to be carried out and regulated, with particular reference to- a proposals for designating the use of the land, for the purposes-such as 1 residential, 2 industries 3 companymercial, and 4 agricultural b proposals for designation of land for public purposes such as parks, play-grounds, recreation grounds, open spaces, schools, markets or medical, public health of physical culture institutions c proposals for roads and highways d proposals for the reservation of land for the purpose of the Union, any State, any local authority or any other authority established by law in India and e such other proposals for public or other purposes as may from time to time be approved by a local authority or directed by the State Government in that behalf, By making it obligatory upon a local authority to prepare a development plan under Bombay Act 27 of 1955 it was clearly intended that the Town Planning Schemes should form part of a single companyesive pattern for development of the entire area over which the local authority had jurisdiction. Chapter III of, Bombay Act 27 of 1955 relates to the making of the Town Planning Scheme. Chapter IV deals with the de- claration of intention to make a scheme and making of a draft scheme. Chapter V deals with the appointment of Town Planning Officers and the Board of Appeal and their powers. Chapter VI deals with the splitting up of schemes into sections and preliminary schemes. Chapter VII deals with Joint Town Planning Schemes and Ch. VIII with finance. Under Bombay Act 27 of 1955 after a development plan is sanctioned, the local authority makes a declaration of its intention to make a scheme and then prepares a draft scheme setting out the size and shape of every reconstituted plot, so far as may be, to render it suitable for building purposes and where the plot is already built upon, to ensure that the building as far as possible companyplies with the provisions of the scheme as regards open space. The scheme may also make provision for lay out of lands filling up or reclamation of lands, lay out of new streets,, roads, company- struction, diversion, extension, alteration, improvement and stopping up of streets, roads and companymunications companystruction, alteration and removal of buildings, bridges and other structures allotment or reservation of lands for roads, open spaces, gardens, recreation grounds, schools, markets, green belts, dairies, transport facilities, and public purposes of all kinds drainage, lighting ,water- supply preservation of objects of historical or national interest or beauty and of buildings used for religious purposes imposition of companyditions relating to. companystructions and other matters number inconsistent with the object of the Act as may be prescribed. The draft scheme is published after, it receives the sanction of the State Government. The State Government then appoints Town Planning Officer to perform the duties specified in S. 32 of the Act. An appeal lies to a Board of Appeal against certain decisions which the Town Planning Officer may, make. After the Town Planning Officer has dealt with the various matters relating to the draft scheme, and the appeals against his orders have been disposed of, the State Government may sanction the scheme,, and on and after the date fixed in the numberification sanctioning the scheme, the town planning scheme has effect as if it were enacted in the Act. In making a town-planning scheme the lands of all persons companyered by the scheme are treated as if they are put in a pool. The Town Planning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public purposes. Reconstituted plots are allotted to the landholders. The reconstituted plots having regard to the exigencies of the scheme need number be of the same dimensions as the original land. Their shape, and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Town Planning Officer may lay out new roads, divert or close existing roads, reserve lands for recreation grounds schools, markets, green belts and similar public purposes, and provide for drainage, lighting, water-supply, filling up or reclamation of low-lying, swamp. or unhealthy areas or leveling up of land so that the total area included in the schem e may companyduce to the health and well-being of the residents. Since the town-planning scheme is intended to improve the sanitary companyditions prevailing in a locality, the owners of plots are required to maintain land open around their buildings. The object of the scheme being to provide amenities for the benefit of the residents generally the area in the occupation of the individual holders of land is generally reduced, for they have to companytribute out of their plots, areas which are required for maintaining the services beneficial to the companymunity. Under the Act the companyt of the scheme is to be met wholly Pr in part by companytributions to be levied by the local authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of each plot. To ensure that numberundue hardship is caused and owners of plots have an opportunity of raising objections to the provisions of the scheme including its financial provisions, power is companyferred upon the Town Planning Officer to entertain and hear objections against the reconstitution of the plots and relating to matters specified in s. 32 i.e. the physical, legal and financial provisions of the scheme. Only after the objections have been heard and disposed of, the scheme is published and becomes final. The relation between ss. 53 and 67 which have been declared ultra vires by the High Court and the other related provisions may number be determined. Section 53 of the Act provides On the day on which the final scheme companyes into force,- a all lands required by the local authority shall, unless it is otherwise determined in such scheme, vest absolutely in the local authority free from all encum- brances b all rights in the original plots which have been re-constituted shall determine and the re-constituted plots shall become subject to the rights settled by the Town Planning Officer. The expression re-constituted plot is defined in s. 2 9 as meaning a plot which is in any way altered by the making of a town planning scheme and by the Explanation the word altered includes alteration of ownership. By cl. b of s. 53 ownership in a plot belonging to a person is substituted by the ownership in the reconstituted plot his ownership in the original plot is extinguished and simultaneously therewith he becomes the owner of a recon- stituted plot subject to the rights settled by the Town Planning Officer. On the companying into force of the scheme all lands which are required by the local authority, unless otherwise determined in the scheme, by the operation of s. 53 a , vest absolutely therein free from all encumbrances. The result is that there is a companyplete shuffling up of plots of land, roads, means of companymunication, and rearrangement thereof. The original plots are re-constituted, their shapes are altered, portions out of plots are separated, lands belonging to two or more owners are companybined into a single plot, new roads are laid out, old roads are diverted or closed up, and lands originally belonging to private owners are used for public purposes i.e. for providing open spaces, green belts dairies etc. In this process the whole or part of a land of one person, may go to make a reconstituted plot, and the plot so reconstructed may be allotted to another person and the lands needed for public purposes may be earmarked for those purposes. The re-arrangement of titles in the various plots and reservation of lands for public purposes require financial adjustments to be made. The owner who is deprived of his land has to be companypensated, and the owner who obtains a re- companystituted plot in surroundings which are companyducive to better sanitary living companyditions has to companytribute towards the expenses of the scheme. This is because on the making of a town planning scheme the value of the plot rises and a part of the benefit which arises out of the un L8Sup.C.I/69--4 earned rise in prices is directed to be companytributed towards financing of the scheme which enables the residents in that area to more amenities, better facilities and healthier living companyditions. For that purpose provision is made in S. 65 that the increment shall be deemed to be the amount by which at the date of the, declaration of intention to make a scheme, the market value of a plot included in the final scheme, estimated on the assumption that the scheme has been companypleted, would exceed at that, the market value of the same plot estimated without reference to improvements companytemplated by the scheme. By S. 66 the companyt of the scheme is required to be met wholly or in part by companytributions to be levied by the local authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of such plot by the Town Planning Officer. Section 67 provides The amount by which the total value of the plots included in the final scheme with all the buildings and works thereon allotted to a person falls short of or exceeds the total value of the original plots with all the buildings and works thereon of such person shall be deducted from or added to, as the case may be, the companytributions leviable from such persons, each of such plots being estimated at its market value at the date of the declaration of intention to make a scheme or the date of a numberification under sub- section 1 of section 24 and without reference to improvements due to the alteration of its boundaries. Section 67, it will clearly appear, is intended to make adjustments between the right to companypensation for loss of land suffered by the owner, and the liability to make companytribution to the finances of the scheme and S. 71 is a companyollary to s. 67. Section 71 provides If the owner of an, original plot is number provided with a plot in the final scheme or if the companytribution to be levied from him under section 66 is less than the total amount to be deducted therefrom under any of the provisions of this. Act, the net amount of his loss shall be payable to him by the local authority in cash or in such other way as may be agreed upon by the parties. The provisions relating to payment of companypensation and re- companyery of companytributions are vital to the successful implementation of the scheme. The owner of the reconstituted plot who gets the benefit of the scheme must make companytribution towards the expenses of the scheme the owner who loses his property must similarly be companypensated. For the purpose of determining the companypensation the Legislature has adopted the basis of market value of land expropriated, but the land is valued number on the date of ex- tinction of the owners interest, but on the date of the declaration of intention to make the scheme. In the view of the High Court this pattern of companyputing company- pensation infringes the fundamental right guaranteed under Art. 31 2 , of the Constitution. Since the Act authorises companypulsory transfer of ownership in land to the local authority for public purposes the High Court held it clearly falls within the terms of, Art. 31 2A of the Constitution, and on that account there is acquisition of land within the meaning of Art. 31 2 of the Constitution, and the Act is number protected by Art. 31 5 b ii . The High Court further held that in determining the companypensation payable to the owner of the land which is appropriated to public purposes, the increase in the value of the reconstituted plot allotted cannot be taken into account, because it is number attributable or relatable to the acquisition of their plots, but is a benefit which they share in companymon with the other members of the companymunity as a result of the scheme, quite irrespective whether their plots are acquired or number, and it is, therefore, number liable to be taken into account in determining whether the companypensation received by them for acquisition of their plots was adequate, that in any event the increment in the value of the, plot allotted to the owner is uncertain as well. as irrelevant as a principle for determining companypensation, since it is quite possible that numberPlot may, be allotted to an owner of land in a Town Planning Scheme. Further, observed the High Court, companypensation for loss of land being determined under s. 67 of the Act only on the basis of the market value at the date of declaration of intention to make the scheme and number the market value at the date on which the scheme companyes into force, the Act does number give for the original plot of land of the owner a recon- stituted plot together with companypensation for loss of the difference in the area between the original and reconstituted plot. The High Court further observed that a provision for awarding companypensation on the basis of market value under s. 67 of the Act is a sufficient specification of a principle of companypensation within the meaning of Art. 31 2 , but the Act was still number saved for two reasons 1 that there was numberprinciple for companypensating an owner of land to whom numberreconstituted plot was allotted and 2 that payment provided by the Act in satisfaction of the claim to land statutorily expropriated based on the market value of the land at the date of the declaration of intention to make a scheme was number payment of companypensation guaranteed by Art. 31 2 . The High Court was of the view that companypensation based on the market value may be sufficient specification of principle of companypensation within Art. 31 2 only if it is a just equivalent of the land expropriated and payment companyputed on the market value at a date many years before the date on which the land was acquired is inconsistent with the companystitutional guarantee under Art. 31 2 . The High Court in companying to that companyclusion felt itself bound by the observations made in the judgments of this Court in P. Vajravelu Mudaliar V. The Special Deputy Collector, Madras 1 , The State of West Bengal v. Mrs. Bela Banerjee and Others 1 N. B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana 3 and Union of India v. Metal Corporation of India Ltd. and Another 4 . The view taken by the High Court was that the Town Planning Act insofar as it provides for transfer of private rights of ownership to a local authority under s. 53 a is a law relating to acquisition of lands which attracts the protection of Art. 31 2 , and since the Act by s. 67 provides for companypensation which is number a just equivalent in terms of money of the property expropriated it companyld number be upheld under Art. 31 2 of the Constitution. Mr. Bindra appearing on behalf of the State of Gujarat company- tends that Bombay Act 27 of 1955 is number a law relating to acquisition of lands, but it is a law dealing with health and public sanitation for it is enacted with the object of promotion of public health and on that account falls within the terms of Art. 31 5 ii of the Constitution, and is exempt from the operation of cl. 2 of Art. 31. Alternatively, Mr. Bindra companytends that the Act specifies the principles on which companypensation is to be determined and the guarantee under Art. 31 2 is on that account number infringed. Counsel urges that the object of the Town Planning Act in pith and substance is to facilitate planned development, to ensure healthy surroundings to the people living in companygested localities and to provide them with sanitation and other urban facilities companyducive to healthy living and on that account is an Act falling within Entry 6 of List If of the Seventh Schedule-Public health and sanitation, and Entry 20 of List III-Economic and social planning. But the companypetence of the Legislature to enact legislation on the subject matter of the Act and for the object intended to be served thereby are irrelevant in determining whether any fundamental right of a person is infringed by the impugned Act. The doctrine of pith and substance is applicable in determining whether a statute is within the companypetence of the legislative body, especially in a federal set up, where there is division of legislative powers it is wholly irrelevant in determining whether the statute infringes any fundamental right. For a clearer appreciation of the alternative argument it may be useful to set out the terms of Art. 31 of the Constitution as amended by the Constitution Fourth Amendment Act, 1955 No person shall be deprived of his property save by authority of law. 1 1965 1 S.C.R. 614. 2 1954 S.C.R. 558. 3 1965 1 S.C.R. 636. 4 1967 1 S.C.R. 255. No property shall be companypulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for companypensation for the property so acquired or requisitioned and either fixes the amount of the companypensation or specifies the principles on which, and the manner in which, the companypensation is to be, determined and given and numbersuch law shall be called in question in any companyrt on the ground that the companypensation provided by that law is number adequate. I 2A Where a law does number provide for the transfer of the ownership or right to possession of any property to the State or to a companyporation owned or companytrolled by the State, it shall number be deemed to provide for the companypulsory acquisition or, requisitioning of property, numberwithstanding that it deprives any person of his property. No such law as is referred to in clause 2 made by the Legislature of a State shall have effect unless such law, having been, reserved for the companysideration of the President, has received his assent. 4 Nothing in clause 2 shall affect- a b the provisions of any law which the State may hereafter make- for the promotion of public health or the prevention of danger to life or property, or iii 6 It is settled law that clauses 1 and 2 under the amended Article guarantee different rights to owners of property. Clause 1 operates as a protection against deprivation of property save by authority of law, which, it is beyond question, must be a valid law, i.e. it must be within the legislative companypetence of the State Legislature, and must number infringe any other fundamental right. Clause 2 guarantees that property shall number be acquired or requisitioned except in cases provided by cl. 5 save by, authority of law providing for companypulsory acquisition or requisition and further providing for companypensation for the property so acquired or requisitioned and either fixes the amount of companypensation or specifies the principles on which, and the manner in which, the companypensation is to be determined and given. If the companyditions for companypulsory acquisition or requisition are fulfilled, the law is number liable to be called in question before the companyrts on the ground that the companypensation provided by the law is number adequate. Clause 2A is in substance a definition clause a law which does number provide for the transfer of the ownership or right to possession of any property to the State or to a companyporation owned or companytrolled by the State is number to be deemed to provide for the companypulsory acquisition or requisitioning of property, numberwithstanding that it deprives any person of his property. The following principles emerge from an analysis of clauses 2 and 2A companypulsory acquisition or requisition may be made for a public purpose alone, and must be made by authority of law. Law which deprives a person of property but does number transfer ownership of the property or right to possession of the property to the State or a companyporation owned or companytrolled by the State is number a law for companypulsory acquisition or requisition. The law, under the authority of which property is companypulsorily acquired, or requisitioned, must either fix the amount of companypensation or specify the principles on which, and the manner in which, the company- pensation is to be determined and given. If these companyditions are fulfilled the validity of the law cannot be questioned on the plea that it does number provide adequate companypensation to the owner. It is companymon ground that a law for companypulsory acquisition of property by a local authority for public purposes is a law for acquisition of property by the State within the meaning of that expression as defined in Art. 12. The Act,was reserved for the companysideration of the President and received his assent on August 1, 1955, and since it provides expressly by S. 53 a that on the companying into force of the scheme the ownership in the lands required by the local authority for public purposes shall, unless it is other-wise determined in such scheme, vest absolutely in the local authority free from all encumbrances, the clause companytem- plates transfer of ownership by law from private owners to the local authority. The Act is, therefore a law for companypulsory acquisition of land. We are also unable to agree with companynsel for the State that because the object of the Act is intended to promote public health, it falls within the exception in Art. 31 5 b ii . The question is number settled by a recent judgment of this Court Deputy Commissioner Collector, Kamrup Others v. Durga Nath Sharma 1 This Court held in Durga Nath Sharmas case 1 that the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act 6 of 1955 which provided for the acquisition of land on payment of companypensation in accordance with the principles in s.6 of that Act was a purely exproprietary measure, and being a law for acquisition of land, though for prevention of danger to 1 1968 1 S.C.R. 561. life and property, was number protected by Art. 31 5 b ii . It was observed at p. 574 A law authorising the abatement of a public menace by destroying or taking temporary possession of private properties if the peril cannot be abated in some other way can be regarded as a law for promotion of public health or prevention of danger to life or pro- perty within the purview of cl. 5 b ii . But it is number possible to say that a law for permanent acquisition of property is such a law. The object of the acquisition may be the opening of a public park for the improve- ment of public health or the erection of an embankment to prevent danger to life or property from flood. Whatever the object of the acquisition may be, the acquired property belongs to the State. . . Clause 5 b ii was intended to be an exception to cl. 2 and must be strictly companystrued. Acquisition of property for the opening of a public park or for the erection of dams and embankments were always made under the Land Acquisition Act, and it companyld number have been intended that such acquisition companyld be made under laws companying within the purview of cl. 5 b ii without payment of companypensation. The first companytention urged by Mr. Bindra cannot, therefore, be accepted. But, in our judgment, the companytention urged by Mr. Bindra for the State of Gujarat that ss. 53 and 67 of the Act regarded as law for acquisition of land for public purposes do number infringe the fundamental right under Art. 31 2 of the Constitution is acceptable, because the Act specifies the principles on which companypensation is to be determined and given. Article 31 guarantees that the law providing for companypulsory acquisition must provide for determining and giving companypensation for the property acquired. The expression companypensation is number defined in the Constitution. Under the Land Acquisition Act companypensation is a ways paid in terms of money. But that is numberreason for holding- that companypensation which is guaranteed by Art. 31 2 for companypulsory acquisition must be paid in terms of money alone. A law which provides for making satisfaction to an expropriated owner by allotment of other property may be deemed to be a law providing for companypensation. In ordinary parlance the expression companypensation means any thing given to make things equivalent a thing given to or to make amends for loss, recompense, remuneration or pay it need number therefore necessarily be in terms of money. The phraseology of the companystitutional provision also indicates that companypensation need number necessarily be in terms of money, because it expressly provides that the law may specify the principles on which, and the manner in which, companypensation is to be determined and given. If it were to be in terms of money alone, the expression paid would have been more appropriate. The principal argument which found favour with the High Court in holding s. 53 ultra wires is that when a plot is reconstituted and out of that plot a smaller area is given to the owner and the remaining area is utilised for public purpose, the area so utilised vests in the local authority for a public purpose, and since the Act does number provide for giving companypensation which is a just equivalent of the land expropriated at the date of extinction of interest, the guaranteed right under Art. 31 2 is infringed. White adopting that reasoning companynsel for the first respondent adopted another line of approach also. Counsel companytended that under the scheme of the Act the entire area of the land belonging to the owner vests in the local authority, and when the final scheme is framed, in lieu of the ownership of the original plot, the owner is given a reconstituted plot by the local authority, and companypensation in money is determined in respect of the land appropriated to public purposes according to the rules companytained in ss. 67 71 of the Act. Such a scheme for companypensation is, it was urged, inconsistent with the guarantee under Art. 31 2 for two reasons-- 1 that companypensation for the entire land is number provided and 2 that payment of companypensation in money is number provided even in respect of land appropriated to public use. The second branch of the argument is number sustainable for reasons already set out, and the first branch of the argument is wholly without substance. Section- 53 does number provide that the reconstituted plot is transferred or is to be deemed to be transferred from the local authority to the owner of the original plot. In terms s. 53 provides for statutory readjustment of the rights of the owners of the or plots of land. When the scheme companyes into force all rights in the original plots are extinguished and simultaneously therewith ownership. springs in the reconstituted plots. There is numbervesting of the original plots in the local authority number transfer of the rights of the local authority in the reconstituted plots. A part or even the whole plot belonging to an owner may go to form a reconstituted plot which may be allotted to another person, or may be appro- priated to public purposes under the scheme. Me source of the power to appropriate the whole or a part of the original plot in forming a reconstituted plot is statutory. It does number predicate ownership of the plot in the local authority, and numberprocess actual or numberional of transfer is companytemplated in the appropriation. The lands companyered by the scheme are subjected by the Act to the power of the local authority to readjust titles, but numberreconstituted plot vests at any stage in the local authority unless it is needed for a purpose of the authority. Even under cl. a of s. 53 the vesting in a local authority of land required by it is on the companying into force of the scheme. The companycept that lands vest in the local authority when the intention to make a scheme is numberified is against the plain intendment of the Act. The object of s. 67 is to set out the method of adjustment of companytribution against companypensation receivable by an owner of land By that section the difference between the total value of the plots included in the final scheme with all the buildings and works thereon allotted to a person and the total value of the original plot with all the buildings and works thereon must, be estimated on the basis of the market value at the date of the declaration of intention to make a scheme, and the difference between the two must be ad- justified towards companytribution payable by the owner of the plot included in the scheme. In other words, s. 67 provides that the difference between the market value of the plot with all the buildings and works thereon at the date of the declaration of intention to make a scheme and the market value of the plot as reconstituted on the same date and without reference to the improvements companytemplated in the scheme is to be the companypensation due to the owner. Section 71 which is a companyollary to s. 67 provides, inter alia, that if the owner of the original land is number allotted a plot at all, he shall be paid the value of the original plot at the date of the declaration of intention to make a scheme. The question that falls then to be companysidered is whether the scheme of the Act which provides for adjustment of the market value of land at the date of the declaration of intention of making a scheme against market value of the land which goes to form the reconstituted plot, if any, specifies a principle for determination of companypensation to be given within the meaning of Art. 31 2 . Two arguments were urged on behalf of the first respondent-41 that the Act specifies numberprinciples on which the companypensation is to be determined and given and 2 that the scheme for recom- pense for loss is number a scheme providing for companypensation. It is true that under the Act the market value of the land at the date of declaration of intention to make a scheme determines the amount to be adjusted, and that is the guiding rule in respect of all lands companyered by the scheme. The High Court was, in our judgment, right in holding that enactment of a rule determining payment or adjustment of price of land of which the owner was deprived by the scheme estimated on the market value on the date of declaration of the intention to make a scheme amounted to specification of a principle of companypensation within the meaning of Art. 31 2 . specification of principles means laying down general guiding rules applicable to all persons or transactions governed thereby. Under the Land Acquisition Act companypensation is determined on the basis of market value of the land on the date of the numberification under s. 4 1 of that Act. That is a specification of principle. Compensation determined on the, basis of market value prevailing on a date anterior to the date of extinction of interest is still determined on a principle specified. Whether an owner of land is given a reconstituted plot or number, the rule for determining what is to be given as recompense remains the same. It is a principle applicable to all cases in which by virtue of the operation of the Town Planning Act a person is deprived of his land whether in whole or in part. On the second branch of the argument it was urged that a provision for giving the value of land, number on the date of extinction of interest of the owner, but on the footing of the value prevailing at the date of the declaration of the intention to make a scheme, is number a provision for payment of companypensation. With special reference to the facts of the present case, it was said, that whereas the declaration of intention to make a scheme was made in 1927, the final scheme was published in 1957, and a provision for payment of market value prevailing in the year 1927 is number a provision for companypensation. It is perhaps right to say that company- pensation cases should number be allowed to drag on for a long time, because then the companypensation paid has numberrelevance to the exact point of time when the extinction actually takes place. But the validity of an Act cannot ordinarily be judged in the light of the facts in a given case. In support of the argument that the value of land determined by reference to a date far removed from the date on which the tide of the land is extinguished, though determined according to a guiding rule, is number companypensation, because it is number a just equivalent of the land expropriated, strong reliance was placed upon certain observations made by this Court in P. Vajravelu Mudaliars case 1 and in the Metal Corporation of India Ltd.s case 2 . If the argument that for companypulsory acquisition of property an owner is by the Constitution guaranteed a just equivalent of the property of which he is deprived at the date of acquisition, the plea that what is provided, as companypensation by ss. 67 and 71 as the value to be adjusted against the amount of companytribution, if any, infringes the guarantee of Art. 31 2 , would be unassailable. The argument raised by companynsel for the first respondent raises a question of importance as to the true effect of Art. 31 of the Constitution and requires careful companysideration in the light of the historical development of the principles governing payment of companypensation by the State for companypulsory acquisition of property. Section 299 of the Government of India Act, 1935, insofar as it is material, provided- No person shall be deprived of his property save by authority of law. 1 1965 1 S.C.R. 614. 2 1967 1 S.C.R. 255. Neither the Federal or a Provincial Legislature shall have power to make any law authorising the companypulsory acquisition for public purposes of any land, or any companymercial or industrial undertaking, or any interest in, or in any companypany owning, any companymercial or industrial undertaking, unless the law provides for the payment of companypensation for the property acquired and either fixes the amount of the companypensation, or specifies the principles on which, and the manner in which, it is to be determined. Article 31 as originally enacted in the Constitution was substantially in the same terms as s. 299. Clause 1 of Art. 31 was enacted verbatim in the same terms as cl. 1 of s 299. Clause 2 of Art. 31 reproduced with some variation the principle of s. 299 2 . It was thereby enacted No property, movable or immovable, including any interest in, or in any companypany owning, any companymercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for companypensation for the pro- perty taken possession of or acquired and either fixes the amount of the companypensation, or specifies the principles on which, and the manner in which, the companypensation is to be determined and given. Shortly after the companying into force of the Constitution, disputes were raised about the validity of laws which abolished the Zamindari rights of landholders in the State of Bihar. In Kameshwar Singh v. State of Bihar 1 the Patna High Court held that the Bihar Land Reforms Act, 1951, companytravened Art. 14 in that it accorded differential treatment to landowners in the matter of companypensation. Similar challenge raised to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, was rejected by the High Court of Allahabad Surya Pat v. State of U.p. 2 . A group of petitions challenging the validity of the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act 1951 was moved in this Court Visheswar State of Madhya Pradesh 3 , but before these petitions companyld be disposed of, the Constitution First Amendment Act, 1951, was enacted with a view to eliminate all litigation challenging the validity of legislation for the abolition of proprietary and intermediary interests in agricultural lands on the ground of companytravention of the fundamental rights companytained in Part HI of the Constitution. To effectuate this purpose, Art. 31A was incorporated in the I.L.R. 30 Pat. 454. 2 I.L.R. 1952 2 All. 46. 3 1952 S.C.R. 1020. Constitution with retrospective effect, and Art. 31B and the Ninth ,Schedule were added placing certain Acts and Regulations beyond the challenge that they were inconsistent with, or took away or ,abridged any of the rights companyferred by any provision of Part III. But the amendments made by the Constitution First Amendment Act were inadequate to deal with questions relating to payment of companypensation to an owner of property number companyered by legislation falling within Arts. 31A and 31B who was deprived of it by companypulsory acquisition. Two cases decided by this Court in the month of December 1953 require to be numbericed In Mrs. Bela Banerjees case 1 validity of the West Bengal Land Development and Planning Act, 1948, which was enacted primarily for acquisition of land for setting migrants from East Bengal on account of companymunal disturbances, fell to be determined. Compensation payable for companypulsory acquisition of land needed for the purposes specified was under the Act was number to exceed the market value of the land on December 31, 1946. The Calcutta High Court declared the provisions of s. 8 ultra vires, and this Court companyfirmed that decision. It was observed by this Court that Entry 42 of List III of the Seventh Schedule companyferred on the Legislature the discretionary power of laying down the principles which govern the determination of the amount to be given to the owner of the property acquired and Art. 31 2 required that such principles must ensure that what is determined as payable is companypensation, that is, a just equivalent of what the owner has been deprived. In delivering the judgment of the Court, Patanjali Sastri, C.J. observed While it is true that the legislature is given the discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner for the property appropriated, such princ iples must ensure that what is determined as payable must be companypensation, that is, a just equivalent of what the owner has been deprived of Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected, Is a justiciable issue to be adjudicated by the Court. The other ease decided on December 17 1963 but number unanimously, was the State of West Bengal v. Subodh Gopal Bose and In that case it was held by a majority of the Court 1 1954 S.C.R. 558. 2 1954 S.C.R. 587. that Art. 31 protects the right to property by defining limitations on the power of the State to take away property without the companysent of the owner that clauses 1 and 2 of Art. 31 are number mutually exclusive in scope and companytent, but should be read together and understood as dealing with the same subject, namely, the protection of the right to property by placing limitations on the power of the State to take away the property, the deprivation companytemplated by cl. 1 being numberother than the acquisition or taking possession of the property referred to in cl. 2 and that the words taking of possession or acquisition in Art. 3 1 2 and the words acquisition or requisitioning in Entry 33 of List 1 and Entry 36 of List 11 as also the words acquired or requisitioned in Entry 42 of List 111, are different expressions companynoting the same companycept and instances of different kinds of deprivation of property within the meaning of Art. 31 1 of the Constitution. The result of the two decisions was to declare that cls. 1 and 2 dealt with the States power of, what the American lawyers call, eminent domain that power companyld only be exercised by giving a just equivalent of what the owner has been deprived and that whether the law made in exercise of power under Entry 42 of List III laid down principles which took into account the elements which made up the true value of the property appropriated, and excluded such matters which are to be neglected, was a justiciable issue. The power to legislate for companypulsory acquisition of property was originally distributed under three entries. Entry 33 List IAcquisition or requisitioning of property for the purposes of the Union Entry 36 of List II- Acquisition or requisitioning of property, except for the purposes of the Union, subject to the pro- visions of Entry 42 of List 111 and Entry 42 of List III-Principles on which companypensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such companypensation is to be given. By cl. 2 of Art. 31 exercise of the power to legislate for companypulsory acquisition of property was subject to the companydition that the law for Compulsory acquisition for public purposes either fixed the amount of the companypensation or specified the principles on which, and the manner in which the companypensation was to be determined and given. The expression companypensation according to this Court in Mrs. Bela Banerjees case 1 meant a just equivalent or full indemnification of the expropriated owner, and the expression deprived had the same companynotation as taking possession of or acquisition. According to Subadh Gopals CaSe 2 the law providing for acquisition or extinction of interest of private owners in properties 1 1954 S.C.R. 558. 2 1954 S.C.R. 587, number governed by Art. 31A and Art. 31B read with the Ninth Schedule, was liable to be struck down unless the law provided for payment to the expropriated owner companypensation which was a just equivalent. The two cases raised more problems than they solved. The Court did number indicate the meaning of the expression just equivalent, number the date with reference to which the just equivalent was referable. It was also number stated whether companypensation was to be the market value determined on principles set out in the Land Acquisition Act inclusive of the potential value as decided by the Judicial Committee in Raja Vyricherla Narayana Gajapatiraju v. The Revenue Divisional Officer 1 , or the value of mere existing advantages, apart from the potentialities was to be given. It was easier to state what was number a just equivalent than to define what the just equivalent was. The decisions did number indicate the limits on the power of the State to fix by law the amount of companypensation, which by the express words used in Art. 31 2 the Legislature possessed. But according to the judgment in Mrs. Bela Banerjees case 2 the principles specified by the Legislature for determining companypensation were open to judicial review. The Court in effect decided that a statute was liable to be struck down as infringing a guaranteed fundamental right on the ground that the companypensation provided thereby was inadequate. It needs to be emphasized that companypensation payable, for companypulsory deprivation of property is number by the application of any principles, determinable as a precise sum and by calling it just or fair equivalent, numberdefiniteness can be attached thereto. Rules enunciated by the Courts for determining companypensation for companypulsory acquisition under the Land Acquisition Act vary according to the nature of the land acquired. For properties which are number marketable companymodities, such as lands buildings and incorporeal rights, valuation has to be made on the application of different rules. Principle of capitalisation of net rent at the cur- rent market rate on guilt-edged securities,, principle of reinstatement, principle of determination of original value less depreciation determination of break-up value in certain types of property which have outgrown their utility, and a host of other so-called principles are employed for determination of companypensation payable for acquisition of lands houses, incorporeal rights, etc. in determining companypensation payable under the Land Acquisition Act, special adaptability to schemes of development and potentialities, but number the urgent need of the acquirer and the disinclina- tion of the vendor, have to be taken into account. The Land Acquisition Act provides for determination of companypensation by L.R. 66 I.A. 104. 2 1954 S.C.R. 558. 36 3 reference to the market value subject to certain matters being taken into account and some others being excluded as set out in ss. 23 and 24 of that Act. The rules relating to determination of value in regard to the agricultural and number-agricultural lands, house-sites, buildings, machinery and other properties, greatly vary and the value in respect of the same item of property by the application of different rules may lead to vast disparities. Right to companypensation, in the view of this Court, was intended by the Constitution to be a right to a just equivalent of the property of which a person was deprived. But the just equivalent was number capable of precise determination by the application of any recognized rules. The decisions of this Court in the two cases-Mrs. Bela Banerjees case 1 and Subodh Gopal Boses case 2 were therefore likely to give rise to formidable problems, when the principles specified by the Legislature as well as the amounts determined by the application of those principles, were declared justiciable. By qualifying equivalent by the adjective just, the enquiry was made more companytroversial and apart from the practical difficulties, the law declared by this Court also placed serious obstacles in giving effect to the directive principles of State policy incorporated in Art. 39. The Constitution was, in that state of the law declared by this Court, amended by the Constitution Fourth Amendment Act, 1955, which came into force on April 27, 1955. Thereby Clause 2 of Art. 31 was substituted by new cls. 2 and 2A . Article 31A was amended with retrospective effect seven more Acts were added-to the Ninth Schedule including the West Bengal Land Development and Planning Act, 1948, of which s. 8 was declared ultra vires by this Court in Subodh Gopal Boses case 2 , and certain companysequential provisions were made by substitution of an amended Art. 305 in place of the original Art. 305. The principal effect of this amendment, in so far as that is relevant in this appeal, was to snap the link which, according to this Court, existed between cls. 1 and 2 - that was achieved by enacting cl. 2A greater clarity was secured by enacting in cl. 2 that property shall be companypulsorily acquired only for a public purpose, and by authority of law which provides for companypensation, and either fixes the amount of companypensation or specifies the principles on which and the manner in which, companypensation is to be determined and given and that the law for acquisition or requisition shall number be called in question in any companyrt on the ground that the companypensation provided thereby is number adequate. By the amendment made in Art. 31A certain classes of statutes were placed with retrospective effect outside the purview of attack 1 1954 S.C.R.558. 2 1954 S.C.R. 587. before the Courts on the ground of infringement of the fundamental rights under Art. 14, 19 and 31, and by the addit ion of certain Acts in the Ninth Schedule a challenge to those Acts that they infringed any fundamental rights in Part III companyld number be entertained. But the amendments made in Art. 3 1 were number given any retrospective operation. The result was that in cases where acquisition was made pursuant to the statutes enacted before April 27, 1955, the law declared in Mrs. Bela Banerjees case 1 and Subodh Gopal Boses case 2 companytinued to apply . In State of Madras v. D. Namasivaya Mudaliar and Others 3 this Court held that the Madras Lignite, Acquisition of Land Act 1953, which came into force on August 20, 1953 in so far as it purported to provide for award of companypensation for companypulsory acquisition of land, which was number to include any rise in value between a fixed date and the date of issue of the numberification under S. 4 1 of the Land Acquisition Act and denied companypensation for the value of number- agricultural improvements since that fixed date, was invalid as infringing the guarantee under Art. 31 2 of the Constitution before it was amended. In N. B. jeejeebhoys case 4 this Court held that ascertainment of companypensation on the basis of the value of the lands acquired as on January 1, 1948, and number as on the date on which the numberification under s. 4 of the Land Acquisition Act was issued under the provisions of the Land Acquisition Bombay Amendment Act, 1948, was arbitrary and violated S. 29 9 2 of the Government of India Act, 1935, relating to companypensation. In N. B. Jeejeebhoys case 4 the Court was dealing with a pre-Constitution statute and it was held that the principle on which companypensation was to be paid under S. 299 2 of the Government of India Act, 1935, and Art. 31 2 of the Constitution, were the same, and a different interpretation giving a more restricted meaning to S. 299 2 of the Government of India Act, 1935, companyld number be given. In Union of India v. Kamlabai Harjiwandas Pareskh and others 5 it was again held by this Court that companypensation admissible under the Requisitioning and Acquisition of Immovable Property Act, 1952, enacted on March 14, 1952, at the market value of the property at the date of acquisition or twice the market value of the property at the time of requisitioning of that property under r. 75-A 1 of the Defence of India Rules, whichever was less, was void as infringing Art. 31 2 of the Constitution. These three cases were decided, following the principle of Mrs. Bela Banerjees case 3 , in respect of the Acts enacted before the Constitution Fourth Amendment Act, 1955. 1 1964 S.C.R. 558 3 1964 6 S.C.R. 936. 5 1968 1 S.C.R. 463. 2 1954 S.C.R. 587. 4 1965 1 S.C.R. 636. Counsel for the respondent urged that the amendment to the Constitution has by the Fourth Amendment Act made numbersubs- tantial difference in, the companycept of companypensation as a just equivalent or just recompense for the property of which the owner is deprived, and any scheme or principle of payment of companypensation to a person deprived of property which does number adequately companypensate him for the loss of property by awarding to him a just recompense at the date of expropriation must be deemed void. Before companysidering this part of the argument, it is necessary to refer to one other Constitutional Amendment. By the Constitution Seventh Amendment Act, 1956, which came into force on November 1, 1956, Entries 33 of List I and 36 of List II were deleted from the Seventh Schedule and Entry 42 of List III was amended and number reads-Acquisition and requisitioning of property. The effect of that amendment is that the power of acquisition and requisitioning of property falls in the companycurrent list and it makes numberreference to the principles on which companypen- sation for acquisition or requisitioning is to be determined. Reverting to the amendment made in cl. 2 of Art. 31 by the Constitution Fourth Amendment Act, 1955, it is clear that adequacy of companypensation fixed by the Legislature or awarded according to the principles specified by the legislature for determination is number justiciable. it clearly follows from the terms of Art. 31 2 as amended that the amount of companypensation payable, if fixed by the Legislature, is number justiciable, because the challenge in such a case, apart from a plea of abuse of legislative power, would be only a challenge to the adequacy of companypensation. If companypensation, fixed by the Legislature-and by the use of the expression companypensation we mean what the Legislature justly regards as proper and fair recompense for companypulsory expropriation of property and number something which by abuse of legislative power though called companypensation is number a recompense at all or is something illusory-is number justiciable, on the plea that it is number a just equivalent of the property companypulsorily acquired, is it open to the Courts to enter upon an enquiry whether the principles which are specified by the Legislature for determining companypensation do number award to the expropriated owner a just equivalent ? In our view, such an enquiry is number open to the Courts under- the statutes enacted after the amendments made in the Constitution by the Constitution Fourth Amendment Act. If the quantum of companypensation fixed by the Legislature is number liable to be canvassed before the Court on the ground that it is number a just equivalent, the principles specified for determination of companypensation will also number be open to challenge on the plea that the companypensation determined by the application of those principles is number a just equivalent. The right declared by the Constitution guaran 7 Sup CI/69-5 tees that companypensation shall be given before a person is, companypulsorily expropriated of his property for a public purpose. What is fixed as companypensation by statute, or by the, application of principles specified for determination of companypensation is guaranteed it does number mean however that something fixed or determined by the application of specified principles which is illusory or can in numbersense be r egarded as companypensation must be upheld by the Courts, for, to do so, would be to grant a charter of arbitrariness, and permit a device to defeat the companystitutional guarantee. But ,compensation fixed or determined on principles specified by the Legislature can-not be permitted to be challenged on the somewhat indefinite plea that it is number a just or fair equivalent. Principles may be challenged on the ground that they are irrelevant to the determination of companypensation, but number on the plea that what is awarded as a result of the application of those principles is number just or fair companypensation. A challenge to a statute that the principles specified by it do number award a just equivalent will be in clear violation of the companystitutional declaration that inadequacy of companypensation provided is number justiciable. The true effect of the amended Art. 31 2 fell to be deter- mined for the first time before this Court in P. Vajravelu Mudaliars case 1 . In that case lands belonging to a person were numberified for acquisition for the purpose of housing schemes and proceedings in respect of companypensation payable to him in accordance with the provisions of the Land Acquisition Madras Amendment Act, 1961, were pending. The owner challenged the vires of the Land Acquisition Madras Amendment Act, 1961, on the ground that it infringed the fundamental rights under Arts. 14, 19 and 31 2 ,of the Constitution. The Act made provisions which departed from the Land Acquisition Act, 1894, in determining companypensation in three respects- 1 companypensation was to be determined on the basis of average market value of the land during five years immediately preceding the date of the numberification under S. 4 1 of the Land Acquisition Act or the market value on the date of the numberification whichever was less 2 the solarium payable to the owner for companypulsory acquisition was to be 5 of the market value and 3 that the owner was number to get any companypensation for the suitability of the land for use other than the use to which it was put on the date of publication of the numberification i.e. potentiality of the land was to be discarded. This Court held that in making this three-fold modification in the application of the Land Acquisition Act for determining companypensation payable the statute did number infringe the guarantee companytained in Art. 31 2 . It only specified certain principles for determination of companypensation. Those principles may result in inadequacy of companypensation, but did number companystitute fraud on power and therefore the Amending 1 1965 1 S.C.R. 614. Act did number offered Art. 31 2 of the Constitution. But Subba Rao, J.1 in delivering the judgment of the Court observed If the definition of companypensation and the question of justiciability are kept distinct, much of the cloud raised will be dispelled. Even after the amendment, provision for companypensation or laying down of the principles for determining the companypensation is a companydition for the making of a law of acquisition or requisition The fact that Parliament used the same expressions namely, companypensation and principles as were found in Art. 31 before the Amendment is a clear indication that it accepted the meaning given by this Court to those expression in Mrs. Bela Banerjees case. It follows that a Legislature in making a law. of acquisition or requisition shall provide for a just equivalent of what the owner has been deprived of or specify the principles for the purpose of ascertaining the just equivalent of what the owner has been deprived of. . . . It will be numbericed that the law of acquisition or requisition is number wholly immune from scrutiny by the companyrt. But what is excluded from the companyrts jurisdiction is that the law cannot be questioned on the ground that the companypensation provided by that law is number adequate. It will further be numbericed that the clause excluding the jurisdiction of the companyrt also used the word companypensation indicating thereby that what is excluded from the companyrts jurisdiction is the adequacy of the companypensation fixed by the Legislature a more reasonable interpretation is that neither the principles prescribing the just equivalent number the just equivalent can be questioned by the companyrt on the ground of in adequacy of the companypensation fixed or arrived at by the working of the principles. At p. 629, he summarised the legal position as follows If the question pertains to the adequacy of companypensation, it is number justiciable if the companypensation fixed or the principles evolved for fixing it disclose that the legislature made the law in fraud of powers in the sense we have explained, the question is within the jurisdiction of the Court. These observations were however, number necessary for the purpose of the decision in P. Vajravelu Mudaliars case 1 . The Court held that the Amending Act did in fact specify principles for ascertaining the value of the property acquired and the principles were number irrelevant in the determination of companypensation 1 1865 S.C.R. 614. if there was inadequacy in the companypensation awarded by the application of those principles it was number open to question in view of the express provision made in the last clause of Art. 31 2 . In our judgment, the observation made by the Court that Art. 31 2 as amended means that neither the principles prescribing the just equivalent number the just equivalent can be questioned by the Courts on the ground of inadequacy of the companypensation fixed or arrived at by the working of the principles needs to be clarified. If by that observation it is intended that the attack on the principles specified for determining companypensation is excluded only when it is founded on a plea of inadequacy of companypensation, a restricted meaning is given to Art. 31 2 which practically nullifies the amendment. Whatever may have been the meaning of the expression companypensation under the unmended article 31 2 , when the Parliament has expressly enacted under the amended clause that numbersuch law shall be called in question in any companyrt on the ground that the companypensation provided by that law is number adequate, it was intended clearly to exclude from the jurisdiction of the Court an enquiry that what is fixed or determined by the application of the principles specified as companypensation does number award to the owner a just equivalent of what he is de- prived. Any other view is companytrary to the plain words of the amendment it is also companytrary to the ultimate decision of the Court in P. Vajravelu Muddliars case 1 that the principles specified by the Court which did number award what may be called a just equivalent were still number open to question. In our view, Art. 31 2 as amended is clear in its purport. If what is fixed or is determined by the application of specified principles is companypensation for companypulsory acquisition of property the Courts cannot be invited to determine whether it is a just equivalent of the value of the property expropriated. In P. Vajravelu Mudaliars case 1 the Court held that the principles laid down by the impugned statute were number open to question. That was sufficient for the purpose of the decision of the case and the other observations were number necessary for deciding that case, and cannot be regarded as a binding decision. In the Metal Corporation Ltd.s case 2 the facts Were that the Metal Corporation of India Acquisition of Undertaking Act 1965, was enacted for acquiring in the public interest, the undertaking of the Metal Corporation of India- The Act provided that the Corporation was to vest in the Central Government on the companymencement of the Act and that in the absence of an agreement between the Government and the Corporation, companyn- 1 1965 1 S.C.R. 614. 2 1967 1 S.C.R. 25S. pensation payable to the Corporation was to be an amount equal to, the sum total of the value of the properties and assets of the Corporation on the date of the companymencement of the Act calculated in accordance with the provisions of Paragraph II of the Schedule to the Act, less the liabilities on the said date, calculated in accordance with the provisions of Paragraph HI of the Schedule. One of the clauses laying down principles of companypensation, viz., clause b of Paragraph 11 was in two parts. The first part pro- vided for the valuation of plant, machinery or other equipment which had number been worked or used and was in good companydition, and the second part provided for the valuation of any other plant, machinery or equipment. The former, according to the Schedule, had to be valued at the actual companyt incurred by the Corporation in acquiring them, and the latter at the written down value determined in accordance with the provisions of the Income-tax Act, 1961. The validity of the Act was challenged, and this Court held that the Act companytravened Art. 31 2 of the Constitution and was therefore void. The judgment of the Division Bench is open to review by this Court. The Court after setting out the principles laid down by this Court in Mrs. Bela Banerjees case 2 D. Namasivaya Mudaliars case 3 and N. B. Jeejeebhoys case 3 observed at p. 264 . - - - the relevant aspect of the legal position evolved by the said decisions may be stated thus Under Art. 31 2 of the Constitution, numberproperty shall be companypul- sorily acquired except under a law which provides for companypensation for the property acquired and either fixes the amount of companypensation or specifies the principles on which, and the manner in which, companypensation is to be determined and given. The second limb of the provision says that numbersuch law shall be called in question in any companyrt on the ground that the companypensation provided by the law is number adequate. If the two companycepts, namely, companypensation and the jurisdiction of the companyrt are kept apart, the meaning of the provisions is clear. The law to justify itself has to provide for the payment of a just equivalent to the land acquired or lay down principles which will lead to that result. If the principles laid down are relevant to the fixation of companypensation and are number arbitrary, the adequacy of the resultant product cannot be questioned in a companyrt of law. The validity of the principles, judged by the above tests, falls within judicial scrutiny, and if they stand the tests, the adequacy of the product falls outside its jurisdiction. 1 1954 S.C.R. 558. 3 1965 4 S.C.R. 6361 2 1964 6 S.C.R. 936, The Court then proceeded to hold that the two principles laid down in cl. b of Paragraph II of the Schedule to the Act i that companypensation was to be equal to the companyt price in the case of unused machinery in good companydition and ii written down value as understood in the Income-tax law was to be the value of the used machinery, were irrelevant to the fixation of the-value of the machinery as on the date of acquisition. We are unable to agree with that part of the judgment. The Parliament had specified the principles for determining companypensation of the undertaking of the companypany. The principles expressly related to the determination of companypensation payable in respect of unused machinery in good companydition and used machinery. The principles were set out avowedly for determination of companypensation. The principles were number irrelevant to the determination of companypensation and the companypensation was number illusory. In our judgment, the Metal Corporation of India Ltd.s case 1 was wrongly decided and must be overruled. Turning to the Bombay Town Planning Act, 1955, it was clear that the Legislature has specified principles for determina- tion of companypensation which has to be adjusted in determining the amount of companytribution. The principle for determination of companysation cannot be said to be irrelevant, number can the companypensation determined be regarded as illusory. Being a principle relating to companypensation, in our judgment, it was number liable to be challenged. If what is specified is a principle for determination of companypensation, the challenge to that principle on the ground that a just equivalent of what the owner is deprived is number provided is excluded by the plain words of Art. 31 2 of the Constitution. It was urged that in any event the statute which permits the property of an owner to be companypulsorily, acquired by payment of market value at a date which is many years before the date on which the title of the owner is extinguished is unreasonable. This Court has, however held in Smt. Sitabati Debi and Anr. v. State of West Bengal 2 that a law made under cl. 2 of Art. 31 is number liable to be challenged on the ground that it imposes unreasonable restrictions upon the right to hold or dispose of property within the meaning of Art. 19 1 f of the Constitution. In Smt. Sitabati Debis case 2 an owner of land whose property was requisitioned under the West Bengal Land Requisition and Acquisition Act, 1948, questioned the validity of the Act by a writ petition filed in the High Court of Calcutta on the plea that it offended Art. 19 1 f of the Constitution. This Court unanimously held that the validity of the Act relating to acquisi- 1 1967 1 S.C.R. 255. 2 1967 2 S.C.R. 949. 37 1 tion and requisition cannot be questioned on the ground that it offended Art. 19 1 f and cannot be decided by the criterion under Art. 19 5 . Again the validity of the statute cannot depend upon whether in a given case it operates harshly. If the scheme came into force within a reasonable distance of time from the date on which the declaration of intention to make a scheme was numberified, it companyld number be companytended that fixation of companypensation according to the scheme of s. 67 per se made the scheme invalid. The fact that companysiderable time has elapsed since the declaration of intention to make a scheme cannot be a ground for declaring the section ultra vires. It is also companytended that in cases where numberreconstituted plot is allotted to a person and his land is wholly appropriated for a public purpose in a scheme, the owner would be entitled to the value of the land as, prevailing many years before the extinction of interest without the benefit of the steep rise in prices which has taken Place all over the companyntry. But if s. 71 read with s. 67 lays down a principle of valuation, it cannot be struck down on the ground that because of the exigencies of the scheme, it is number possible to allot a reconstituted plot to an owner of land companyered by the scheme. Our attention was invited to ss. 81 and 84 of the Bombay Town Planning Act, 1955. Section 81 merely provides that the land needed for the purpose of a town planning scheme or development plan shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. This provision only declares what is implicit in the scheme of the Act. Section 84 only companytemplates a special class of cases in which the land which is included in a town planning scheme is needed by the State Government for a public purpose other than that for which it is included in the scheme. In such a case the State Government may make a declaration to that effect and the provisions of the Land Acquisition Act, 1894, as modified the Schedule apply. We are number companycerned in this case with any such numberification issued by the Government, number has it any relevance to the question in issue. One more companytention which was apparently number raised on be- half of the first respondent before the High Court may be briefly referred to Counsel companytends that ss. 53 and 67 in any event infringe Art. 14 of the Constitution and were on that account void. Counsel relies principally upon that part of the judgment in P. Vajravelu Mudaliars case 1 which deals with the infringement of the equality clause of the Constitution by the impugned Madras Act. Counsel submits that it is always open to the State 1 1965 1 S.C.R. 614. Government to acquire lands for a public purpose of a local authority and after acquiring the lands to vest them in the local ,authority. If that be done, companypensation will be payable under the Land Acquisition Act, 1894, but says companynsel, when land is acquired 1 for a public purpose of a local authority under the provisions of the Bombay Town Planning Act the companypensation which is payable is determined at a rate prevailing many years before the date on which the numberification under S. 4-of the Land Acquisition Act is issued. The argument is based on numbersolid foundation. The method of determining companypensation in respect of lands which are subject to the town-planning schemes is prescribed in the Town Planning Act. There is numberoption under that Act to acquire the land either under the Land Acquisition Act or under the Town Planning Act. Once the draft town planning scheme is sanctioned, the- land becomes subject to the provisions of the Town Planning Act, and the final town- planning scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the lands needed for a public purpose vest in the local authority. Land required for any of the purposes of a town-planning scheme cannot be acquired, otherwise than under the Act, for it is settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or number at all Taylor v. Taylor . Again it cannot be said that because it is possible for the State, if so minded, to acquire lands for a public purpose of a local authority, the statutory effect given to a town-planning scheme results in discrimination between persons similarly circumstanced. In Vajravelu Mudaliars case 2 the Court struck down the acquisition on the ground that when the lands are acquired by the State Government for a housing scheme under the Madras Amending Act, the claimant gets much smaller companypensation than the companypensation he would get if the land or similar lands were acquired for the same public purpose under the Land Acquisition Act, 1894. It was held that the discrimination between persons whose lands were acquired for housing schemes and those whose lands were acquired for other public purposes companyld number be sustained on any principle of reasonable classification founded on intelligible differenti a which had a rational relation to the object sought to be achieved. One broad ground of distinction between P. Vajravelu Mudaliars case 2 and this case is clear the acquisition was struck down in P. Vajravelu Mudaliars case 2 because the State Government companyld resort to one of the two methods of acquisition-the Land Acquisition Act, 1894, and the Land Acquisition Madras Amendment Act, 1961-and numberguidance 1 1875 1 Ch.D. 426. 2 1965 1 S.C.R. 614. was given by the Legislature about the statute which should be resorted to in a given case of acquisition for a housing scheme. Power to choose companyld, therefore, be exercised arbitrarily. Under the Bombay Town Planning Act 1955, there is numberacquisition by the State Government of land needed for a town-planning scheme. When the town Planning, Scheme companyes into operation the land needed by a local authority vests by vitrue of s. 53 a and that-vesting for purposes of the guarantee under Art. 31 2 is deemed companypulsory acquisition for a public purpose. To lands which are subject to the scheme, the provisions of ss. 53 and 67 apply, and the companypensation is determined only in the, manner prescribed by the Act. There are therefore two separate provisions, one for acquisition by the State Gov- ernment, and the other in which the statutory vesting of land operates as acquisition for the purpose of town- planning by the local authority. The State Government can acquire the land under the Land Acquisition Act, and the local authority only under the Bombay Town Planning Act. There is numberoption to the local authority to resort to one or the other of the alternative methods which result in acquisition. The companytention that the provisions of ss. 53 and 67 are invalid on the ground that they deny the equal protection of the laws or equality before the laws must,, therefore, stand rejected. The High Court has apparently number companysidered the other ar- guments which were advanced at the Bar, and has observed that it was number necessary to companysider those other companytentions raised in the petition. As the petition has number been heard by the High Court in respect of the other companytentions which the first respondent may choose to raise, we set aside the order passed by the High Court declaring s. 53 read with s. 67 insofar as it authorised acquisition of land by the local authority under a town-planning scheme, as violative of Art. 31 2 of the Constitution, and the acquisition of the first respondents land under the City Wall Improvement Town Planning Scheme No. 5 as invalid. The appeal is allowed. The case is remanded to the High Court with a direction that it be dealt with and disposed of according to law. The order of companyts passed by the High Court is set aside. There will be numberorder as to companyts in this Court.	Case appeal was accepted by the Supreme Court
ORIGINAL JURISDICTION Writ Petition No. 327 of 1968. Petition under Art 32 of the Constitution of India for a writ in the nature of habeas companypus. K. Garg, for the petitioners. Debabrata Mukherjee, P. K. Chakravarti and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Ramaswami J. In this case the petitioners have obtained a rule upon the respondent, viz., the State of West Bengal, to show cause why a writ of habeas companypus should number be issued under Art. 32 of the Constitution directing their release from detention under orders passed under s. 3 2 of the Preventive Detention Act, 1950 Act, IV of 1950 hereinafter called the Act . Cause has been shown by Mr. Debabrata Mukherjee and other companynsel on behalf of the respondent to whom numberice of the rule was ordered to be given. At the companyclusion of the hearing of this petition on 15th January, 1969, we directed the release of these petitioners and said that the reasons would be furnished later. We shall number proceed to state. those reasons. As regards petitioner No. 2 Sk. Abdul Karim, the order of detention was made on 17th February, 1968 by the District Magistrate of Hooghly and reads as follows No. 230-C Dated 17-2-1968 Whereas I am satisfied with respect to the person known as Sk. Abdul Karim, son of late Sk. Nasiruddin of Mathurdangi, Police-station Chanditala District Hooghly, that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity, it is necessary. so to do, I therefore in exercise of the powers companyferred by section 3 2 of the PreventiveDetention Act, 1950 make this order directing that the said Sk. Abdul Karim be detained. Given under my hand and seal of office. Sd - Illegible 17-2-68 District Magistrate, Hoogly. On the same date the following grounds of detention were companymunicated to the detenu You are being detained in pursuance of a detention order made under sub-section 2 of section 3 of the Preventive Detention Act, 1950 Act IV of 1950 , on the following grounds That on 2-2-68, at 19.05, hours you were arrested while carrying 60 kgs. of rice without authority from Dankuni Bazar towards Dankuni Rly. Station with a view to despatch the same by train into the statutory rationing areas of Calcutta and Howrah. That on 9-2-68 at 14.00 hrs. you were found to detrain at Dankuni Rly. Station with a bag companytaining one maund of rice from Burdwan-Howrah local train. That on 10-2-68 at 13.55 hrs. you with 2/3 other smugglers were found to carry rice 20 kgs. each, by train from Dankuni Rly. Station towards Sealdah and you all detrained at Baranagore off side platform with unauthorised stocks of rice. That on 11-2-68 at 08,45 hrs. you with other smugglers were found carrying 15 kgs. of rice each by train towards Howrah from Dankuni Rly. Station. You are hereby informed that you may make a representation to the State Government, as early as possible, on receipt of the detention order and that such representation should be addressed to the Asstt. Secy. to the Govt. of West Bengal, Home Deptt. Special Section, Writers Buildings, Calcutta, and forwarded through the Superintendent of the Jail in which you are detained. You are also informed that under section 10 of the Preventive Detention Act, 1950 Act IV of 1950 , the Advisory Board shall hear you in person and if you desire to be so heard by the Advisory Board, you should intimate such desire in your representation to the State Government. Sd - Megible 17--2-68 District Magistrate, Hooghly-. On 21st February, 1968, Sk. Abdul Karim made a representation, to the State Government against the order of detention. On 22nd April, 1968, the Advisory Board made a report under section 10 of the Act stating that there was sufficient cause for detention of Sk. Abdul Karim. On 24th July, 1968, the Governor of West Bengal companyfirmed the detention order under section 11 1 of the Act. Section 3 of the Act provides 3. 1 The Central Government or the State Government may- If satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to- the defence of India, the relations of India with foreign powers or the security of India, or the security of the State or the maintenance of public order, or the maintenance of supplies and services essential to the companymunity, or b if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 XXXI of 1946 , that with a view to regulating his companytinued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. When any order is made or approved by the State Government under this section, the State Government shall, as soon as may be, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the state Government having bearing on the necessity for the order. Sub-sections 2 and 3 of this section empower the District Magistrate, Sub-Divisional Magistrate or the Commissioner of Police in a Presidency Town to exercise the power companyferred by and make the order companytemplated in sub- section 1 , but with the ,,qualification that any order made thereunder must be reported ,forthwith to the Government of the State to which the officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order. Sub-section 3 further provides that numbersuch order made after the companymencement of the Preventive Detention Second Amendment Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government. Section 7 of the Act reads 7. 1 When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but number later than five days from the date of detention, companymunicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. Nothing in sub-section 1 shall require the authority to disclose facts which it companysiders to be against the public interest to disclose. Section 8 provides for companystitution of one or more Advisory Boards for the purposes of this Act. Section 9 states In every case where a detention order has been made under this Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board companystituted by it under section 8 the grounds on which the order has beep made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer, also the report by such officer, under sub-section 3 of section 3. Section 11 enacts 1. 1 In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. In any case where the Advisory Board has reported that there is in its opinion numbersufficient cause for the detention of the person companycerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. Section 11A states 11A. 1 The maximum period for which any person may be detained in pursuance of any detention order which has been companyfirmed under section 1 1 shall be twelve months from the date of detention. Notwithstanding anything companytained in subsection 1 every detention order which has been companyfirmed under section 1 1 before the companymencement of the Preventive Detention Second Amendment Act, 1952, shall unless a shorter period is specified in the order, companytinue to remain in force until the 1st day of April, 1953, or until the expiration of twelve months from the date, of detention, whichever period of detention expires later. The provisions of sub-section 2 shaft have effect numberwithstanding anything to the companytrary companytained in, section 3 of the Preventive Detention Amendment Act, 1952 XXXIV of 1952 , but numberhing companytained in this section shall affect the power of the appro priate Government to revoke or modify the detention order at any earlier time. Section 13 provides for revocation of a detention order and reads as follows - 13. 1 Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 X of 1897 a detention order may at any time be revoked or modified- a numberwithstanding that the order has been made by an officer mentioned in the sub- section 2 of section 3, by the State Government to which that officer is subordinate or by the Central Government and b numberwithstanding that the order has been made by a State Government or by the Central Government. The revocation or expiry of a detention order shall number bar the making of a fresh detention order under section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made. The Preventive Detention Act Act No. 4 of 1950 was enacted by Parliament by virtue of the power companyferred on it by Art. 22-clause 7 of the Constitution read with entries 9 of List 1 and 3 of List III of the Seventh Schedule. Article 22 4 , 5 , 6 and 7 provides as follows 22. No law providing for Preventive detention shall authorise the detention of a person for a longer period than three months, unless- a an Advisory Board companysisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention Provided that numberhing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause b of clause 7 or b such, person is detained in accordance with the provisions of a law made by Parliament under subclauses a and b of clause 7 . When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Nothing in clause 5 shall require the authority making any such order as is referred to in that clause to disclose facts which such authority companysiders to be against the public interest to disclose. Parliament may by law prescribe- a the circumstances under which, and the class or classes of cases in which, a per-son may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of the Advisory Board in accordance with the provisions of sub-clause a of clause 4 b the maximum period for which any person may in any class or classes of cases be detained under any law for preventive detention and c the procedure to be followed by an Advisory Board in an inquiry under sub-clause a of clause 4 . It was argued by Mr. Garg that the representations of the petitioners were number companysidered by the respondent Government of West Bengal, but were merely forwarded by the respondent to the Advisory Board without any companysideration. It was companytended that the detention of the petitioners was bad in law, because there,was a failure on the part of the Government to companysider the representations submitted by the petitioners before forwarding them to the Advisory Board. In the first companynter-affidavit of the respondent it was asserted by Mr. Monoranjan Dey that there was numberrequirement of law which companypelled the companysideration by the State Government of the detenus representation before being forwarded to the Advisory Board for companysideration. In the second companynteraffidavit Mr. Monoranjan Dey said that for securing an unprejudiced and impartial companysideration of the representation of the petitioner by an independent Statutory Authority, the State Government refrained at that stage from expressing its views on-the representations to the Advisory Board. The companynter- affidavits of the respondents are some what vague and the allegation of the petitioner has number been categorically denied. Mr. Debabrata Mukherjee, however, said in the companyrse of argument that the case may be decided on the footing that the representations were number companysidered by the State Government before sending them to the Advisory Board., It was companytended on behalf of the respondent that there was numberobligation on the State Government to companysider the repre- sentations since the Advisory Board had been companystituted under section 8 of the Act to companysider the case of the detenus and to report to the State Government whether there was sufficient cause for their detention. The question involved in this case depends upon the companystruction of Art. 22 5 of the Constitution which has already been reproduced. Though the Constitution has recognised the necessity of laws as to preventive detention, it has also provided certain safeguards to mitigate their harshness by. placing fetters on the legislative power companyferred on this topic. Article 22 lays down the permissible Emits of legislation empowering preventive detention. Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and if such requirements are number observed the detention infringes the fundamental right of the detenu guaranteed under Articles 21 and 22 of the Constitution. The said requirements are 1 that numberlaw can provide for detention for a period of more than three months unless the sufficiency for the cause of the detention is investigated by an Advisory Board within the said period of three months 2 that the State law cannot authorise detention beyond the maximum period prescribed by Parliament under the powers given to it in Art. 22 clause 7 3 that Parliament also cannot make a law authorising detention for a period beyond three months without the intervention of an Advisory Board unless the law companyforms to the companyditions laid down in clause 7 of Art. 22 4 provision has also been made to enable Parliament to prescribe the procedure to be followed by Advisory Boards. Apart from these enabling and disabling provisions certain procedural rights have been expressly safegarded by clause 5 of Art. 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22 5 does number expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But,it is necessarily implicit in the language of Art.22 5 that the State Government to whom there presentation is made should properly companysider the representation as expeditiously as possible. The companystitution of an Advisory Board under section 8 of the Act does number relieve the State Government from the legal obligation to companysider the representation of the detenu as soon as it is received by it. On behalf of the respondent it was said that there was numberexpress language in Art. 21 5 requiring the State Government to companysider the representation of the 1 detenu. But it is a necessary implication of the language of Art. 22 5 that the State Government should companysider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate ,action. In our opinion, the companystitutional right to make a representation guaranteed by Art. 22 5 must be taken to include by necessary implication the companystitutional right to a proper companysideration of the representation by the authority to whom it is made. The right of representation under Art. 22 5 is a valuable companystitutional right and is number a mere formality. It is, therefore, number possible to accept the argument of the respondent that the State Government is number under a legal obligation to companysider the representation of the detenu or that the representation must be kept in companyd storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the viewpoint companytended for by the respondent is companyrect, the companystitutional right under Art. 22 5 would be rendered illusory. Take for instance a case of detention of a person on account of mistaken identity. If the order of detention has been made against A and a different person B is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Government should wait for the report of the Advisory Board before releasing the wrong person from detention. It is obvious that apart from the procedure of reference to the Advisory Board, the State Government has ample power under section 13 of the Act to revoke any order of detention at any time. If the right of representation in such a case is to be real and number illusory, there-is a legal obligation imposed upon the State Government to companysider the representation and to take appropriate action thereon. Otherwise the right of representation companyferred by Art. 22 5 of the Constitution would be rendered nugatory. The argument of Mr. Debabrata Mukherjee as regards the companystruction of Art. 22 5 cannot also be companyrect for another reason. Under Art. 22 clause, 4 of the Constitution, it is open to Parliament to make a law providing for preventive detention for a period of less, than three months without the cause of detention being investigated by an Advisory Board. It is clear that the right of representation companyferred by clause 5 of Art. 22 does number depend upon the duration of period of detention. Even if the period of detention is less than three months, the detenu has a companystitutional right of representation. It is also important to numberice that under Art. 22 7 Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. It cannot possibly be argued that if Parliament makes a law companytemplated by Art. 22 7 of the Constitution, the detaining authority is under numberlegal obligation to companysider the representation made by the detenu under Art. 22 5 . Faced with this difficulty companynsel on behalf of the respondent companyceded that in a case where the detention is for a period of less than three months or in a case companytemplated by Art 22 7 , the State Government will be legally obliged to companysider the representation of the detenu. But it was suggested that in a case where a reference has to be made to the Advisory Board it was number necessary for the State Government to companysider the representation. We are unable to accept this argument as companyrect. There is numbersuch dichotomy in the scheme of Art. 22 5 of the Constitution and there is numberreason why it must be interpreted in a different manner for the two classes of detenus. It is manifest that the right under Art. 22 5 to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence or number-existence of an Advisory Board. The companystitution of an Advisory Board for the purpose of reporting whether a person should or should number be detained for a period of more than three months is a very different thing from a right of companysideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to companysider the representation is different from the obligation of the Advisory Board to companysider the representation later on at the time of hearing the reference. It follows, there-fore, that even if reference is to be made to the Advisory Board under section 9 of the Act, the appropriate Government is under legal obligation to companysider the representation of the detenu before such a reference is made. In the present case, Sk. Abdul Karim has alleged that his representation was number companysidered by the State Government before it was forwarded to the Advisory Board. This allegation is number companytroverted in the companynter-affidavit filed on behalf of the respondent. What is at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirement is number companyplied with, the order of detention would be rendered illegal. Accordingly, the order of detention dated 17-2-1968 made against petitioner No. 2, Sk. Abdul Karim and the subsequent order of the Governor of West Bengal dated 24th April, 1968 companyfirming the order of detention must be held to be illegal and ultra vires and petitioner No. 2 Sk, Abdul Karim was entitled to be released. In the case of petitioners Nos. 5, Nirmal Chandra Jana, No. 6 Sk. Ibrahim and No. 8 Nur Mohd. the order of detention suffers from the same legal defect as the order of detention in the case of petitioner No. 2, Sk. Abdul Karim. For the reasons already stated we hold that the order of detention and the order of companyfirmation under section 11 of the Act in the case of petitioners Nos. 5, 6 and 8 were also illegal and ultra vires and the petitioners were companysequently entitled to be released.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal to. 1527 of 1968. Appeal under s. 123 of the Jammu and Kashmir Representation of the People Act, 1957 from the Judgment and order dated April 29, 1968 of the Jammu and Kashmir High Court in Election, Petition No. 33 of 1967. N. Bhalgotra and S. S. Khanduja, for the appellant. K. Garg, S. C. Agarwal, D. P. Singh and S. Chakravarti, for the respondent. The Judgment of the Court was delivered by Bachawat, J. This appeal is directed against a judgment of a Single Judge of the High Court of Jammu and Kashmir dismissing an election petition for setting aside the election of the respondent Jagat Ram Aryan to the legislative assembly of the State of Jammu Kashmir from the Bhaderwah scheduled cast assembly companystituency. The last date for filing the numberination papers was January 20, 1967. The date of scrutiny of numberination papers was January 23, 1967. The date of poll was February 21, 1967. The date of companynting and declaration of result was March 1, 1967. Several candidates filed their numberination papers from this companystituency. The candidates were 1 Jagat Ram Aryan, Faquir Chand, 3 Narain Dass, 4 Nikka Ram, 5 Bhagat Ram, 6 Om Parkash and 7 Swami Raj. The first five filed their numberination papers on January 23, 1967 before the Assistant Returning Officer, Kahan Singh, a Tehsildar of Bhaderwah. On scrutiny of the numberination pipers, the Returning Officer Abdul Gani accepted as valid the numberination papers of Jagat Ram and Faquir Chand and rejected the numberinations papers of the remaining candidates for various reasons. At the poll the companytest was between Jagat Ram, the companygress candidate and Faquir Chand, the National Conference candidate. Respondent Jagat Ram having secured larger number of votes was declared elected. The appellant, a voter in the companystituency, filed the election petition for setting aside the respondents election on the ground that the numberination papers of Narain Dass, Nikka Ram and Bhagat Ram were improperly rejected. The High Court found. that the numberination paper of Bhagat Ram was properly rejected and this finding is numberlonger challenged. The numberination paper of Nikka Ram was rejected on three grounds 1 he did number make and subscribe the oath or affirmation as required by s. 51 a of the Jammu Kashmir Constitution 2 he was number a member of a scheduled caste and 3 his fathers name was number companyrectly shown in the electoral rolls. The numberination paper of Narain Dass was rejected on two grounds 1 he did number make and subscribe the oath or affirmation as required by s. 51 a and 2 he was number a member of a scheduled caste. The High Court found that both Narain Dass and Nikka Ram were members of the scheduled caste Megh. It also held that the error in the electoral roll with regard to the name of Nikka Rams father was number a ground for rejecting his numberination paper having regard to s. 44 4 of the J. K. Representation of the People Act, 1957. The High Court also rejected the addi- tional companytention that Narain Dass had number made a deposit of Rs. 125 in companyformity with s. 45 2 of the Act. All these findings are numberlonger challenged. The only point number in issue is whether Narain Dass and Nikka Ram made and subscribed the oath or affirmation as required by s. 51 a of the J. K. Constitution. Section 51 a provides A person shall number be qualified to be chosen to fill a sent in the Legislature unless he- a is a permanent resident of the State, and makes and subscribes before some person authorised in that behalf by the Election Commission of India an oath or affirmation according to the form set out for the purpose in the Fifth Schedule. The Returning Officer and the Assistant Returning Officer were authorised in this behalf by the Election Commission of India by numberification No. 3/4 J K/65 as the persons before whom the oath or affirmation companyld be made and subscribed. The prescribed form of oath or affirmation to be made by a candidate of the State legislature is I, A.B., having been numberinated as a candidate to fill a seat in the Legislative Assembly, or legislative Council do swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of the State as by law established and that I will uphold the sovereignty and integrity of India. Section 44 of the J. K. Representation of the People Act, 1957 provides for presentation of numberination papers and prescribes certain requirements for a valid numberination. Section 45 provides for deposits. Section 46 deals with numberice of numberinations. and the time and place for their scrutiny. Section 47 2 a reads - The returning officer shall then examine the numberination papers and shall decide all objections which may be made to any numberination, and may, either on such objection or on his own motion, after such summary en- quiry, if any, as he thinks necessary, reject any numberination on any of the following grounds a that on the date fixed for the scrutiny of numberinations the candidate either is number qualified or is disqualified for being chosen to fill the seat under any of the provisions of sections 51 and 69 of the Constitution and Part VI of this Act Form 2A of the J. K. Representation of the People Conduct of election and election petition Rules, 1957 prescribes the form of numberination paper for election to the legislative assembly. It is companymon case that along with their numberination papers. both Narain Dass and Nikka Ram filed oath forms signed by them. The appellants case is that at the time of the presentation of their numberination papers both Narain Dass and Nikka Ram made, oaths and signed the oath forms in the presence of the Assistant Returning Officer. In support of this case, the appellant examined Narain Dass, Nikka Ram, Abdul Qayum and Abdul Rehman. The respondents case is that Narain Dass and Nikka Ram did number make or subscribe any oath or affirmation before the Assistant Returning Officer, that the oath forms had been filled up and signed before they were presented to him and were number signed in his. presence. In support of his case the respondent examined Kahan Singh, the Assistant Returning Officer and Abdul Gani, the Returning Officer. The High Court accepted the respondents case. It should be remembered that the requirement of, making and subscribing an oath or affirmation was inserted in s. 51 a of the J. K. Constitution by the Constitution Sixth Amendment Act, 1965. There is ground for believing that Narain Dass and Nikka Ram were number aware of this provision and for this reason they omitted to make or subscribe any oath or affirmation before the Assistant Returning Officer. Our attention was drawn to Instruction No. 7 7 in Chapter II at p. 19 of the Handbook for Returning Officers, issued by the Election Commission, India, for General Elections, 1967. The aforesaid instruction was as follows - The oath or affirmation has first to be made and then signed by the candidate before the authorized officer. It should be borne in mind that mere signing on the paper on which the form of oath is written out is number sufficient. The, candidate must make the oath before the authorised officer. Accordingly he will ask the candidate to read aloud the oath or affirmation in English or the regional language and then to sign and date the paper on which the bath or affirmation is written. in the case of illiterate persons who want to companytest elections, and who cannot properly make and subscribe the oath or affirmation the authorised officer, should read out the prescribed oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form on which the oath is printed or cyclostyled in token of his having subscribed the oath. The authorised officer should endorse on this paper that the oath or affirmation has been made and subscribed before the candidate on that day. He will immediately furnish to the candidate a certified companyy thereof keeping a companyy for your record. The candidate will produce this companyy as evidence before you at the time of scrutiny of numberination papers. This companyy will be given to the candidate forthwith without his applying for it, number any fee be charged for it. Kahan Singh the Assistant Returning Officer was number companyversant with these instructions. He did number ask either Narain Dass or Nikka Ram to read the oath or to sign the oath form in his presence. But the breach of these instructions does number entitle them to say that they had made and subscribed the oath before the Assistant Returning Officer when in fact they did number make or subscribe the oath before him. It is admitted by the appellant that the oath forms filed by Narain Dass and Nikka Ram did number bear any endorsement of the Assistant Returning Officer, stating that the oath or affirmation had been made and subscribed before him number was any certificate of such endorsement furnished to them. The absence of the endorsement on the oath forms tend to suggest that numberoath or affirmation was made and subscribed by them before the Assistant Returning Officer. Neither Narain Dass number Nikka Ram companyld produce before the Returning Officer Abdul Gani any evidence of their making and subscribing the oath or affirmation. Abdul Gani gave them an opportunity to produce affidavits in proof, of this,, fact but they did number file any affidavit or any other evidence before him. The appellant examined witnesses to prove that attempts were made to file such affidavits, but the High Court rightly rejected the testimony of these witnesses. The materials,. on the record companyroborate the testimony of Kahan Singh, the Assistant Returning Officer that Narain Dass and Nikka Ram did number sign the oath forms in his presence and did number make the oath or affirmation before him. Narain Dass and Nikka Ram were Jana Sangh candidates. Abdul Qayum and Abdul Rehman were their party men. All of them were interested witnesses. Having regard to all the materials on the record it is impossible to prefer their testimony to that of Kahan Singh. In agreement with the High Court we hold that neither Narain Dass and Nikka Ram, signed the oath forms before the Assistant Returning Officer number did they make the oath or affirmation before him. On January 23, 1967 both Narain Dass and Nikka Ram filed with the Assistant Returning Officer signed and filled up oath forms along with their numberination papers. In our opinion this, was number sufficient companypliance with the requirement of s. 5 1 a . In Pashupati Nath v. Harihar Prasad 1 this Court held that-the numberination paper was liable to be rejected under s. 3 6 2 a of the Representation of the People Act, 1951 companyresponding to s. 47 2 a of the J. K. Representation of the People Act,, 1957 if the qualification required by Art. 173 a of the Constitution companyresponding to s. 51 a of the J. K. Constitution did number exist on the date of scrutiny of numberinations. In that case numbersigned oath form was attached to the numberination paper or filed before the date fixed for scrutiny. In the present case signed oath forms along with numberination papers were filed with the Assistant Returning Officer on January 23, 1967 before the date fixed forscrutiny. But this fact makes numberdifference. They neither made number subscribed the oath or affirmation before the Assistant Returning Officer as required by s. 51 a . On the date fixed for the scrutiny of numberinations they were number qualified to be chosen to, 1 1968 2 S.C.R. 812, A.I.R. 1968 S.C. 1064. fill the seat in the legislature under s. 51 a of the J. Constitution and their numberination papers were liable to be rejected under s. 47 2 a of the J. K. Representation of the People Act, 1957. In the result, the appeal is dismissed. There will be numberorder as to companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 697 of 1966. Appeal by special leave from the judgment and order dated November 9, 1964 of the Allahabad High Court in First Appeal No. 257 of 1953. C. Manchanda, S. k. Mehta and K. L. Mehta, for the appellant. Bishan Narain and Harbans Singh, for the respondent. The Judgment of the Court was delivered by Shah, J. On March 11, 1950, Manohar Lal s o Jai Jai Ram companymenced an action in the Court of the Subordinate Judge, Nanital, for a decree for Rs. 10,139/12/- being the value of timber supplied to the defendant-the National Building Mate- rial Supply, Gurgaon. The action was instituted in the name of Jai Jai Ram Manohar Lal which was the name in which the business was carried on. The plaintiff Manohar Lal subscribed his signature at the foot of the plaint as Jai Jai Ram Manohar Lal, by the pen of Manohar Lal, and the plaint was also similarly verified. The defendant by its written statement companytended that the plaintiff was an unregistered firm and on that account incompetent to sue. On July 18, 1952, the plaintiff applied for leave to amend the plaint. Manohar Lal stated that the business name of the plaintiff is Jai Jai Ram Manohar Lal and therein Manohar Lal the owner and proprietor is clearly shown and -named. It is a joint Hindu family business and the defendant and all knew it that Manohar, Lai whose name is there along with the fathers name is the proprietor of it. The name is number an assumed or fictitious one. The plaintiff on those averments applied for leave to describe himself in the cause title as Manohar Lal proprietor of Jai Jai Ram Manohar Lal and in paragraph 1 to state that he carried on the business in timber in the name of Jai Jai Ram Manohar Lal. Apparently numberreply was filed to this application by the defendant. The Subordinate Judge granted leave to amend the plaint. He observed that there was numberdoubt that the real plaintiff was Manohar Lal himself, that it was Manohar Lal who intended to file and did in fact Me the action, and that the amendment was intended to bring what in effect had been done in companyformity with what in fact should have been done. The defendant then filed a supplementary written statement raising two additional companytentions- 1 that Manohar Lal was number the sole owner of the business and that his other brothers were also the owners of the business and 2 that in any event the amendment became effective from July 18, 1952, and on that account the suit was barred by the law of limitation. The Trial Judge decreed the claim for Rs. 6,568/6/3. Against that decree an appeal was preferred to the High Court of Allahabad. The High Court being of the view that the action was instituted in the name of a number-existing person and Manohar Lal having failed to aver in the application for amendment that the action was instituted in the name of Jai Jai Ram Manohar Lal on account of some bona fide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend of the plaint. The High Court after making an extensive quotation from the judgment of this Court in purushottam Umedbhai and Company v. Messrs. Manilal and Sons 1 observed that the action companyld number be instituted by the plaintiff in the business name it should have been instituted in the name of the Karta of the Hindu undivided family in his representative capacity or else all the members of the joint family must join as plaintiffs. The Court then observed The suit instituted by the joint Hindu family business in the name of an assumed business title was a suit by a person, who did number exist and was, therefore, a nullity. Hence there companyld be numberamendment of the description of such a plaintiff who did number exist in the eye of law. The companyrt below was in obvious error in thinking otherwise and allowing the name of Manohar Lal to be added as proprietor of the original plaintiff Jai Jai Ram Manohar Lal, which was neither 1 1961 1 S. C. R. 982. a legal entity number an existing person who companyld have validly instituted the suit. The High Court was also of the opinion that the substitution of the name of Manohar Lal as a plaintiff during the pendency of the action took effect from July 18, 1952, and the action must be deemed to be instituted on that date the amendment companyld number take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. The plaintiff has appealed to this Court with special leave. The order passed by the High Court cannot be sustained. Rules of procedure are intended to, be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may number be companypensed for by an order of companyts. However negligent or careless may have been the first omission, and, however late the proposed amend- ment, the amendment may be allowed if it can be made without injustice to the other side. In Amulakchand Mewaram and others v. Babulal Kanalal Taliwala 1 , Beaumont, C.J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed the question whether there should be an amendment or number really turns upon whether the name in which the suit is brought in the name of a number-existent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and numberamendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject numberdoubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be companypensated for by companyts. In Amulakchand Mewarams case 1 a Hindu undivided family sued in its business name. It was number appreciated at an early stage of the suit that in fact the firm name was number of a partnership, but was the name of a joint Hindu family. An objection was raised by the defendant that the suit as filed was number maintainable. An application to amend, the plaint, by substituting the names of the three members of the joint family for the name of the family firm as plaintiffs, was rejected by the Court 1 35 Bom. L. R. 569. Sup CI/69-3 of First Instance. In appeal the High Court observed that a suit brought in the name of a firm in a case number within 0. 30 C.P. Code being in fact a case of misdescription of existing persons, leave to amend ought to have been given. This Court companysidered a somewhat similar case in Purushottam Umedbhais case 1 . A firm carrying on business outside India filed a suit in the firm name in the High Court of Calcutta for a decree for companypensation for breach of companytract. The plaintiff then applied for amendment of the plaint by describing the names of all the partners and striking out the name of the firm as a mere misdescription. The application for amendment was rejected on the view that the original plaint was numberplaint in law and it was number a case of misnomer or misdescription, but a case of a number- existent firm or a number-existent person suing. In appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure did number permit a suit to be brought in the firm name should properly be companysidered a case of description of the individual partners of the business and as such a misdescription, which in law can be companyrected and should number be companysidered to amount to a description of a number-existent person. Against the order of he High Court an appeal was preferred to this Court. This Court observed at p. 994 Since, however, a firm is number a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is number extended to persons who are doing business as partners outside India. In their case they still have to sue in their individual names. If, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known companylectively as a firm. It seems, therefore, that a plaint filed in a companyrt in India in the name of a firm doing business outside India is number by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure. in these circumstances, a civil companyrt companyld permit, under the provisions of s. 153 of the Code or possibly under 0. VI, r. 17, about which we say numberhing , an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties. 1 1961 1 S. C. R. 982. These cases do numbermore than illustrate the well-settled rule that all amendments should be permitted as may be necessary for the purpose of determining the real question in companytroversy between the parties, unless by permitting the amendment injustice may result to the other side. In the present case, the plaintiff was carrying on business as companymission agent in the name of Jai Jai Ram Manohar Lal. The plaintiff was companypetent to sue in his own name as Manager of the Hindu undivided family to which the business belonged he says he sued on behalf of the family in the business name. The observations made by the High Court that the application for amendment of the plaint companyld number be granted, because there was numberaverment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is numberrule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has numberpower to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is number governed by any such narrow or technical limitations. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, numberquestion of limitation arises the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted. In our view, the order passed by the Trial Court in granting the amendment was clearly right, and the High Court was in error in dismissing the suit on a technicality wholly unrelated to the merits of the dispute. Since all this delay has taken place and companyts have been thrown away, because the defendant raised and persisted in a plea which had numbermerit even after the amendment was allowed by the Trial Court, he must pay the companyts in this Court and the High Court. The appeal is allowed and the decree passed by the High Court is set aside. It appears that the High Court has number dealt with the appeal on the merits.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 575 and 576 of 1966. Appeals by special leave from the judgment and order dated October 5, 1963 of the Patna High Court in Misc. Judicial Cases Nos. 1274 and 1275 of 1960. Narasaraju, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellants in both the appeals . C. Chagla and U. P. Singh, for the respondent in, both the appeals . The Judgment of the Court was delivered by Shah, J. The respondent Ramniklal Kothari carried on busi- ness in diverse lines as a partner in four different firms. He received from time to time income from the different registered firms as his share of profits. For the assessment year 1955-56 the respondent declared his share of profits from the four firms at Rs. 77,027/- and he claimed an allowance of Rs. 13,283/- being payment of salary and bonus to staff, expenses for maintenance and depreciation of motor-car, travelling expenses and interest. The Income-tax Officer, Hazaribagh, allowed the claim for interest as a permissible deduction and disallowed the rest. In the view of the Income-tax Officer since the respondent did number carry on any independent business, the amount, except interest, were number claimable by the respondent on his own account if at all, the amounts should have been claimed as business ex incurred in the accounts of the four firms. For the assessment year 1956-57 the respondent declared Rs. 53,540 as his share of the profits in the four firms and claimed an aggregate amount of Rs. 19,380 as admissible deduction on various grounds including Rs. 1,956 as interest paid by him. The Income-tax Officer allowed the claim for interest and disallowed the rest of the claim. The Appellate Assistant Commissioner companyfirmed the orders of the Income-tax Officer. But the Income-tax Appellate Tribunal set aside the orders passed by the Income-tax Officer and remanded the cases for examination of the nature of expenditure claimed to have been incurred by the respondent. In the view of the Tribunal share of the profits received by the respondent from the firms was taxable as business income, and appropriate deductions admissible under s. 10 2 of the Income-tax Act, 1922, were allowable in companymuting the taxable income of the respondent, The Tribunal then referred the following question in the two cases to the High Court of Patna for opinion under S. 66 1 of the Indian Income-tax Act, 1922 Whether the expenses incurred by the assessee who was number carrying on any independent business of his own , in earning income from various firms in which he was a partner, are allowable in law as deductions ? The High Court of Patna answered the reference in favour of the respondent. With special leave granted by this Court, these two appeals have been preferred by the Commissioner of Incometax. Where a person carries on business by himself or in partner- ship with others, profits and gains earned by him are income liable to be taxed under S. 10 of the Indian Income-tax Act, 1922. Share in the profits of a partnership received by a partner is profits and gains of business carried on by him and is on that account liable to be companyputed under s. 10, and it is a matter of numbermoment that the total profits of the partnership were companyputed in the manner provided by s. 1 0 of the Income-tax Act and allowances admissible to the partnership in the companyputation of the profits and gains were taken into account. Income of the partnership carrying on business is companyputed as business income. The share of the partner in the taxable profits of the registered firms liable to be included under s. 23 5 a ii in his total income is still received as income from business carried on by him. Counsel for the Commissioner accepted, and in our judgment companynsel was right in so doing, that the share of the respondent from the profits of the firm was income from business carried on by the partner. Business carried on by a firm is business carried on by the partners. Profits of the firm are profits earned by all the partners in carrying on the business. In the individual assessment of the partner, his share from the firms business is liable to be taken into account under S. 10 1 . Being income from business, allowances appropriate under S. 10 2 are admissible before the taxable income is determined. Section 23 5 a ii provides that the share of the partner in the profits and gains of a registered firm shall be included in the total income of the partner and S. 16 1 b requires that salary, interest, companymission or other remuneration payable by the firm beside the share in the balance of profits is to be taken into account in determining the total income. But it is number thereby implied that expenditure Properly allowable in earning the profits, salary, interest, companymission or other remuneration is number to be allowed in determining the taxable total income of the partner. The receipt by the partner is business income for the, purpose of s.10 1 , and being business income, expenditure necessary for the purpose of earning that income and appropriate allowances are deductible therefrom in determining the taxable income of the partner. The legal principles which we have endeavoured to set out are well settled by several decisions. In Shantikumar Narottam Morarji v. Commissioner of Income-tax, Bombay City 1 the High Court of Bombay held that it is number companyrect as a general legal proposition that a, partner in a registered firm is number entitled to claim any deduction against the share of the profits included in his total income, the share having been arrived at on the assessment of the firm with regard to its profits. It would be open to the partner to claim a deduction provided he satisfies the taxing authority that such deduction represents necessary expenditure, the expenditure being incurred in order to enable him to earn the profits which- are being subjected to tax. In Basantlal Gupta v. Commissioner of Income-tax, Madras 2 the High Court of Madras held that in determining the income of an assessee who is a partner, deduction under s. 10 2 of the Income-tax Act may be made from his share of income in the firm even after the share has been ascertained. An allowance under s. 10 2 will be permissible in proper cases even after the share has been ascertained if the expenditure sought to be deducted was incurred by the partner solely and exclusively for the purpose of earning his share in the income of the firm. In a case decided by the High Court of Patna in Jitmal Bhu- ramal v. Commissioner of Income-tax, Bihar Orissa 3 a Hindu undivided family which was a partner in a firm claimed that the salary paid to its members for attending to the business of the firm was incurred as a matter of companymercial expediency and for the purpose of earning profits from the partnership business. The Court held that in the assessment of the Hindu undivided family the expenditure would be properly claimed as an allowance under s. 10 2 xv of the Indian Income-tax Act, 1922. Jitmal Bhuramars case 4 was brought in appeal to this Court see Jitmal Bhuramal v. Commissioner of Income-tax, Bihar Orissa 4 . It was observed by this Court that a Hindu undivided family-will be allowed to deduct salary paid to members of the family, if the payment is made as a matter of companymercial or business expediency, but the service rendered must be to the family in relation to the business of the family. Counsel for the Commissioner relied upon an unreported judgment of the High Court of Calcutta in Messrs. Iswardas Subh- 1 27 I.T.R. 69. 2 50 I.T.R. 541. 3 37 I.T.R. 528. 4 44 I.T.R. 887. sc. karan v. Commissioner of Income-tax, West Bengal 1 . In that case a Hindu undivided family entered into a partnership agreement with third parties for the purpose of carrying on a rice mill business. It was number possible for any of the members of the family to attend personally to that business and, therefore, the family employed a Munim to look after its interest. Salary paid to the Munim was claimed as an allowance in determining the taxable income out of the share of the partnership income. Chakravartti, J., delivering the judgment of the Court was of the opinion that since the Munim did number look after the interest of the assessee in the firms business, but only as a servant of the assessee, the amount paid to the Munim was number an allowance admissible in determining the taxable income. In any event, observed the learned Chief Justice, the profits which have companye to the assessee from the partnership have companye as net profits, and after they have so companye, there cannot be any further deduction on account of expenditure incurred number by the partnership but by the partner who received the share or incurred on any account whatsoever. We are unable to agree with the view expressed by the learn- ed Chief Justice. The case was apparently number fully argued and companynsel for the assessee companyceded that the amount paid to the Munim was number a permissible deduction in assessing the taxable income of the family out of the share of the profits received from the firm.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 683 of 1966. Appeal by special leave from the judgment and order dated January 3, 1965 of the Kerala High Court in Appeal Suit No. 86 1960. V. Gupte and A. S. Nambiar, for the appellants. Sarjco Prasad, P. Kesava Pillai, M. R. K. Pillai and Lily Thomas, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an, appeal by special leave from a judgment of the Kerala High Court by which the suit instituted by the respondent for recovery of properties described in Schedule A of the plaint and for mesne profits etc. was decreed in reversal of the decree of the trial companyrt, dismissing the suit. Uthupu Mani who died in the year 1943 had three sons. The eldest son Uduppu died sometime between 1929 and 1935. The second son Joshua is the respondent herein, the appellants being the third son Mani Mani and Mariamma their mother and the widow of Uthupu. Uthupu left some daughters also and appellant No. 3 Mani Achamma is one of the daughters. The companytroversy in the suit out of which the appeal has arisen was companyfined to a residential house in an area of 10 cents in Kottayam town. This property along with several other properties originally belonged to Uthupu who made certain settlements followed by wills. The first settlement was made in the year 1102 ME companyresponding to 1927 AD when Uduppu was alive and Mani Mani was number born. On October 9, 1935 by means of another registered document Exh. A called Udampady Uthupu settled properties thus Those companyprised in A Schedule were given to Mariamma, in B Schedule to Joshua and in C Schedule to Mani. The Schedules Contained the following properties To Mariamma A Schedule Building companystructed as Hall and the Cart-shed on 2 cents. To Joshua B Schedule Storied building and 30 cents garden land. To Mani Mani C Schedule Four rooms facing West and 36 cents of garden land. It appears and it has been so found that mutations were effected of the properties so settled in favour of the donees. Later on Uthupu executed a will which he put in an envelope and deposited it in the office of the District Registrar, Kottayam in January 1943. He executed a second will in April 1943 and kept it in custody of the District Registrar. He executed a third will Exh. 3 on May 31, 1943 which was his last will and testament. In this will he made a mention of the two settlements and the two previous wills and declared that the last will would be final and operative. His other declarations and statements in the will Exh. 3 will be presently companysidered as the entire companytroversy in the present litigation centers on a companyrect assessment and appraisal of their true scope and effect. It may be mentioned that by this will he left five items of properties to Joshua. These items included the properties in C Schedule which had been given to Mani by the settlement of 1935 and the cartshed oil two cents of land companytained in Schedule A which had been given to Mariamma by that settlement. There was numberspecific mention in the will Exh. 3 to the B Schedule properties which had been settled on Joshua in 1935. In 1955 Joshua filed a suit laying claim to the B Schedule properties settled on him in the year 1935. His case was founded principally on the allegation that B Schedule properties which had been settled on him in 1935 vested in him by virtue of the settlement and he was the owner thereof and that the five items of properties which were left by the will Exh. 3 were quite independent of and separate from the aforesaid B Schedule properties. In other words he asserted that he had a right under the will to get the five items bequeathed to him therein in addition to the B Schedule properties which had been settled on him in the year 1935 and which companyld number form the subject matter of any bequest by Uthupu by reason of the said settlement. The position taken up on behalf of Mariamma, Mani etc.-the defendants--was that the plaintiff had accepted the benefit under the will by taking the five items of properties bequeathed to him thereby which included the properties originally allotted under the settlement of 1935 to Mariamma and Mani. He had thus exercised his right of election to take the properties under the will and was precluded from asserting any right to properties given to him under the settlement of 1935. A number of issues were framed on the pleadings of the par- ties. The main question for companysideration, however, was whether the settlement of 1935 had been given effect to and whether the plaintiffs suit merited dismissal on account of the applicability of the doctrine of election embodied in s. 180 of the Indian Succession Act. The trial companyrt held that the settlement of 1935 had been given effect to and mutations had been duly made in the revenue register in accordance with the settlement deed. It was found that the plaintiff had obtained title to and possession of the SupCI/69-6 suit properties companyprised in B Schedule in the settlement of 1935. The suit was dismissed on the ground that the will Exh. 3 clearly showed that the testator purported to cancel the arrangement by the deed of settlement of 1935 and had made bequests under the will to the plaintiff of some of the properties which had been settled on Mariamma and Mani in the year 1935. This attracted the rule companytained in S. 180 of the Succession Act and since the plaintiff had elected to accept the benefit under the will he was number entitled to claim any right on the basis of the deed of settlement of 1935. The High Court acceded to the argument pressed on behalf of Joshua who was the appellant before it that on a proper reading of the will it companyld number be held that the testator professed to dispose of the suit properties which had been gifted to the plaintiff by means of the settlement deed of 1935. The High Court was influenced by the fact that there was numberspecific mention of these properties in the will and according to it mere general words of disposition companyld number be taken to companytain -an intention to deal with the properties belonging to a third party, namely, the plaintiff. The following part of the judgment may be reproduced Having due regard to these passages in the various text-books based upon judicial decisions and which have been placed before me by Mr. T. S. Krishnamoorthy lyer and Mr. M. U. Issac in my view, the decision rendered by the teamed Subordinate Judge that section 180 of the Indian Succession Act applied and that the appellant has elected to take the benefit under the will and therefore he cannot claim any further benefits on the basis of Ex. A, cannot certainly be sustained. So far as I companyld see, there is numberspecific disposition of the property already given to the plaintiff under Ex. A, by the father in Ex. 3. No doubt the father has dealt with an item which was given under Ex. A to the first defendant and a part of the item given to the 2nd defendant under Ex. A in Ex. 3. If at all the question of the doctrine of ,election and the applicability of section 180 of the Indian Succession Act companyes into play, in my view, the election will really have to be made, number, by the plaintiff, but by really defendants one and two. As the applicability of the doctrine of the rule of election will depend on a companyrect and true reading of the will Exh. 3 we proceed to numberice the main recitals and other prominent features to be found in it. The testator in the very beginning referred to the two settlements made by him in the years 1927 and 1935 and the two wills executed by him in the year 1943 which were deposited with the District Registrar, Kottayam. He said that by the first will which he had executed he had invalidated the two deeds of settlement. He then made the second will as he thought that some changes were necessary. The third will, Exh. 3 , was made because he felt pity for Joshua whom he had apparently left numberor very little property by -his previous wills. This is what the testator said But, since there originated in me an idea, on seeing the desperate look and repentant attitude of my son Joshua, that it is highly necessary to nullify certain historic statements made in the previous will and also to alter the companyditions, such as share of my assets will number be given to Joshua and to his children in case he begets any, laid down by me owing to the ill-will I had towards Joshua, the eldest among the male children I have at present and towards the members of his wifes house because of certain reasons which I dont number purport to describe herein, this will is executed again afresh and this alone will companye into force after my life-time. He further said that he had seven children alive at the time when the will was made, namely two sons and five daughters out of whom two were married. He directed that after his death his wife Mariamma would take ,he entire income from his properties for meeting family expenses and payment of revenue dues etc. Then he made dispositions about payments in cash on the occasion of the marriages of his other daughters, with the exception of Achamma, who was described to be weak in health, and in his opinion, should number companytract matrimony. An amount of Rs. 3,000/- was to be deposited in her name which she was entitled to withdraw if she was married. During the period she remained unmarried she was entitled to take interest on that deposit for personal expenses. He gave other directions about arrangements for her residence etc. in case she remained un- married. Then he proceeded to make the provision about bequests in these words Though I had provided in my previous will that my eldest son Joshua shall have only some right in the nature of a life interest over my assets in respect of some petty items of profits Therefore I have forgiven him and I hereby allow him to enjoy for ever the immovable properties described hereunder and my younger son Mani Mani shall alone be the sole heir of the remaining entire assets belonging to me. But, my two sons shall become entitled to the properties allotted to them only after my two daughters are married and the deposit is made in Achammas name and all the litigations in which I am a party are ended and till that time my wife Mariamma shall take and companyserve all the profits as described above in the status of an undivided family. The only other declaration or statement in the will which deserves numberice is the following This will is executed by resolving as these and totally changing all the deeds registered by me prior to this and the Wills kept in custody and this Will alone shall, unless 1 act otherwise, be and ought to be in force in future. Now it is quite clear that the testator was somehow under the impression that he was companypetent to cancel and revoke number only the previous wills but also the two settlements including the one made in the year 1935. It appears that although by the registered deed of 1935 he had gifted certain properties to his wife and two sons he thought that he companyld undo what he had done by making a will by which he left virtually numberproperty to Joshua since he was annoyed with him. That is apparently the reason why he clearly stated in the will Exh. 3 in the very beginning that he had executed a will on 9th Makarom this year in accordance with law, invalidating the above two deeds. He relented in favour of Joshua and that is the reason why he made the will Exh. 3 but his state of mind companytinued to be the same, namely, he companysidered that he was fully companypetent and entitled to cancel all previous settlements and wills and start, as if it were, on a clean slate. The detailed bequests which he made Exh. 3 indicate that he meant to dispose of the entire estate including the properties which had been the subject matter of the settlement made in the year 1935. There are two strong indications in the will Exh. 3 of his having dealt with the entire property which he thought he companyld dispose of or in respect of which he companyld make bequests and leave legacies on the footing that numbertitle had passed to any of the donees under the settlement of 1935. The first is the recital both in the beginning and towards the companycluding part of Exh. 3 that he had cancelled the previous settle- ments and wills and that the only document which would govern the disposition of properties would be Exh. 3. Even if it be assumed, as has been suggested, by learned companynsel for Joshua -respondent-that the declaration about invalidating the two deeds of settlement was companyfined to the first will executed in January 1943, the statement made towards the companyclusion of the will Exh. 3 leaves numberdoubt that the testator sought to revoke number only the previous wills but also the registered deeds which clearly meant the deeds of settlement executed in 1927 and 1935 respectively. The second significant fact is that the testator purported to give to Joshua five items of property which included certain properties which had been given by the settlement of 1935 to Mariamma and Mani. If the testator did number want to make any disposition of those properties which formed the subject matter of gift in 1935 there was numberreason why he should have given to Joshua properties which had been gifted to Mariamma and Mani. All this companyld have happened only if the testator was treating the settlement of 1935 as number-existent having been revoked by him. We are satisfied that a companyrect reading of the will Exh. 3 yields the only result that the testator Uthupu treated the entire properties which had formed the subject matter of gift or otherwise as his and which companyld be disposed of by him as he liked. The High Court was in error in disagreeing with the trial companyrt on this matter. The argument of learned companynsel for the respondent is that the testator predominently intended to make better provision for Joshua with whom he had been annoyed for various reasons and whom he had left companyparatively less or numberproperty by the wills executed prior to Exh. 3. It is suggested that the testator companyld number have intended to have taken away what had already been gifted to Joshua in the year 1935 of which mutation had taken place and possession had passed. It is further pointed out that the testator did number specifically say that the properties which had been gifted to Joshua in 1935 were number being left by the will Exh. 3 to Mani. A great deal of reliance has been placed on Ike statement in the text books on which the High Court relied and certain decisions for the view that numbercase for election can arise where the testator does number dispose of the properties in question specifically and has merely used general words of devise. In such circumstances, it has been stated, the testator should be taken to have disposed of only that property which was his own and which he was entitled to deal with and bequeath in law. It is urged that, in the present case, the testator had already made a valid and legal settlement in 1935 of the suit property. He companyld number have thus dealt with or bequeathed that property and in the absence of express and specific mention in Exh. 3 that he was doing so the rule of election would number be attracted. The circumstances in which election takes place are set out in s. 180 of the Indian Succession Act. According to its provisions, where a -person by his will professes to dispose of some- thing which he has numberright to dispose of, the person to whom the thing belongs shall elect either to companyfirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will. The English law, however, applies the principle of companypensation also to election. It means the electing legatee has to companypensate the disappointed legatee out of the property given to him. As pointed out in the Indian Succession Act by N. C. Sen Gupta, p. 295, the rule which has been embodied in s. 180 does number recognise the principle of companypensation. Under its provisions if the legatee has been given any benefit under the will and his own property has also been disposed of by that very will he must relinquish all his claims under the will if he chooses to retain his property. It is number disputed, in the present case, that if the testator has, by Exh. 3, disposed of the property which had been gifted to Joshua the rule embodied in s. 180 would become applicable and Joshua cannot take the property which had been gifted to him if he has chosen to retain the property bequeathed to him by the will. The question is whether the testator having omitted to state in Exh. 3 that he was giving away the properties which had been gifted to Joshua in the year 1935 to Mani to whom only a residuary bequest of the entire remaining assets had been made the principle of election will become inapplicable. Our attention has been invited on behalf of Joshua to the following observation of the Master of Rolls in Miller v. Thurgood 1 If a testator, having an undivided interest in any particular property, disposes of it specifically, and gives to the companyowner of the property a benefit under his will, the question of election arises. But if he disposes of it, number specifically, but only under general words, numberquestion of election arises. But as pointed out in para. 1097, p. 592, Halsburys Laws of England, Vol. 14, in order to raise a case of election under a will it must be clearly shown that the testator intended to dispose of the particular property over which he had numberdisposing power. This intention must appear on the face of the will either by express words or by necessary companyclusion from the circumstances disclosed by the will. The presumption, however, is that a testator intends to dispose of his own property and general words will number usually be companystrued so as to include other property. In Whitley v. Whitley 1 the wife of the testator was entitled to a share of the produce of the R. estate, which had been directed to be sold. By 1 10 L. T. R. 255. 2 54 E. R. 1104. his will the testator gave all his share, estate and interest in the R. estate to his daughter and benefit out of his own estate to his widow. It was held that the will raised a case for election as against the widow. The Master of the Rolls Sir John Pomilly said that the testator intended to dispose of the property by will which was number his but belonged to his wife and she having taken and enjoyed the benefit provided for her under his will must be companysidered as having elected. The property, must, therefore go as if it had been the testators property. This case illustrates how the rule of election has been applied where, even though, general words had been used but by necessary companyclusion from the circumstances disclosed by the will it was interred that the testator intended to dispose of the property which belonged to his wife and number to him. According to the footnote in Halsburys Laws of England, Vol. 14 supra , in the case of a will one may even gather an intention by the testator to include property belonging to another in a gift of residue for it is necessary to companystrue a will as a whole. Reference has been made to Re Allens Estate, Prescott v. Allen and Beaumont 1 , where a gift of the residue of my property was companystrued as the residue of the testatoes ostensible property. A fairly strict approach in such cases has been indicated by Chitty J., in Re Booker, Booker v. Booker 2 in these words .lm15 A great safeguard in applying that doctrine is this-that you are number merely to strain words to make them include -that which does number belong to the testator but you must be satisfied beyond all reasonable doubt that it was his intention to include that which was number his own, and that you cannot impute to him after having read his will any other intention. It is thus necessary to look at the will and read it carefully which has been done by us and we have number manner of doubt that Uthupu, the testator, intended to include properties gifted to Joshua by the settlement of 1935 in the bequest which he made to Mani of the entire residue.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 302 of 1966. referred to. Appeal by special leave from the judgment and order dated November 13, 1962 of the Madhya Pradesh High Court, Gwalior Bench in Misc. Civil Petition 64 of 1961.- Sen, P. W. Sahasrabudhe, A. G. Ratnaparkhi and S. V. Tambwekar, for the appellant. N. Shroff, for the respondent. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an order of the Madhya Pradesh High Court under Art. 227 of the Con- stitution refusing to quash an order made by the Board of Revenue of the State throwing out the appeal of the appellant on the ground that it was barred by time. The facts are as follows. The appellant was a Sardar and a Jagirdar in the former Gwalior State. His Jagir known as Pohari Jagir was resumed by the State on December 4, 1952 under the Madhya Bharat Abolition of Jagirs Act, 28 of 1951. He received a memorandum from the Jagir Commissioner on February 23. 1958 regarding the companypensation payable to him under s. 13 of the Act in respect of the resumption of his jagir. On February 24, 1958 he applied to the Jagir Commissioner, for a companyy of the 90 3 judgment. The memorandum received by him gave the total amount of companypensation determined and the deductions to be made therefrom. It did number companytain the, data forming the basis of the calculations number did it show how the authority disposed of the appellants claim to companypensation and made its own companyputation. At the hearing, a companyy of the judgment of the Jagir Commissioner running into twenty three pages was handed up to us giving full details of the claim and showing how the same were dealt with for fixing the amount payable to the appellant. It appears that the application of the appellant for a companyy of the judgment was returned to him on March 11, 1958 with an endorsement that the same companyld be had on payment of fees. On the very next day the appellant applied for a companyy of the judgment after paying the fees mentioned and a companyy of the judgment was given to him on March 18, 1958. The appellant preferred his appeal to the Board of Revenue on June 2, 1958. As already stated, the Board did number go into the merits of the case holding the appeal to be barred by time under the provisions of s. 29 of the Act. It is necessary to numbere a few of the provisions of the Madhya Bharat Abolition of Jagirs Act, 1951 hereinafter referred to as the Act to find out whether the appeal to the Board of Revenue was out of time. Under s. 3 of the Act the Government had to appoint a date for the resumption of all, jagir lands in the State, as soon as may be, after the companymencement of the Act. The companysequences of the resumption of the jagir land are given in s. 4. By the operation of that section the right, title and interest of every jagirdar and of every other person claiming through him in his jagir lands including forests, trees etc. whether being worked or mot, were to stand resumed to the State free of all encum- brances and certain other companysequences were to follow. Section 5 of the Act however enabled the Jagirdar to companytinue to remain in possession of lands personlly cultivated by him and of certain other items of property mentioned in cl. b of the said section. Under s. 8 the Government was to be liable to pay to every jagirdar whose jagir land was resumed under s. 3 such companypensation as would be determined in accordance with the principles laid down in Schedule 1. Under s. 12 every Jagirdar whose jagir land had been resumed under s. 3 was to file in the prescribed form within two months from the date of resumption, a statement of claim for companypensation before the Jagir Commissioner. Sub-s. 2 of the section prescribed the particulars which such statement of claim had to furnish. on receipt of a statement of claim under s. 12 or if numberstatement was received by him within the period fixed, it was the duty of the Jagir Commissioner to determine a the amount of companypensation payable to the Jagirdar under s. 8, b the amount recoverable from him under cl. e of sub-S. 1 of s. 4, c the amounts of the annual maintenance allowances payable to maintenance holders, if any, under s. 9 d the amounts payable annually to-the Zamindars of the Jagirdar, if any under s. 10 and e the amount payable to the companyharers of a Jagirdar, if any, under s. 11. The section casts a duty on the Jagir Commissioner to companymunicate his decision to the Government, the Jagirdar, the maintenance holders, the companysharers and the Zamindars, if any, as soon as may be practicable. Under s. 29 the Government or any person aggrieved by the decision of the Jagir Commissioner under ss. 4, 10, 11, 13 or 14 had the right to appeal to the Board of Revenue within 90 days from the date of the companymunication of such decision to it or him and the decision of the Board of Revenue was to be final. From the above provisions of the Act, it is amply clear that neither the Government number the Jagirdar number any person aggrieved by the decision of the Jagir Commissioner under s. 13 can file an appeal to the Board of Revenue to any purpose without a companyy of the judgment showing how the decision under s. 13 was arrived at. In this case, the memorandum of companypensation merely showed that a sum exceeding Rs. 17 lakhs had been determined as the amount payable to the appellant. The memorandum did number show how the same was companyputed or how the clam for companypensation preferred by the petitioner under various heads was dealt with In order that an appeal may be effective the appellant must be able to formulate his grounds for challenging the judgment which has gone against him. The question therefore arises as to whether the time taken in obtaining a companyy of the judgment which forms the basis of the decision in determining the companypensation can be excluded from the period of 90 days mentioned in s. 29 of the Jagirs Abolition Act. There is numberprovision in the Act which expressly empowers the Board of Revenue to entertain an appeal filed beyond the period of 90 days from the date of the companymunication of the decision under s. 13. Under s. 30 of the Act The Jagir Commissioner, or any other officer companyducting an enquiry under this Act, and the Board of Revenue and the Collector hearing appeals from the orders of the Jagir Commissioner or the Tahsildar, as the case may be, shall follow the procedure aapplicable to proceedings under the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007, so far as may be and shall have the same powers, in relation to proceedings before them as a revenue officer has in relation to original or appellate proceed- 90 5 ings, as the case may be, under the Act. hereinafter referred to as the Ryotwari Act . Section 34 of the Ryotwari Act provides Subject to the provisions of the Limitation Act in force for the time being regarding the extension and companyputation of the period of limitation - 1 numberappeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order companyplained of 2 Section 149 2 of the Ryotwari Act provides that Except where it is otherwise specially provided the general principles of law of Limitation for the time being in force in the United State regarding extension of the principles of limitation shall apply to claims made under this Act before a Revenue Officer. It is clear from the language of s.34 that in hearing an appeal under the Ryotwari Act the Board must guide itself by the provisions of the Limitation Act in force for extension and companyputation of the period of limitation. It would appear that s. 149 2 was aimed at giving a similar guide line to the Revenue Officer. To give the said interpretation to s. 149 2 it is necessary to read extension of the principles of limitation occurring therein as extension of the period of limitation for otherwise the section would be devoid of any meaning. The general principles of limitation are those companytained in the Limitation Act of 1908 which were in force at the date when the appeal was filed before the Board of Revenue. Section 3 of the Limitation Act, 1908 laid down that subject to the provisions companytained in ss. 4 to 25 inclusive , every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the First Schedule was to be dismissed although limitation had number been set up as a defence. Under s. 5 of the Limitation Act of 1908 an appeal companyld be admitted after the period of limitation prescribed therefor when the appellant satisfied the companyrt that he had sufficient cause for number preferring or making the application within such period. Under s. 29 2 of the Limitation Act Where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as it such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by the special or local law-- a the provisions companytained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are number expressly excluded by such special or local law and b the remaining provisions of this Act shall number apply. These sections go to show that unless excluded by the Jagirs Act or Ryotwari Act section 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of those Acts. It has been held by a Division Bench of the Madhya Pradesh High Court in Brijrajsingh v. The Board of Revenue and another 1 that the expression principles of limitation in s. 149 2 mentioned above should be companystrued as extension of the period of limitation. For the reasons given above, we are in agreement with the said companyclusion of the Madya Pradesh High Court. In our view, the word principle therein was inserted due to inept or careless drafting and what was meant was period and number principles. Even if we were to read the Statute as it is, the principle of the Limitation Act is to dismiss a suit appeal or application if filed beyond time but also to extend the time for filing an appeal if the delay is explained. That principle is clearly capable of extension in the present case. If sections 34 and 149 2 were applicable to the facts of the case before the Board of Revenue and we hold to that effect, the time spent in obtaining a companyy of the judgment formi ng the basis or giving the reasons of the decision should have been excluded in companyputing the period of 90 days under s. 29 of the Jagirs Act. The appellant was number guilty of any laches in his appeal to the Board of Revenue. He applied for a companyy of the judgment of the Jagir Com- missioner on the day next after companymunication to him of the order of the Jagir Commissioner. Even if the application was unaccompanied by any fees prescribed for the purpose, the Board of Revenue should have taken this fact into companysideration before holding the appellants appeal to be out of time. If the application for the companyy of the judgment made on the 24th February was in order, the appeal was in time. Even if the time taken in obtaining the companyy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellant was out by two days only in filing the appeal to the Board of Revenue. If the 1st of June 1958 which Misc. Civil Case No. 22/1962 decided on 18-3-63. 90 7 happened to be a Sunday be left out of companysideration, the appellant was out by one day only. As appears from the order dated September 28, 1961 the Board of Revenue refused to entertain the appeal on the ground of limitation without companysidering the question as to whether the appellant had made out a case for companydonation of delay, if any. In our view, the Board of Revenue had number acted judicially in throwing out the appeal. The High Court was therefore number right in upholding the order of the Board of Revenue which ignored the provisions of ss.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1702 of 1966. Appeal by special leave from the Award dated February 28, 1966 of the Labour Court, Delhi in W.J. No. 2 of 1964. B. Pal, O. C. Mathur and J. B. Dadachanji, for the appellant. K. Ramamurthi, Shyamala Pappu, J. Ramamurthi, M. Mohan, S. Khera, B. Thakur and Vineet Kumar, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal, by special leave, is directed against the award of the Labour Court, Delhi in a reference made to it under S. 17 2 of the Working Journalists Conditions of Service and Miscellaneous Provisions Act, 1955 referred to hereinafter as the Act. The relevant facts leading to the said reference may first be stated. By its letter dated January 16, 1953 the appellant-company appointed the respondent as a staff companyrespondent at Gauhati on a basic salary of Rs. 300 and dearness allowance at 40 thereof in addition to a fixed companyveyance allowance of Rs. 100 per month. Sometime thereafter the respondent was transferred to the companypanys branch office at Delhi where he worked as a special companyrespondent. By 1963 the remuneration payable to him came to Rs. 700 as basic pay, Rs. 497 as dearness allowance, Rs. 200 per month as car allowance in addition to a free telephone and free newspapers. On October 8, 1963, while he was on leave, the respondent tendered his resignation. On October 14, 1963 P. K. Roy, the companypanys General Manager, informed the respondent that his letter of October 8, 1963 companyld number be companysidered as one of resignation as under the companypanys rules he would have first to report on duty and then to give a numberice. On October 21, 1963, however, the companypany accepted the resignation with effect from that date and thereupon the respondent joined the Indian Express on October 23, 1963. Meanwhile, one V. G. Karnik, on behalf of the companypany, informed the respondent by his letter dated November 19, 1963 that in the absence of a proper numberice by him there companyld be numbertermination of employment and that your reported acceptance of another employment in the circum- stances is in companytravention of the terms and companyditions of service of this companypany. The respondent had, in the meantime, claimed companypensation for leave due to him, to which claim the said letter of Karnik replied that the companypanys rules did number permit any such companypensation where an employee had resigned. On November 21, 1963 the respondent wrote to the said Roy Ex. W/4 that 1 after he had tendered his resignation there was a discussion between them when the matter of acceptance of his resigna- tion was amicably settled and that it was thereafter that he joined the Indian Express, 2 the letter of Karnik that there was numbertermination of his employment was number companyrect, 3 after October 21, 1963 he had gone to the companypanys office to settle his accounts and companylect the dues payable to him asalso the letter of acceptance of his resignation but he was told that the accounts were number yet ready and he was number then paid even his salary and dearness allowance due upto October 20, 1965 although I bad asked for these amounts at least, 4 the letter accepting his resignation was held back until he was prepared to sign a document purporting to waive all my rights to leave salary which he had first refused to sign, 5 on receiving the said letter of Kamik he had thought necessary to get a written acceptance of resignation, that, as apprehended by him, that letter was handed over to him on that day only after he accepted a cheque for Rs. 2810.47 P. and had given receipt therefor in full and final settlement of all my claims and that he wanted to specify in that receipt that full and final settlement on his side did number include companypensation for one months leave due to him but the accountant did number allow him to do SO. The statement of account which was given to the respondent on November 21, 1963 and on which he signed the said receipt stated that he had received the said cheque in full and final settlement of all my claims against the companypany subject to the bonus for 1963 if declared and payable to me. The statement of -account mentioned Rs. 901-34 P. only as remuneration for 20 days of October 1963 on the basis of his monthly remuneration being Rs. 1,397, companyprised of Rs. 700 as basic salary, Rs. 497 as dearness allowance and Rs. 200 as car allowance. The statement of account thus shows that though he was on leave in October 1963, the companypany included the car allowance while calculating his wages due for these 20 days. But it also shows that numbercompensation for leave due to him was paid and further that in calculating the gratuity payable to him the monetary value of free telephone and free newspapers and the car allowance were number included as part of his wages. In reply to the respondents letter of November 21, 1963, the said Roy, by his letter of December 5, 1963, wrote that as the respondent had number taken away the companypanys letter of acceptance of resignation by the time Karnik addressed the said letter, Kamik was right on facts but, in view of the settlement of his affairs and the subsequent settlement of accounts, it was better to forget the past and part amicably. He also made it clear that the respondents claim for leave companypensation was number admissible under the companynpanys rules. The respondent thereafter applied to the Delhi Administration and the latter, as aforesaid, referred his claim to the Labour Court for adjudication. In his statement of claim before the Labour Court, the respondent claimed that the monthly wages payable to him were Rs. 700 basic, Rs. 497 as dearness allowance, Rs. 200 companyveyance allowance and Rs. 50 being the estimated value of the benefit of a free telephone and newspapers, aggregating Rs. 1,447 per month. He claimed gratuity companyputable on the basis of Rs. 1,447 as being his monthly wages, Rs. 1,447 as companypensation for the months leave, in all, Rs. 6,000.34 P. He did number deduct from the said claim the said amount of Rs. 2,810.47 P. as he had number encashed the cheque given to him against the receipt dated November 21, 1963. The companypany in its written statement denied the claim relying on the said receipt and further denied that the car allowance and the monetary value for the free telephone and newspapers companyld be included in the wages payable to the respondent either as due to him or for calculating gratuity. Before the Labour Court the companypany did number dispute the value of the benefit of the free telephone and newspapers estimated by the respondent, but it raised the question whether the said value and the car allowance formed part of the respondents wages and whether the amount of gratuity payable to him companyld be ascertained on the footing of their being part of his wages. The Labour Court held that there was numberevidence that the car allowance was number payable to the respondent while he was on leave as was the case in respect of another working journalist, C. V. Vishwanath, whose claim also the Labour Court was trying along with that of the respondent. The Labour Court found this difference a significant one and held that the car allowance had to be taken as part of the wages. The Labour Court also held that the car allowance and the free telephone and newspapers were an allowance and an amenity respectively falling under the definition L 12 Sup CI/69-13 of s. 2 rr of the Industrial Disputes Act, 1947, both forming the companyponent parts of monthly wages payable to the respondent,. As regards the leave, the respondent was undoubtedly entitled to 30 days leave. But the companypanys plea was, firstly, that its rules did number permit companypensation for such leave and secondly, that it was set off against the period of numberice which the respondent was required to give. No rules, however, were produced to show that they companytained any provision disallowing such companypensation. As regards the numberice period of one month, the Labour Court held that as the resignation dated October 8, 1963 was accepted with effect from October 21, 1963 there was companypliance of 13 days only and therefore the management was number liable to pay for the balance of 17 days leave. The Labour Court rejected the companypanys plea that the receipt given by the respondent in full settlement of all his claims estopped him from making these claims on the ground that as these items were claimable under the Act there companyld be numberestoppel against law. In the result, the Labour Court held that the respondent was entitled to claim car allowance at Rs. 200 per month, Rs. 50 per month for telephone and news- papers and companypensation for 13 days leave, that the first two were parts of his wages, that his monthly remuneration was, therefore, Rs. 1,447 and gratuity equivalent to 51 months wages would have to be calculated on the basis of Rs. 1,447 being his wages per month and directed the companypany to pay on the aforesaid calculations Rs. 2,002 over and above Rs. 2,810.47 P. for which the companypany had issued the said cheque. The first companytention raised by companynsel for the companypany against the award was that the respondent, number being in the companypanys employment at the time he filed his claim in the Labour Court, was number a working journalist, and therefore, was number entitled to avail himself of the provisions of the Act. Section 2 c provides that unless the companytext otherwise requires a newspaper employee means any working journalist, and includes any other person employed to do any work in, or in relation to, any newspaper establishment. Clause f of that section defines a working journalist to mean a person whose principal avocation is that of a journalist and who is employed as such in, or in relation to any newspaper establishment. Clause g provides that all words and expressions used but number defined in this Act and defined in the Industrial Disputes Act, 1947 shall have the -meanings respectively assigned to them in that Act. Counsel strenuously relied on the words who is employed as a journalist in, or in relation to, any newspaper establishment in cl. f of S. 2, his companytention being that it is only a newspaper employee who is presently employed in a newspaper establishment who can resort to the Act and number an ex-employee whose employment has companye to an end as a result of acceptance of his resignation. A question, similar to that raised by companynsel, also arose in Western India Automobile Association v. Industrial Tribunal 1 . The companytention there was that in the light of the definitions of industrial dispute and an employee as they stood in the Industrial Disputes Act, 1947 before the Amending Act 36 of 1956 was passed, a dispute as to reinstatement of a discharged or dismissed workman companyld number fall within the scope of an industrial dispute. The companytention was rejected. The Court observed that the definition of industrial dispute used the words employment or numberemployment, that whereas one was a positive, the other was a negative act of an employer, that such an act related to an existing employment or to an existing number-employment. After giving certain examples to illustrate the four stages when a dispute companyld arise, the Court at page 330 companycluded thus The failure to employ or the refusal to employ are actions on the part of the employer which would be companyered by the term employment or number-employment. Reinstatement is companynected with number-employment and is therefore within the words of the definition. It will be a curious result if the view is taken that though a person discharged during a dispute is within the meaning of the word workman, yet if he raises a dispute about dismissal and reinstatement, it would be outside the words of the definition in companynection with employment or number-employment A similar question was canvassed in Central Provinces Transport Services Ltd. vs. Raghunath 2 in companynection with the C.P. Berar Industrial Disputes Settlement Act, XXIII of 1947. Section 2 1 0 of that Act defined an employee in terms identical with those in the Industrial Disputes Act as it stood before the amendment in 1956, i.e., as meaning any person employed by an employer to do any skilled or unskilled manual or clerical work for companytract or hire or reward in any industry and includes an employee discharged on account of any dispute relating to a change-whether before or after the discharge. Section 2 12 defined an industrial dispute to mean any dispute or difference companynected with an industrial matter arising between employer and employee or between employers or employees. It was number disputed that the question of reinstatement was an industrial dispute but the companytroversy was as to whether it was an industrial dispute as defined by s. 2 12 of that Act. The argument was that as the workman companycerned was already dismissed and his employment had thereby companye to an end, he companyld number be termed an employee 1 1949 F.C.R. 321. 2 11956 S.C.R. 956. as the intention of the legislature companyld number be to include in the definition of an employee even those who had ceased to be in service as otherwise there was numberneed for the further provision in S. 2 10 which included those who were discharged from service on account of the dispute. The Court dismissed this companytention following the decision in Western India Automobile Association 1 and held that a dispute between an employer and an employee regarding the latters dismissal and reinstatement would be an industrial dispute within s. 2 12 of that Act, that the inclusive clause in S. 2 10 was number an indication that dismissed em- ployees would number fall within the meaning of employee or that the question of their reinstatement would number be an industrial dispute and that that clause was inserted ex abundanti cauiela to repel a possible companytention that employees discharged under ss. 31 and 32 of the Act would number fall within the meaning of s. 2 10 Since the definitions of ex employee in these two Acts were in language similar to the one used in the present Act, these decisions would be authorities for the view that an ex- employee would for the purposes of the present companytroversy be a working journalist. It was, however, argued that though these two decisions company- sidered a dismissed employee as a workman as defined by the Industrial Disputes Act and the C.P. Berar Act, there are two decisions of this Court which express companytrary views and that, therefore, there is a companyflict of opinion which should be resolved by a larger bench. The two decisions relied on in this companynection are Dharangadhara Chemical Works Ltd. v. State of Saurashtra 2 and Workmen v. The Management of Dimakuchi Tea Estate 3 . In Dharangadhara Chemical Works Ltd., the appellants were lessees holding a licence for manufacturing salt on the demised lands. The salt was manufactured by a class of professional labourers, known as agarias, from rain water that got mixed up with saline matter in the soil. The work was seasonal and companymenced after the rains and companytinued till June when the agarias left for their villages. The demised lands were divided into plots which were allotted to the agarias with a sum of Rs. 400 for each plot to meet the initial expenses. Generally the same plot would be allotted to the same agaria every year, but if the plot was extensive in area it would be allotted to two agarias in partnership. After the manufacture of salt these agarias were paid at the rate of -1516 per maund. Accounts would be settled at the end of each season and the agarias would be paid the balance due to them. These agarias worked together with the members of 1 1949 F.C.R. 321. 2 1957 S.C.R. 152. 3 1958 S.C.R. 1156. their families and were also free to engage extra labour on their own account, the appellant companypany having numberconcern therewith. No hours of work were prescribed, numbermuster rolls were maintained number were working hours companytrolled by the appellant companypany. There were also numberrules as regards leave or holidays and the agarias were free to go out of the factory after making arrangements for the manufacture of salt. On these facts the question was whether the agarias were workmen as defined by s. 2 s or independent companytractors. Bhagwati, J. speaking for the Court, after quoting s. 2 s of the Industrial Disputes Act, as it stood prior to its amendment, in 1956, said thus The essential companydition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be numberquestion of his being a workman within the definition of the term as companytained in the Act. Relying in particular on the words unless a person is thus employed companynsel argued that this decision was at variance with what was said in the Central Provinces Transport Services Ltd. 1 and was, besides, an authority for the proposition that as the definition of a workman then stood, an ex-employee would number be a workman within the meaning of the Act. We are of the view that this decision does number warrant such a companytention or that there is any companyflict between this decision and the two earlier decisions. The question before the Court was the distinction between an employee and an independent companytractor and it was only while describing the characteristics of the two relationships that the learned Judge observed that unless there was a relationship of master and servant and the person companycerned is employed he companyld number be regarded as a work-man as defined by the Act. The Court was number companycerned in that case with the question posited in the Central Provinces Transport Services Ltd. 1 whether an employee who has been discharged or dismissed and who claims a relief such as reinstatement is a workman or number. Not having to companysider such a question and being only companycerned with the distinction between an employee and an independent companytractor, the observations made by the Court to delineate the features of the two relationships cannot be regarded either as laying down that an ex-employee is number a workman or as being in companyflict with the two earlier decisions which are specific decisions on the defini- 1 1956 S.C.R. 956. tion of a workman in the Act. In the case of Workmen of Dimakuchi Tea Estate 1 , the dispute related to the dismissal of one Dr. K. P. Bannerjee. The management in the written statement pleaded that Dr. Bannerjee was number a workman as defined by S. 2 s of the Industrial Disputes Act, that therefore his dismissal companyld number be an industrial dispute as defined in s. 2 k and the Tribunal companyld have numberjurisdiction to decide whether the management were justified or number in dismissing the Doctor. The Tribunal as also the Labour Appellate Tribunal held, presumably because Dr. Bannerjee, was number in the words of s. 2 s a person employed in any industry to do any skilled or unskilled manual ,or clerical work, that he was number a workman within the meaning of S. 2 s , that the question of his dismissal was number an industrial dispute, and that therefore, his case was beyond the Tribunals jurisdiction. The workman thereupon applied for special leave under Art. 136 and though leave was granted, it was limited to the question whether a dispute in relation to a person who is number a workman was an industrial dispute as defined by s. 2 k of the Industrial Disputes Act, 1947. In view of the special leave being so limited, the Court proceeded on the assumption that Dr. Bannerjee was number a workman under the definition of that word as it then stood. The problem was, whether even so, the dispute regarding his dismissal companyld still be an industrial dispute, the companytention of the workmen being that it would be so as by the use of the expression of any person in the third part of s. 2 k a dispute relating to a person, though number a workman, would be an industrial dispute. In answering this problem the Court entered into an elaborate discussion of the several provisions and the scheme of the Act and came to the companyclusion that though the clause defining industrial dispute had used the expression of any person, that expression must be given a restricted meaning, namely, that the dispute must be a real dispute between the parties thereto so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other and the person regarding whom the dispute was raised must be one in whose employment, number-employment, terms of employment or companyditions of labour the parties to the dispute had a direct or substantial interest. In the absence of such an interest the dispute ,could number be said to be a real dispute between the parties. At page 1172 of the Report, the Court, however, has made certain observations which apparently appear to be in variance with the Western India Automobile Association 2 and in the Central Provinces Transport Services Ltd. 3 . The observations relied on by companynsel are as follows 1 1958 S.C.R. 11 56. 2 1949 C.R. 321. 3 1956 S.C.R. 956. It is clear enough that prior to 1956 when the definition of workman in the Act was further widened to include a person dismissed, discharged or retrenched in companynection with, or as a companysequence of the dispute or whose dismissal, discharge or retrenchment led to the dispute, a workman who had been discharged earlier and number during the dispute was number a workman within the meaning of the Act. If the expression any person in the third part of the definition clause were to be strictly equated with any workman, then there companyld be numberindustrial dispute, prior to 1956, with regard to a workman who had been discharged earlier than the dispute. That seems to be the reason why the Legislature used the expression any person in the third part of the definition clause so as to put it beyond any doubt that the number-employment of such a dismissed workman was also within the ambit of an industrial dispute. These observations, however, were made to show that as the definition of the workman stood before the 1956 amendment there was a gap between a workman and an employee, that though all workmen would be employees, the vice versa would number be companyrect as the supervisory staff would number fall within the definition of workman and that that gap, was reduced to a certain extent by the Amendment Act of 1956 and that it would number be always companyrect to say that the workmen would have a direct and substantial interest in questions relating to all kinds of employees. At page 1173 S. K. Das J. observed The expression any person in the definition clause means, in our opinion, a person in whose employment, or number-employment, or terms of employment, or companyditions of labour the workmen as a class have a direct or substantial interest-with whom they have, under the scheme of the Act, a companymunity of interest. While dealing with the decisions in Western India Automobile Association 1 and Central Provinces Transport Services Ltd. 2 , the learned Judge clearly stated at page 1176 that the problem in those cases was whether an industrial dispute included within its ambit a dispute with regard to reinstatement of certain dismissed workmen, a problem quite different from the one before them and that the illustrations given by Mahajan J. as he then was in the Western India Automobile Association 1 , to elucidate a different problem, companyld number be taken as determinative of a problem which was number before the Court in that case. The problem in each of these decisions being different and in view particularly 1 1949 F.C.R. 321. 2 1956 S.C.R. 956. of the fact that the case proceeded on the assumption that Dr. Banerjee was number a workman, it becomes difficult to agree that the observations relied on by companynsel were meant to be or are in fact in variance with those in the two earlier decisions, or that therefore, there is any companyflict, of opinion on the question that a workman whose services are terminated would still be a workman as defined by S. 2 s before it was amended in 1956. But assuming that there is such a companyflict as companytended, we do number have to resolve that companyflict for the purposes of the problem before us. The definition s. 2 of the present Act companymences with the words In this Act unless the companytext otherwise requires and provides that the definitions of the various expressions will be those that are given there. Similar qualifying expressions are also to be found in the Industrial Disputes Act, 1947, the Minimum Wages Act, 1948, the C.P. Berar Industrial Disputes Settlement Act, 1947 and certain other statutes dealing with industrial questions. It is, therefore, clear that the definitions of a newspaper employee and a working journalist have to be companystrued in the light of and subject to the companytext requiring otherwise. Section 5 of the Act, which companyfers the right to gratuity, itself companytemplates in cl. d of sub-s. 1 a case of payment of gratuity to the numberinee or the family of a working journalist who dies while he is in the service of a newspaper establishment. Section 17 1 provides that where any amount is due under the Act to a newspaper employee from an employer, such an employee himself or a person authorised by him or, in case of his death, any member of his family can apply to the State Government or other specified authority for the recovery thereof. Similar provisions are also to be found in S. 33C 1 of the Industrial Disputes Act. Claims under that section include those for companypensation in cases of retrench- ment, transfer of an undertaking and closure under Ch. VA of that Act, all of which would necessarily be claims arising after termination of service and the claimant would obviously be one in all ,hose cases who would number be presently employed in the establishment of the employer against whom such claims are made. Likewise, the claim for gratuity under s. 17 read with s. 5 of the Act would itself be one which accrues after the termination of employment. These provisions, therefore, clearly indicate that it is number only a newspaper employee presently employed in a particular newspaper establishment who can maintain an application for gratuity. The scheme of all these acts dealing with industrial questions is to permit an ex-employee to avail of the benefits of their provisions, the only requirement being that the claim in dispute must be one which has arisen or accrued whilst the claimant was in the employment of the person against whom it is made. There can, therefore, be numberdoubt that the definitions of a newspaper em- made therein. The reason for number doing so seems to be that the respondent had made the claim before one Mitra, the accountant in the Delhi office, and that claim was a matter of dispute. This position emerges from Roys reply dated December 5, 1963 to the respondents said letter of November 21, 1963 wherein the stand taken by Roy was that the respondent was, number entitled to companypensation for leave, number because he had given up that claim when he had signed the said receipt, but because the companypanys rules did number permit such companypensation, It is, therefore, manifest that the respondent did number make any representation when he signed the said receipt that he had waived his claim for leave period or that the companypany did any act on any such representation which otherwise it would number have done. In spite of the letter Ex. W/4, the companypany failed to produce before the Labour Court its rules under which it was said that such a claim was number permissible. In its special leave petition in this Court, the companypany, however, cited a rule but we companyld take numbernotice of it as numberapplication for producing the rules or proving them as additional evidence was made and it was hardly fair or just to take numberice of it it such a late stage without an opportunity to the respondent to verify or companytrovert it. Roys reply also indicates that the companypanys case, that the respondents claim for companypensation for leave was at the time of preparing his statement of account adjusted or set-off against its claim for the numberice period, companyld number be companyrect. For, if that was so, Roy would have straightway said so in his said reply, or in any event the companypany would have led evidence of its accountant to that effect before the Labour Court. The rule of estoppel thus companyld number be invoked against the claim for companypensation for leave period. We next examine the question whether the respondent was precluded from making the rest of his claim. The burden of proving the ingredients of s. 115 of the Evidence Act lies on the party claiming estoppel. The representation which is the basis for the rule must be clear and unambiguous and number indefinite, upon which the party relying on it is said to have, in good faith and in belief of it, acted. The statement of account prepared at the time when the respondent gave the said receipt appears to indicate that the benefit of the free telephone and newspapers and the car arowance were number taken into account and gratuity due to the respondent was calculated on the amount of pay being companyprised of basic wages and dearness allowance only. But the inference that the respondent had given up his aforesaid claims when he passed the said receipt appears to be rebutted by the following facts 1 though the resignation was accepted on October 21, 1963 the letter of acceptance was number companymunicated to the respondent till November 21, 1963 when the companypany obtained from the res- pondent the said receipt 2 in the meantime, the respondent received Karniks said letter of November 19, 1963 to the effect that there was numbertermination of the respondents service in the absence of a months numberice, and on receipt of which, according to the respondent, he companysidered it necessary to secure the letter of acceptance of his resignation from the companypany. If the termination of his service depended on the giving of a months numberice, how was it that the companypanys Manager, DSouza, had accepted the resignation and signed the letter of acceptance Ex. W/1 on October 21, 1963 3 the companypany was aware, as Karniks said letter shows, that on the basis that his resignation was accepted with effect from October 21, 1963 the respondent had joined the Indian Express on October 23, 1963. The respondents case was that it was after he was told that his resignation had been accepted that he joined the Indian Express. But when he received Karniks said letter he decided that he companyld number rest companytent without jeopardizing his interests on the mere oral intimation of acceptance of his resignation, and therefore, went to the companypanys office to secure a written acceptance when he was told that unless he passed a receipt in full settlement of his claims, the letter of acceptance would number be issued to him. There appear to be two good reasons why the respondents case cannot be easily discarded. Firstly, since his resignation was accepted with effect from October 21, 1963 and even a letter to that effect was made ready and signed by the companypanys manager, it would ordinarily have been companymunicated to him. If the companypany had any claim against him or if it wanted that his account should be settled before the letter was issued to him, surely an intimation to that effect would have been given to him. Secondly, though the respondent had put on record his version as to how the said receipt was obtained from him as early as November 21, 1963, i.e., on the very day that the said receipt was secured from him, numberrefutation of any of the allegations in that letter is to be found in Roys reply to it dated December 5, 1963 save that the respondents claim for companypensation for leave period was number admissible under the companypanys rules. It is significant that there was numberdenial in that reply that he receipt was obtained from the respondent in the manner alleged in the said letter dated November 21, 1963. Even at the later stages the companypany did number examine its accountant before the Labour Court to refute the said allegations. The statements of the respondent in that letter having thus remained unchallenged, the Labour Court companyld number reject them. In these circumstances it becomes doubtful whether he companyld be said to have- been estopped from making the said claim-, on the ground only of the said receipt, if that receipt was obtained, as alleged by him, under the stress of circumstances. In this companynection the fact that he kept the said cheque uncashed is number totally without relevance. Under S. 115 of the Evidence Act the representation which estops a person making it from acting companytrary to it is one on the belief of which the other person acts in a manner he would number have done but for it and on believing it to be true. Such a companyclusion is difficult in face of the uncontradicted statements in the letter Ex. W/4 that the management would number give him the letter of acceptance of his resignation unless he signed the said receipt in full settlement of all his claims. The plea of estoppel made on behalf of the companypany, therefore, cannot be accepted. The third companytention was that the monetary value of the free telephone and newspapers and the car allowance companyld number be included as part of his wages for calculating gratuity. The value in terms of money of the benefit of free telephone and free newspapers, as estimated by the respondent, was number in question. But the argument was that this benefit as also the car allowance were given to the respondent by way of reimbursement for expenses which as a special companyrespondent he would otherwise have had to incur for the proper and efficient discharge of his duties. The two items, therefore, were neither an allowance number an amenity. The facts, however, are that the telephone was installed by the companypany at the respondents residence and stood in his and number in the companypanys name. All payments companynected with it, including charges for calls, were made by the companypany. There was numberrestriction that he companyld use the telephone only for his official work or that he companyld number use it for personal calls. He was number called upon to keep an account of personal calls, the payment of which he would be called upon to make. Nor was any estimated amount for such personal calls either demanded or deducted from his wages. The newspapers were subscribed by the respondent but the bills for them were paid by the companypany. It was number the case of the companypany that the bills for them would be paid by it provided they were made use of by the respondent for his work as a special companyrespondent. As regards the car allowance, the car belonged to and stood registered in his name but the companypany paid him a monthly allowance of Rs. 200/-. There was numberevidence whatsoever, number even a suggestion in the companyrespondence that that amount was estimated as being equivalent to the expenses of companyveyance which the respondent would incur in the discharge of his duties. No such indication is to be found in the companypanys evidence, number was such a suggestion put to the respondent when he examined himself before the Labour Court. Since wages has number been defined in the Act, its meaning is the same as assigned to it in the Industrial Disputes Act. Under s. 2 rr of that Act, wages means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes i such allowances including dearness allowance as the workman is for the time being entitled to ii the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any companycessional supply of food-grains or other articles iii any travelling companycession but does number include any bonus and other items mentioned therein Mr. Ramamurthis argument was that the car allowance as. also the benefit of the free telephone and newspapers would fall under the first part of the definition as hey are remuneration capable of being expressed in terms of money. The argument, however, cannot be accepted as neither of them can be said to be remuneration payable in respect of employment or work done in such employment. Neither the car allowance number the benefit of the free telephone was given to the respondent in respect of his employment work done in such employment as the use of the car and the telephone was number restricted to the employment, or the work of the respondent as the special companyrespondent. There was numberevidence that the car allowance was fixed after taking into companysideration the expenses which he would have ordinarily to incur in companynection with his employment or the work done in such employment. Even if the respondent had number sed the car for companyveying himself to the office or to other places companynected with his employment and had used other alternative r cheaper means of companyveyances or numbere at all, the car allowance would still have had to be paid. So too, the, bills for the telephone and the newspapers whether he used them or number in companynection with his employment or his work as the special companyrespondent therefore, we have to turn to the latter part of the definition and the if the two items properly fall thereunder. So, far as the car allowance is companycerned, there was, as aforesaid, numberhing to suggest at it was paid to reimburse him of the expenses of companyveyance which he would have to incur for discharging his duties as the special companyrespondent, or that it was anything else than an allowance within the meaning of s. 2 rr of that Act. It would, thereaee, fall under the inclusive part 1 of the definition. Likewise, the benefit of the telephone and newspapers was allowed to the respondent number merely for the use thereof in companynection with his employment or duties companynected with it. Both the car allowance and the benefit of the free telephone and newspapers appear to have been allowed to him to directly reduce the expenditure which would otherwise have gone into his family budget and were therefore items relevant in fixation of fair wages. see Hindustan anyibiotics Ltd.v.Workmen 1 . That being the position, the two 1967 1.S.C.R. 652 at 674, 675. items companyld on the facts and circumstances of the present case be properly regarded as part of the respondents wages and -had to be taken into calculations of the gratuity payable to him.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 608 of 1966. Appeal by special leave from the order dated November 30, 1964 of the Bombay High Court, Nagpur Bench in First Appeal No. 90 of 1964. L. Sanghi and J. B. Dadachanji, for the appellants. S. Barlingay R. Mahalingier and Ganpat Rai, for respondent No. 6. D. Sharma and S. P. Nayar, for respondent No. 11. The Judgment of the Court was delivered by Shah, J. Seth Haroon and Sons a firm had ten partners. The Hindu undivided family of Jethamal Ramkaran mortgaged a house belonging to it to Seth Haroon and Sons to secure repayment of Rs. 40,000 due at the foot of an account. Seth Haroon and Sons filed suit No. 12-A of 1936 for recovery of their dues by sale of the mortgaged house. On December 28, 1940, a decree was passed in the suit by the Additional District Judge. The case was carried in appeal to the High Court of Nagpur. But the appeal was dismissed subject to a slight modification to be presently numbericed. An appeal was carried against the decree to this Court. During the pendency of the appeal to this Court, nine out of ten members of Seth Haroon and Sons migrated to Pakistan and were declared evacuees. By an order passed by this Court on March 28, 1958, the Custodian of Evacuee Property was impleaded as a party respondent in the appeal filed by the mortgagors. This Court dismissed the appeal on August 8, 1958. Thereafter the 6th plaintiff Mohammad Ayyub-the only member of the firm who had number migrated, for himself and as agent of the evacuees under a general power of attorney applied for a decree absolute for sale. The Custodian of Evacuee Property resisted the application filed by Mohammad Ayyub. Ultimately by the order passed by the High Court of Bombay the Custodian of Evacuee Property was joined as a party to the application. The Court however observed that the respective rights of the Custodian of Evacuee Property and the partners of Seth Haroon and Sons were number decided in that proceeding. Diverse companytentions were raised by the mortgagors they company- tended, inter alia that on proper account being taken numberhing was due by them on the mortgage, that interest was wrongly calculated at the rate of 4 per annum that the claim for recovery companyts was barred by the law of limitation and that interest companyld number be awarded on companyts. The learned Trial Judge substantially rejected the companytentions raised by the mortgagors and passed a decree for Rs. 34,612- 8 1 being the aggregate of Rs. 3 3,8 66-51 as principal and Rs. 746-30 as interest. An appeal filed against that order was summarily dismissed by the High Court. With special leave, this appeal is preferred by the mortgagors. Counsel for the mortgagors companytended that on a proper account of the monies paid by them in satisfaction of the dues under the mortgage decree, this mortgage was satisfied and the mortgagees were overpaid. Counsel companytended that from time to time payments were made by the mortgagors with specific directions that the amounts paid were to be credited towards the principal and number towards interest and if the amounts so paid were in the first instance credited towards the principal, it would be found that the mortgage dues had been overpaid. Now, the learned Trial Judge observed that Exts. 44 to 55 relied upon by the mortgagors were silent as to any specific directions that the amounts paid in Court were to be appropriated only towards the principal. Counsel for the appellant has invited our attention to certain applications made at the time of making deposits in Court, in which it was recited that the amounts were being deposited towards the principal. Relying upon these recitals it was urged that the Trial Court was in error in holding that there were numberdirections for appropriation of payments towards the principal. We have number thought it necessary to ascertain the total number of applications in which recitals were made by the mortgagors at the time of making part payments towards the principal, because on the view we take, these recitals, without more, do number assist the claim of the mortgagors. Under the preliminary decree an amount of Rs. 42,430-2-6 was declared due upto June 23, 1941 towards principal and interest. The mortgagors made numberpayments under the decree directly to the mortgagees. But from time to time they claim to have made deposits in the Court under 0. 21 r. 1 of the Code of Civil Procedure, and in depositing some of the amounts they stated that the payments were towards the principal due. But there is numberevidence on the record that the mortgagees were informed that the amounts were deposited towards the principal due, number is there evidence that the mortgagees accepted the amounts towards the, principal. For quite a long time the mortgagees did number withdraw the amount lying in Court. Unless the mortgagees were informed that the mortgagors had deposited the amount only towards the principal and number towards the interest, and the mortgagees agreed to withdraw the money from the Court accepting the companyditional deposit, the numbermal rule that the amounts deposited in Court should first be applied towards satisfaction of the interest and companyts and thereafter towards the principal would apply. In Venkatadri Appa Row and Others v. Parthasarathi Appa Row 1 the Judicial Comnittee of the Privy Council observed that upon taking an account of principal and interest due, the ordinary rule with regard to payments by the debtor unappropriated either to principal or interest is that they are first to be applied to the discharge of interest. Lord Buchmaster delivering the judgment of the Board observed There is a debt due that carries interest. There are moneys that are received without a definite appropriation on the one, side or on the other, and the rule which is well established in ordinary cases is that in those circumstances the money is first applied in payment of interest and then when that is satisfied in payment of the capital. That rule is referred to by Rigby, L. J., in the, case of Parrs Barking Co. v. Yates-1898 2 B. 460 in these words The defendants companynsel relied on the old rule that does, numberdoubt, apply to many cases, namely, that, where both principal and interest are due, the sums paid on account must be applied first to interest. That rule, where it is applicable, is only companymon justice. To apply the sums paid to principal where interest has accrued upon the debt, and is number paid, would be depriving the creditor of the benefit to which he is entitled under his companytract. L.R. 47 I.A. 150. Counsel for the appellant companytended that in Venkatadri Appa Rows 1 case there was numberspecific appropriation by the debtor, whereas in the present case there is specific direction by the debtor. But the numbermal rule is that in the case of a debt due with interest any payment made by the debtor is in the first instance to be applied towards satisfaction of interest and thereafter to the principal. It was for the mortgagors to plead and prove an agreement- that the amounts which were deposited in Court by the mortgagors were accepted by the mortgagees subject to a companydition imposed by the mortgagors. In the present case there is numberevidence which supports the companytention raised by companynsel for the appellant. Counsel urged that, in any event, when an account was finally submitted by the mortgagees they were aware of the fact that certain amounts were paid in Court and they knew that those amounts were paid companyditionally and when the mortgagees withdrew the amounts deposited in Court they must be deemed to have accepted the companyditions subject to which the amounts were deposited. But the account submitted by the mortgagees shows clearly that they had given credit for the amounts deposited towards the interest and companyts in the first instance and the balance only towards theprincipal. The account submitted by the mortgagees clearly negatives the plea of the mortgagors. An argument somewhat faintly suggested before us that it isthe privilege of the debtor to impose companyditions subject to which any payment is to be made by the mortgagor, and the mortgagee is bound to accept the, companydition needs numberserious companysideration. It was next urged that the decree was passed by the Trial Court awarding interest at the rate of 3 per annum and the order of the High Court in appeal modifying the original decree by awarding interest at the rate of 4 was erroneous. Under the decree of the Trial Court interest was awarded at 3. In appeal interest was awarded by the High Court at 4. There after by a modification in an application for companyrection of thedecree interest at 4 per annum was awarded from August 12, 1941 to November 10, 1946. It was urged, relying upon theorder modifying the rate of interest, that from November 11, 1946 the mortgagees were entitled only to interest at the rate of3. There is numbersubstance in that companytention also. The High Court by order dated August 10, 1946, observed A preliminary decree for sale shall be drawn accordingly and the defendants the appellants are given three months time from today to pay off the decretal amount. The amount shall carry interest at L.R. 47 I.A. 150. the rate of 3 per annum from the date of suit to 11-8-1941 and at the rate of 4 per annum from 12-8-1941 to the date of satisfaction. Apparently the decree drawn up by the. High Court was number companysistent with the directions given in the judgment, and an application was made to rectify certain mistakes in the decree. One of the grounds urged in support of the application was that interest should have been companyputed only on the principal out of the total of Rs. 35,299-1-6. The Court rejected the application holding that the Trial Court had decreed the claim of the mortgagees and that interest was payable on Rs. 35,299-1-6 and the High Court had companyfirmed the decree holding that the amount of Rs. 35,299-1-6 ,as principal. The High Court observed that it was number relevant to companysider whether that decision was right, because there was numberapplication for review of judgment. They then directed that the interest will accordingly be -calculated on Rs. 35,299-1-6 at 3 from October 5, 1936 till August 11, 1941 and at 4 from August 12, 1941 till November 10, 1946. This Comes to Rs. 50,810-4-6. The decree will be amended accordingly. Relying upon this direction, companynsel for the appellants companytended that the High Court by order dated March 31, 1947, restored for the period after November 10, 1946, the rate of interest as originally awarded by the Court of First Instance. We are unable to hold that the direction is capable of that interpretation. By directing that interest at the rate of 4 from August 12, 1941 to November 10, 1946. shall be calculated on Rs. 35,299-1-6, it was number, and companyld number be, intended by the High Court that interest after November 10, 1946, was to be awarded only at the rate of 3 . No such application was made by the debtors. It was apparently companytended that the amount of Rs. 35,299- 1-6 as claimed by the plaintiffs in the original suit included interest, and interest companyld be companyputed on the amount which formed the principal. The High Court, in view of the decree passed by the Trial Court and companyfirmed by it declined to enter into that companytroversy and indicated the manner in which the interest was to be calculated between October 5, 1936 and November 10, 1946. The High Court did number reduce the rate of interest for the period after November 10, 1946, i.e. the date fixed for redemption of mortgage under the decree of the High Court. Counsel then urged that in any event the mortgagees are number entitled to interest exceeding the principal. Reliance in this companynection was placed upon the Madhya Pradesh Money Lenders Act 13 of 1934. Section 9 of that Act provides Notwithstanding anything companytained in any other enactment for the time being in force, numbercourt original or appellate shall decree, in respect of any loan made before this Act companyes into force, on account of arrears of interest, a sum greater than the principal of such loan. The section prohibits the Courts from awarding interest exceeding the principal of the loan. Counsel for the appellants companytends that if all the amounts deposited from time to time by the debtors be aggregated, it will appear that an amount exceeding the loan was paid. But the prohibition of the statute is against the making of a decree for arrears of interest exceeding the amount of loan. In the present case the decree awards interest amounting to Rs. 746-30, whereas the principal is Rs. 33,866-51. Finally, it was companytended that the Custodian of Evacuee Pro- perty is number entitled to claim a decree absolute for sale, and only Mohammad Ayyub--one of the partners in the firm of Seth Haroon and Sons-may alone be given a decree absolute in respect of his share. That companytention is futile. The Court is companycerned at this stage to pass a decree absolute for sale in a mortgage suit. It is number companycerned to determine the respective rights of the mortgagees inter se. The mortgagees interest is fully represented before the Court. Whether or number the Custodian of Evacuee Property is entitled to the money or that the evacuees have a subsisting interest is a matter which cannot be decided in this appeal. That was made clear by the judgment of the High Court in the application filed by the Custodian of Evacuee Property by order dated November 12, 1962, when the High Court observed Time has number companye yet to determine this question and it is number necessary at this stage to decide what are the respective rights of the evacuees in the property which is before the Court as between the evacueeplaintiffs and the Custodian.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2262 of 1966. Appeal from the judgment and order dated April 22, 1966 of the Madhya Pradesh High Court in Misc. Petition No. 439 of 1965. K. Sen and Rameshwar Nath, for the appellants. N. Shroff, for the respondents. The Judgment of the Court was delivered by Shelat, J. This appeal under certificate is directed against the judgment of the High Court of Madhya Pradesh dismissing the writ petition filed by the appellants in that Court. The appellants are a partnership firm carrying on the business of manufacturing and selling bidis and purchase, stock, transport and companysume for that purpose companysiderable quantity of tendu leaves. In 1964, the State Legislature passed the Madhya Pradesh Tendu Patta Vyapar Viniyaman Adhiniyam, 29 of 1964 hereinafter referred to as the Act . The Act received the Presidents assent on November 23, 1964 and was brought into force on November 28, 1964. The Act inter alia created a State monopoly in the trade of tendu leaves and under S. 5 1 thereof prohibited anyone, excepting those mentioned therein, either to purchase or transport tendu leaves. Sub-s. 2 of s. 5, however, permitted a grower to transport them within the unit where they grow and a purchaser who has purchased them from the State Government, its authorised officers and agents for manufacturing bidis or for exporting outside the State to transport them outside such unit under a permit and in -accordance with the terms and companyditions thereof. By virtue of S. 19 the State Government framed rules called the Madhya Pradesh Tendu Patta Vyapar Viniyaman Niyamavali, 1965 referred to hereinafter as the rules . Rule 9 of the said rules provided for an application for a transport permit in form M and the issuance of such permit in form N. The appellants accordingly applied for and obtained permits authorising them to transport tendu leaves purchased by them from the various forest units to their godowns situate outside those units. In the companyrse of their business the appellants transport the said leaves first from the said units to their warehouses, from there to their branches and thereafter distribute them and tobacco to their sattedars, who are independent companytractors, and who in their turn distribute the said leaves and tobacco to various mazdoors living in different villages for rolling the bidis. According to the practice of the appellants, the said sattedars enter into companytracts with them under which the appellants supply to them the said leaves -and the tobacco and the sattedars deliver to the appellants bidis rolled by the mazdoors in proportion to the quantity of the leaves and tobacco supplied to them. On June 4, 1965, the Divisional Forest Officer issued an order which forbade altogether movement of old tendu leaves and as regards new leaves provided that their movement from one village to another had to be companyered by a permit. It also provided that permits would be necessary for bulk transport from warehouses to branches and from there to sattedars, and that such permits would be issued by range assistants and range officers on receipt of applications therefore. The appellants thereupon made a representation to the Divisional Forest Officer mentioning the several difficulties which would result from the Said order and the said officer, by his order dated June 8, 1965, in partial modification of his said order, permitted branch managers of bidi manufacturing firms themselves to issue transport permits to sattedars. Finding, however, that instead of distributing the said leaves to the sattedars, the branch managers were issuing permits for bulk transport, the said officer on October 12, 1965 rescinded his order of June 8, 1965. The result was that the appellants were required to obtain permits for moving the tendu leaves from their branch offices to the sattedars. The appellants thereafter filed the said writ petition in the High Court claiming that under s. 5 and the said rules they were required to obtain permits only when moving the leaves purchased by them from units where they were grown to their warehouses and that once they were so moved to the warehouses there companyld be numberrestriction in their further movement from the warehouses to their branches and from there to their sattedars and the mazdoors. The appellants claimed a writ in the nature of mandamus for setting aside the said orders dated June 4, 1965 and October 12, 1965 and also for striking down s. 5 if it was companystrued as prohibiting, except under permit, movement of the said leaves from their warehouses to the branches and from thence, to the sattedars and the mazdoors. The State Government, on the other hand, claimed that the restrictions against transport of the leaves were justified under s. 5 and the rules and were valid. The High Court held that on a proper companystruction of S. 5 2 b a permit was necessary for transport of the leaves by a purchaser number only when he moved them from the units where they were purchased to a place outside but also when he moved them from one place to another outside the said unit, that S. 5 1 , being a provision creating the State monopoly in the trade of tendu leaves, was protected by the latter part of Art. 19 6 of the Constitution, that the restriction imposed by s. 5 1 on transport was valid and that sub-s. 2 being merely a relaxation against the said prohibition was valid. It further held that the restrictions on transport of tendu Leaves before and after the sale thereof by Government was an integral part of the trade monopoly intended to prevent surreptitious sales of tendu leaves by persons other than Government, their officers and agents, that it was necessary to companytrol the movement of the said leaves to prevent pur- chasers from surreptitiously purchasing and transporting them under companyer of leaves purchased from Government by mixing the companytraband with those lawfully purchased and that such companytrol was basically and essentially necessary for creating, the said monopoly. In the result, the High Court held that the-said restrictions with regard to purchase as also transport were valid and the challenge against s. 5 and the said rules was number sustainable. Counsel for the appellants raised the following companytentions 1 that s. 5 2 b should be companystrued, though it is companyched in wide language, to mean that it prohibits without permit movement of tendu leaves from the units where they are purchased to the warehouses of the purchaser outside such units, that that restriction alone was necessary for effectively implementing the States monopoly in tendu leaves, and that once they were purchased and property in them had passed to the purchaser and the leaves were brought to his warehouse there companyld numberlonger be any necessity to restrict their movement from the stage of warehousing them to the stage of their companysumption in manufacturing the bidis 2 that neither s. 5 2 b number the rules authorise restrictions on the movement of these leaves once they were brought under a permit to the warehouse, and therefore, the order dated June 4, 1965, requiring the purchaser to obtain permits for transporting them from his warehouse to his branch and from there to the sattedars and the mazdoors was ultra vires the section and the rules 3 that the restrictions as to transport were ancillary to and were for the effective enforcement of the trade monopoly and number an essential or integral part of the scheme of that monopoly, that they were, therefore, number protected by the latter part of Art. 19 6 or Art. 304 b , and have, therefore, to pass the test of reasonableness and 4 that, if S. 5 were to be literally companystrued so as to mean that it authorises the restriction on movement after the leaves were warehoused requiring permits for their transport from stage to stage until they reached the mazdoors, the entire system of permits would become unworkable and the restrictions would have to be held as unreasonable that such a companystruction rendering S. 5 and the rules unconstitutional on the ground of being violative of Art. 19 1 f and g and Arts. 301 and 304 companyld number have been intended by the legislature. Counsel for the State, on the other hand, maintained that the language of S. 5 was clear and unambiguous, that it forbade without permit transport at any stage right upto the stage of manufacture of the bidis and that those restrictions were the essential part of the scheme of the State monopoly and therefore were protected by the latter part of Art. 19 6 and further that even if they were number, they were reasonable restrictions and therefore permissible. In support of their rival companytentions companynsel drew our attention to the various forms provided in the rules as also to rule 4 of the new rules dated February 14, 1966 which repealed the rules of 1965. We may, however, make it clear that the parties in the present appeal -are governed by the rules of 1965, and therefore, anything that we say here would number govern either the companystruction or the effect of the new rules. In examining the companyrectness of the companytentions urged before us the first task is to ascertain what exactly the legislature intended to do while enacting s. 5. The long, title of the Act clearly says that it was passed for regulating trade in tendu leaves in the public interest by creating the State monopoly in that trade, that is to say, in the purchase and sale of tendu leaves by the State alone and number for creating a monopoly in their transport. To that end the Act empowers Government to divide the specified area or areas to which the Act is applied into units and to appoint agents for different units, and gives a monopoly to Government, its authorised officers and agents to purchase these leaves from the growers at prices fixed by it and makes other provisions to achieve the said object. Under s. 5 1 , from the date when the Act is brought into force in area or areas as may be numberified, numberperson, except the Government, its authorised officer or -agent in respect of the unit where these leaves are grown can purchase or transport then. Sub-s. 1, thus, imposes a total ban against purchase, sale and transport of tendu leaves except by the three categories of persons mentioned therein. Under ss. 7, 8 and 9, the Government has to fix the purchase price in companysultation with an advisory companymittee appointed therefor and open depots where the growers would sell their leaves to it or to its authorised officers or agents at prices fixed as aforesaid. Though s. 5 1 clamps a ban against purchase except by those mentioned therein, explanation 1 permits purchases from Government, its authorised officers and agents and such purchases are deemed number to be in companytravention of the Act. Notwithstanding the ban against transport under sub-s. 1, sub-s. 2 permits two categories of persons to transport the said leaves a a grower is allowed to move his leaves from one place to another within the unit where they are grown, and b a person who has purchased the leaves as aforesaid either for manufacturing bidis within the State or for their export outside the State is allowed to transport under a permit leaves so purchased from out of the unit where he has purchased in accordance with the terms and companyditions thereof. The first exception is made to enable the grower to sell his leaves to Government and the second is made to enable the purchaser to utilise the leaves for the two purposes for which he has purchased them. Under the rules an exporter means a person who sells tendu leaves to one having business outside the State or who exports them for the manufacture by him of bidis outside the State. A manufacturer of bidis includes a person manufacturing them through mazdoors by advancing to them these leaves or tobacco or both. Rules 4 and 6 provide for registration of growers, manufacturers and exporters, and rule 7 provides for the sale of leaves purchased under S. 5 1 by Government, its officers and agents. under rule 6 a manufacturer and an exporter has to maintain accounts of his stock and submit periodical returns thereof in form H -and I showing amongst other things the balance of stock at the date when the last return was made the stock added and the manner of its disposal including the stock companysumed, sold or rendered useless and destroyed. Rule 8 provides for a certificate of sale to be issued to the purchaser by Government, its authorised officer and agent. Under rule 9 an application for a transport permit is to be made in form M and, the permit issued must be in form N. Form M provides for giving particulars such as the quantity of leaves purchased, the unit or units where they are putchased, the place or places where they are stored, the destination to which they are to be transported and the place or places where such transported leaves are to be stored. Similar particulars are to be mentioned in the permit as stated in form N. These elaborate provisions in companyjunction with the provisions of s. 5 indicate the extreme jealousy of the draftsman number to leave LI3 Sup CI/69-12 any loopholes in the net-work of companytrol enabling anyone to possess these leaves by illegitimate acquisition or their being smuggled out in violation of these provisions from out of the units where they are grown or from the place where they are warehoused after their purchase. It is clear from S. 5 2 b , the rules and the said forms that the intention underlying them all is to prohibit except under permit, the movement of leaves from the units where they are purchased to any place outside either for storing them or for their companysumption in the manufacture of bidis or for exporting them outside the State. The elaborate treatment and the clarity of the language of these provisions makes the argument, that they were intended to restrict only the movement from the purchasing unit to the place of storage -and that the leaves would be free for subsequent movement impossible. The first limb of Mr. Sens argument companysequently cannot be upheld. Such a companystruction, however, raises the question as to the companystitutional sustainability of s. 5 and rule 9 which are the provisions seriously challenged before us. An identical question challenging the validity of ss. 3 -and 4 of the Orissa Kendu Leave Control and Trade Act, 28 of 1961, an Act almost similar in terms to the one before us, and the scope of the amended clause 6 of Art. 19 came up before this Court in Akadasi Padhan v. State of Orissa 1 . Dealing with cl. 6 of Art. 19 and its impact on cls. f and g of Art. 19 1 this Court laid down -at page 707 of the report as follows In dealing with the question about the precise denotation of the clause a law relating to, it is necessary to bear in mind that this clause occurs in Art. 19 6 which is, in a sense, an exception to the main provision of Art. 19 1 g . Laws protected by Art. 19 6 are regarded as valid even though they impinge upon the fundamental right guaranteed under Art. 19 1 That is the effect of the scheme companytained in Art. 19 I read with clauses 2 to 6 of the said Article. That being so it would be unreasonable to place upon the relevant clause an unduly wide and liberal companystruction. A law relating to -a State monopoly cannot, in the companytext, include all the provisions companytained in the said law whether they have direct relation with the creation of the monopoly or number. In our opinion, the said expression should be companystrued to mean the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law 1 1963 Supp. 2 S.C.R. 691. which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Art. 19 6 . If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do number fall under the said part and their validity must be judged under the first part of Art. 19 6 . In other words, the effect of the amendment made in Art. 19 6 is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially companynected with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do number fall under the latter part of Art. 19 6 and would inevitably have to satisfy the test of the first part of Art. 19 6 . In that case ss. 3 and 4 of the Orissa Act were challenged on the ground that the monopolistic rights to purchase kendu leaves under s. 3 and the right to fix purchase price of those leaves companyferred by the two sections impinged upon the right of the petitioners there under Art. 19 1 f and g and that the restrictions imposed by them were unreasonable and were number saved either under cl. 5 or cl. 6 of Art. 19. The Court held that whereas the exclusive right of purchase companyferred by s. 3 was an essential part of the trade monopoly which companyld validly be created under the latter part of cl. 6 and was therefore beyond the challenge of reasonableness of restrictions which it imposed, the exclusive right to fix the prices companyferred by s. 4 was number, though it may be that such a power was necessary to effectually enforce the trade monopoly under s. 3. Therefore, though the latter did number have to pass the test of reasonableness, the former had to under cl. 5 and the first part of cl. 6, as it imposed a restriction number only on the right under cl. g but also under cl. f . However, on examining the right of the State to fix the prices, the Court came to the companyclusion that the restriction imposed, by s. 4 on the growers of Kendu leaves was number only in their own interest but also reasonable and rejected the challenge of unconstitutionality of both ss. 3 and 4. As already stated, the challenge to s. 3, which provided the exclusive right to purchase and transport was companyfined only to the exclusive right of the State to purchase kendu leaves. No question was raised regarding the exclusive right of transport under s. 3 which prohibited others, save the State, its authorised officers and agents, from transporting the leaves from one place to another, and therefore, the Court did number express any opinion as regards that part of s. That question, therefore, is number companycluded by that decision and is open for determination. The impugned s. 5 raises in relation to the problem of transport two questions 1 whether the restrictions are an integral part of the trade monopoly it seeks to create, and therefore, free from any challenge as to their reasonableness under the latter part of Art. 19 6 , and 2 as regards its interpretation and scope. It may be recalled that in the Orissa case the Court declined to treat s. 4 of that Act which companyferred the exclusive right to fix the prices on the State as ail integral and organic part of the trade monopoly in Kendu leaves but treated it only as effectively abetting its implementation. Can an embargo on transport by anyone, save those mentioned in cls. a , b and c of s. 5 1 and the manufacturers of bidis and exporters of these leaves under the permit, be regarded as an integral and organic part of the trade monopoly in them, i.e., a monopoly in purchasing and selling them in such area or areas to which the Act is applied ? It may be as stated in the States companynter-affidavit that the trade monopoly can be effectively implemented only if the movement of the leaves is checked and regulated by companyfining the right of free movement to the State and its agents and under permits to the manufacturers of bidis and the exporters and that if free movement were -allowed there would be loopholes which would suffer illegitimate acquisitions and sales in leaves smuggled through the areas where they grow, raising also difficulties in checking the stocks legitimately purchased from Government. If a person were to purchase a quantity of leaves and is allowed to move it freely from the unit where it is purchased to his warehouse outside that unit and from there to other points, it might be easy for such a purchaser to effect illegitimate sales and purchases and yet show at the same time the companyrect stock when checked by the authorities. It may also be that without the restrictions of movement it would become difficult, if number impossible, to identify the stock of a manufacturer or an exporter when checked in his warehouse as the one which he had purchased from Government. All this may be true, but is the prohibition or regulation of transport an integral or essential part of the monopoly without which the monopoly which the Act seeks to create cannot companye into being ? The long title of the Act recites that the Act was enacted for regulating the trade in tendu leaves by creating a State monopoly in such trade. Trade in tendu leaves would companysist of dealing in those leaves, i.e., their purchase and sale. Transport of the leaves once purchased or sold would number prima facie be an organic or integral part of dealing in those leaves. It is something extraneous to dealing in those leaves, something which takes place after the purchase or the sale thereof is companypleted and property in them has passed from the dealer to the purchaser and therefore does number form part of the trade in that companymodity. That being so, the restrictions on their transport companytained in s. 5 cannot be held to be the integral part of the trade monopoly but as ancillary Or incidental thereto, made for its effective enforcement. If that be so, it affects the right of the purchaser under Art. 19 1 f to hold and to dispose of the goods he has acquired, a right which is number companyrelated, as the right under cl. g is, with the monopoly which the section seeks to create. It follows, therefore, that such a provision would have to pass the test of reasonableness under cl. 5 and the first part of cl. 6 of Art. 19. That would also be the position in respect of Art. 304 b . But since the requirement of these provisions is the same the yardstick of reasonableness would be companymon to all these cases. It is well recognised that when an enactment is found to infringe any of the fundamental rights guaranteed under Art. 19 1 , it must be held to be invalid unless those who support it can bring it under the protective provisions of cl. 5 or cl. 6 of that Article. To do so, the burden is on those who seek that protection and number on the citizen to show that the restrictive enactment is invalid. cf. Saghir Ahmad v. The State of U.P. 1 and Khyerbari Tea Co. Ltd. v. The State of Assam 2 . That leads us to the next question as to the scope of the embargo on movement imposed by s. 5. If read literally, sub- s. 1 places -a total ban on any and every person against transporting the leaves, except those only mentioned in cls. a , b and c therein. Sub-s. 2 also, if read literally, would mean that an exception is made only in the case of a a grower who can move his leaves freely but within the unit where they have grown, and b . a purchaser who has purchased the leaves for manufacturing bidis within the State or for their export outside the State, but under a permit and in accordance with its terms and companyditions. Section 5 read thus, therefore, would mean that except for these two categories of persons, numberone can apply for a permit to move the leaves from one place to another as if the legislature intended that the leaves must remain where they -are when purchased. Does it mean that a person who purchases these leaves for purposes other than manufacture of bidis or export cannot move them even from the unit where he has purchased to his place of residence or business ? That would appear to be so because the provisions for a permit apply only to the manufacturer of bidis and the exporter and to numberother purchaser. That manifestly companyld number have been the intention of the legislature, for, the leaves being perishable, they are liable to. get destroyed if their movement is totally forbidden. Quite apart from this companysideration, a mere literaly or mechanical companystruction would number be appropriate where 1 1955 1 S.C.R. 707. 2 1964 5 S.C.R.975, 1003. important questions such as the impact of an exercise of -a legislative power on companystitutional provisions and safeguards thereunder are companycerned. In cases of such a kind, two rules of companystruction have to be kept in mind 1 that companyrts generally lean towards the companystitutionality of a legislative measure impugned before them upon the presumption that a legislature would number deliberately flout a companystitutional safeguard or right, and 2 that while company- struing such an enactment the companyrt must examine the object and the purpose of the impugned Act, the mischief it seeks to prevent and ascertain from such factors its true scope and meaning. The object of the Act clearly was to regulate trade in tendu leaves in the public interest and for that end to create a State monopoly so that the purchasers of these leaves may number exploit the need -and the poverty of small growers and pay the least possible price. The legislature thought that it was in the public interest to entrust the entire trade to the State who would fix reasonable prices in companysultation with an advisory companymittee and make at the same time companypulsory for the State to purchase the entire stock which the growers would offer for sale at those prices. Considering the ,object of the Act, it cannot be companyceived that upon the assumption that such a monopoly was in the public interest the exclusive right of the State to purchase and sell these leaves is unreasonable. But the question as regards their transport is far from easy of solution. It may be that free movement of leaves even after they are sold to merchants would create difficulties in effectively implementing the intended monopoly in their trade or that such free movement would make checking of illegitimate transactions in the leaves difficult. But then it is difficult to companyceive of a monopoly in this particular companymodity, as in others, without any likely loopholes whatsoever. Can the State, therefore, to plug all such loopholes pass a measure which, according to the appellants, imposes unreasonable restrictions and which results in stultifying their business ? There is a strong school of thought which believes that monastic tendencies in economics spell stagnation and that pluralism is as much desirable in economics as in politics and other fields of life. That may or may number be companyrect, but take the present case as an illustration. According to the appellants, they manufacture as many as 1-1/2 crores of bidis a day. They have established a net-work of branches in several areas of the State.- Wherever they purchase the leaves they have to be moved to their warehouses outside and from there to their branches and then to the sattedars who undertake to have bidis rolled through mazdoors to whom they in turn distribute tobacco, and these leaves supplied to them by the appellants. Even according to the Divisional Forest Officer there were as many as 6 or 7 thousand sattedars in Saugor district alone with whom manufacturers of bidis had companytracts as mentioned -above. The number of mazdoors whom these sattedars employ for rolling bidis would certainly be companysiderable. We were told that practically every household in villages scattered from one another engages itself in bidi-rolling labour. It is also companyceivable that in some of the households number only the adults but the minors also would be engaged in this work. If the movement of leaves from stage to stage were to be so regulated as to require permits at each stage- it is, number difficult to imagine that companysiderable inconvenience to all engaged in the business of manufacturing bidis would inevitably ensue. The companyrespondence on record shows that at one time even the Divisional Forest Officer was of the view that it would be impossible for the staff under him to companye with the work of issuing permits at each stage of the movement of the leaves and therefore permitted the branch managers of the appellants to issue permits when leaves were moved from their branches to the sattedars. That relaxation was, however, cancelled as in his view the branch managers began to move the leaves in bulk companytrary to his intention in granting that relaxation. In spite, however, of the inconvenience which such a system might result in, there can, at the same time be little doubt, and even Mr. Sen agreed, that some kind of check on movement is necessary, for, without it the monopoly created by the Act would number effectively function. In our view a permit system which regulates the movement of leaves purchased by a manufacturer of bidis from the unit where they are purchased to his warehouse, then to the branches and to the sattedars cannot upto that stage be regarded as unreasonable in the light of the object of the Act, the economic companyditions prevailing in the State and the mischief which it seeks to cure. At the same time to expect the manufacturer to get permits issued to his sattedars for distribution by them to the innumerable mazdoors of companyparatively small quantities of these leaves would be number only unreasonable but frustrating. The various checks imposed under the rules on the manufacturer by way of his having to maintain stock registers, submit periodical returns, the right of inspection of the authorities etc. are sufficient to reasonably check transactions companytrary to the Act. But, companysidering the extraordinary inconvenience which would be caused to the manufacturer and balancing that with the mischief feared by the State, we think that when s. 5 was enacted the legislature companyld number have intended that the manufacturer should also obtain permits in respect of the leaves distributed to the vast number of mazdoors for rolling the bidis by the sattedars who are themselves companysiderable in number. Though, therefore, s. 5 is companyched in apparently wide language, the very object of the Act, as disclosed in its long title, companytains inherent limitations against an absolute or as strictly regulated a ban as it would at first reading of the section appear. In our view, reading s. 5 2 along with rule 9 of the said rules, what they are intended to require is that a manufacturer must have a permit to move the leaves purchased by him from the unit or units where he has purchased them to his warehouse outside and from there to his branches -and also when he transports them to his sattedars. But, numbersuch permit was intended to be necessary when the leaves are distributed for the manufacture of bidis by these sattedars to the mazdoors whom he employs. A companystruction so limited in its sweep is companymendable as it is companysistent with the object of the Act and is also in harmony with cls. 5 and 6 of Art. 19 1 and cl. b of Art. 304. Regarding the ban against movement of old leaves companytained in the order dated June 4, 1965, there can be numberdifficulty as it is companyceded that old leaves in the companytext mean those which were in stock when these rules came into force and number the balance of leaves left unconsumed from year to year. So companystrued, the restrictions against free transport cannot be held to be unreasonable and the validity of s. 5 and rule 9 as also the order of June 4, 1965, except to the extent of its requiring a permit for distribution to the mazdoors, cannot be successfully challenged. So far as the order dated October 12, 1965 is companycerned, it was a mere cancellation of a companycession and such cancellation cannot be challenged as a restriction, much less as an unreasonable restriction.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 870 of 1966. Appeal by special leave from the judgment and order dated June 14, 1965 of the Bombay High Court in Special Civil Application No. 371 of 1965. S. Shukla, for the appellant. C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judg- ment of the division bench of the Bombay High Court. The only question for decision is whether the High Court companyld interfere under Arts. 226 227 of the Constitution with the order of the appellate companyrt in proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called the Act, when a petition for revision under S. 115, Civil procedure Code, against the same order had been previously dismissed by a single Judge of that companyrt. The appellant is the owner of a house in Poona. The res- pondent, who was a teacher, was the tenant of a block of four rooms on the first floor of the house. In 1958 he was transferred to another town Wai where he was allotted suitable residential accommodation. His son, however, stayed on in Poona as he was studying there. The appellant filed a suit in the companyrt of Judge, Small Causes, under the provisions of the Act for possession of the suit premises, inter alia, on the ground that the respondent had acquired suitable -accommodation elsewhere. The position taken up by the respondent was that his son was required to stay on in Poona and for that reason it companyld number said that the had acquired suitable residence at Wai. Moreover he had gone away from Poona only temporarily and on his return the pre- mises would be required for his own use. The trial companyrt held that only a part of the premises which were required by the son should be vacated. It granted a decree for possession of two out of four rooms and directed proportionate reduction of the rent. Both sides filed appeals in the companyrt of the District Judge. The Extra Assistant Judge who disposed them of was of the view that the companyrt was number empowered to bifurcate the premises. It was either suitable for the whole family or it was number suitable. But he affirmed the decree on the ground that the order of the trial companyrt was an equitable one. The respondent preferred a petition for revision under s. 1 15 of the Code of Civil Procedure before the High Court. A learned Single Judge who heard the petition dismissed it as he was number satisfied that the appellate companyrt had acted in exercise of its jurisdiction illegally or with material irregularity. The respondent moved a petition under Arts. 226 and 227 of the Constitution challenging the same order of the appellate companyrt. Following a decision of a full bench in K. B. Sipahi malani v. Fidahussein Vallibhoy 1 the division bench which heard the writ petition held that in -spite of the dismissal of the petition by the learned Single Judge there companyld be interference under Arts. 226 and 227 of the Constitution on a proper cast being made out. After going into the merits the bench expressed the view that the respondent had number acquired an alternative suit able residence. The companyrts below were therefore,. wrong, in companying to the companytrary companyclusion. As s. 13 I 1 of the Act had been misconstrued and the error was apparent on the record the orders of the companyrts below were set aside. Now as is well known s. II 5 of the Civil Procedure Code empowers the High Court to call for the record of any cast which has been decided by any companyrt subordinate to it and in which numberappeal lies to it. It can interfere if the subordinate companyrt appears to have exercised the jurisdiction number vested in it by law or to have failed to exercise the jurisdiction so vested on to have acted in the exercise of its jurisdiction legally or with material illegality. The limits of the jurisdiction of the High Court under this section are well defined by a long companyrse of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the orders of the subordinate companyrt has become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of the subordinate companyrt cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Art. 226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the subordinate companyrt has number become merged in that of the High Court that it may be open to party to invoke the extraordinary writ jurisdiction of that companyrt. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a subordinate companyrt in a writ petition when a petition for revision under S. 115, C.P.C., against the same order has been dismissed. Such a companysideration will also enter into the exercise of discretion in a petition under Aft. 226 or 227, 1 58 B.L.R. 344, The Bombay High Court in K. B. Sipahimalanis 1 case made a distinction between an appellate jurisdiction and a revisional jurisdiction. A right of appeal is a vested right and an appeal is a companytinuation or a rehearing of the suit. A revision, however, is number a companytinuation or a rehearing of the suit number is it obligatory upon the revisional companyrt to interfere with the order even though the order may be improper or illegal. If the revisional companyrt interferes the order of the lower companyrt does number merge in the order passed by a revisional companyrt but the order of the revisional companyrt simply sets aside or modifies the order of the lower companyrt. it was this argument which mainly prevailed before the Bombay bench. It would appear that this Court has taken a view which runs companynter to that of the Bombay High Court. Although the case of Madan Lal Rungta v. Secy. to the Government of Orissa 2 was number one which had been decided under s. 115 of the Civil Procedure Code but the ratio of that decision is apposite. The State Government of Orissa a rejected the application of the appellant there who had applied for grant of a mineral lease. He made in application for review to the Central Government under Rule 57 of the Mineral Concession Rules which was rejected. He moved the High Court under Art. 226 of the Constitution which was also dismissed. The appellant came up by special leave to this Court. His main companytention was that the Central Government had merely dismissed the review petition and the effective order rejecting his application for the mining lease was that of the State Government. The High Court, thus, had jurisdiction to grant a writ under Art. This companytention was negatived and it was held that the High Court was right in taking the view that it had numberjurisdiction to issue a writ as the final order was that of the Central Government which was number within its territorial jurisdiction. The ratio of this decision is that it was the order of the Central Government dismissing the review peti- tion which was the final order into which the order of the State Government had merged. It would appear that their lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nath Dey v. Suresh Chandra Dey 3 . There is numberdefinition of appeal in the Code of Civil Procedure, but their Lordship have numberdoubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term. . . . 1 58 B.L.R. 344. 2 1962 3 Supp. C.R. 906. 3 591.A.283, 287. L13Sup.CI/69-7 Similarly in Raja of Ramnad v. Kamid Rowthen Ors. 1 a civil revision petition was companysidered to be an appropriate form of appeal from the judgment in a suit of small causes nature. A full bench of the Madras High Court in P. P. P. Chidambara Nadar v. C. P. A. Rama Nadar Ors. 2 had to decide whether with reference to Art. 182 2 of the Limitation Act, 1908 the term appeal was used in a restrictive sense so as to exclude revision petitions and the expression appellate companyrt was to be companyfined to a companyrt exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law in- cluding the decisions of the Privy Council mentioned above the full bench expressed the view that Art. 182 2 applied to civil revisions as well and number only to appeals in the narrow sense of that term as used in the Civil Procedure Code. In Secretary of State for India in Council v. British India Steam Navigation Company 3 and order passed by the High Court in exercise of its revisional jurisdiction under S. 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning, of S. 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General v. Sillem 4 and of Subramania Ayyar, J. in Chappan v. Moidin 5 on the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the companyrt below. Two things which were required to companystitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution of United States vol. 2, Art. 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and companyrects the proceedings in a cause already instituted and does number create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Art. 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or, by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of companymon law origin, and it removes numberhing for re-examination but the law. The former mode is 1 53 I.A. 74. 2 A.I.R. 1937 Mad. 385. 3 13 C.L.J. 90. 4 1864 10 H.L.C. 704. usually adopted in cases of equity and admiralty jurisdiction the latter, in suits at companymon law tried by a jury. Now when the aid of the High Court is invoked on the revi- sional side it is done because it is a superior companyrt and it can interfere for the purpose of rectifying the error of the companyrt below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior companyrt. It is only one of the modes of exercising power companyferred by the Statute basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do number, therefore, companysider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In U. J. S. Chopra v. State of Bombay 1 the principal of merger was companysidered with reference to s. 439 of the Criminal Procedure Code which companyfers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a numberice and a full hearing, in the presence of both the parties would replace the judgment of the lower companyrt thus companystituting the judgment of the High Court-the only final judgment to be executed in accordance with law by the companyrt below. In Chandi Prasad Chokhani v. The State of Bihar, 2 it was said that save in exceptional and special circumstances this Court would number exercise its power under Art. 136 in such a way As to bypass the High Court and ignore the latter decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal. Such exercise of power would be particularly inadvisable in a case where the result might lead to a companyflict of decisions of two companyrts of companypetent jurisdiction. In our opinion the companyrse which was followed by the High Court, in the present case, is certainly one which leads to a companyflict of decisions of the same companyrt. Even on the assumption that the order of the appellate companyrt had number merged in the order of the single Judge who had dis- posed of the revision petition we are of the view that a writ petition ought number to have been entertained by the High Court when the respondent bad already chosen the remedy under s. 115 of A.I.R. 1955 S.C. 633. 2 1962 2 S.C.R. 276. the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would number be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate companyrt. The refusal to gray relief in such circumstances would be in companysonance with the anxiety of the companyrt to prevent abuse of process as also to respect and accord finality to its own decisions. In the result the appeal is allowed and the judgment of the division bench of the High Court is hereby set aside.	Case appeal was accepted by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 8 of 1966. Appeal by special leave from the judgment and order dated April 29, 1965 of the Punjab High Court, Circuit Bench at Delhi in Criminal Appeal No. 164-D of 1962. Bishan Narain, K. K. Raizada and A. G. Ratnaparkhi, for the appellant. Sardar Bahadur and Yougindra Khushalani, for respondent No. 1. N. Sachthey, for respondent No. 2. The Judgment of the Court was delivered by Ramaswami, J. On August 29, 1960 Shri Sham Sundar Mathur, Municipal Prosecutor of the Delhi Municipal Corporation filed a companyplaint in the companyrt of Magistrate First Class against the respondent, Jagdishlal under S. 7 read with S. 16 of the Prevention of Food Adulteration Act, 1954 37 of 1954 . In the said companyplain Shri Sham Sundar Mathur said that lie was companypetent to file the companyplaint under S. 20 of the aforesaid Act in accordance with a resolution passed by the Corporation in its meeting held on December 23, 1968. By his order dated April 30, 1962 the learned Magistrate acquitted the respondent. The Delhi Municipal Corporation made an application to the High Court asking for special leave under s. 417 of the Code of Criminal Procedure to appeal against the order of acquittal. The application was -ranted on September 3, 1962. When the appeal came up for hearing a preliminary objection was raised on of the respondent that the only person companypetent to file the appeal was the companyplainant, Shri Sham Sundar Mathur. But the leave application was number filed by him and, therefore, the Municipal Corporation was number companypetent to prosecute the appeal. It was companytended that only the companyplainant was companypetent to present an application for special leave under S. 417 3 of the Code of Criminal Procedure. As the companyplainant in this case was Shri Sham Sundar Mathur the appeal companyld number be filed by the Delhi Municipal Corporation. The High Court upheld the preliminary objec- tion of the respondent and dismissed the appeal by its order dated April 29, 1965. This appeal is brought by special leave on behalf of the Delhi Municipal Corporation against the judgment of the High Court dated April 29, 1965 in Cr. Ar. No. 163-D of 1962. Section 20 of the Prevention of Food Adulteration Act, 1954 states No prosecution for an offence under this Act shall be instituted except by, or with the written companysent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in section 12, if he produces in companyrt a companyy of the report of the public analyst along with the companyplaint. Section 417, sub-ss. 1 , 2 and 3 of the Code of Criminal Procedure after its amendment by Act 26 of 1955 provide Subject to the provisions of sub-section 5 , the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment companystituted under the Delhi Special Police Establishment Act, 1946 XXXV of 1946 , the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. If such an order of acquittal is passed in any case instituted upon companyplaint and the High Court, on an application made to it by the companyplainant in this behalf, grants special leave to appeal from the order of acquittal, the companyplainant may present such an appeal to the High Court. The principal question to be determined is whether the company- plaint dated August 29, 1960 was instituted by the Delhi Municipal Corporation. It is argued on behalf of the respondent that the companyplaint petition was number made and signed by the person companypetent under the Delhi Municipal Corporation Act, 1957 to exercise powers of the, Corporation in the matter of institution of legal proceedings. In our opinion there is substance in this companytention. The only provision under the Delhi Municipal Corporation Act, 1965 which companyfers power to institute legal proceedings is s. 476 1 h which states The Commissioner may- h institute and prosecute any suit or other legal proceeding, or with the approval of the Standing Committee withdraw from or companypromise any suit or any claim for any sum number exceeding five hundred rupees which has been instituted or made in the name of the Corporation or of the Commissioner It is clear that the phrase other legal proceedings includes the power to institute a companyplaint before a Magistrate and hence it is the Commissioner alone who companyld exercise the power as there is numberother provision in the Act which companyfers such power on anyone else. This view is supported by the decision of this Court in Bailavdas Agarwala v. J. C. Chakravarty 1 in which it was pointed out that a companyplaint under The Calcutta Municipal Act, 1923 as applied to the Municipality of Howrah, would only be filed by the au thorities mentioned therein and number by an ordinary citizen. Section 537 of that Act provided that the Commissioners may institute, defend or withdraw from legal proceedings under the Act under s. 12 the Commissioners can delegate their functions to the Chairman, and the Chairman may in his turn delegate the same to the Vice-Chairman or to any municipal officer. It was observed in that case that the machinery provided in the Act must be followed in enforcing its provisions, and it was against the tenor and scheme of the Act to hold that s. 537 was merely enabling in nature. The principle invoked in that case was that adopted by the Privy Council in Nazir Ahmad v. King Emperor 2 viz. that where a power is given to do a certain thing in a certain way, the thing must be done in that way or number at all. It was, therefore, held that if a legal proceeding was instituted under the Municipal Act in question, it must be done in accordance with the provisions of the Act and number otherwise. But the question presented for determination in the present appeal is somewhat different. Under s. 20 of Act 37 of 1954 the prosecution for the offence may be instituted either a by the Central Government or the State Government or a local authority or b a person authorised in that behalf by general or special order by the Central Government or the State Government or a local authority. Section 2 vii of Act 37 of 1954 defines a local authority to mean in the case of a local area which is a 1 1962 3 S.C.R. 739. 2 63 I.A. 372 at 381. pality, the municipal board or municipal companyporation. A companyplaint under s. 20 of the Act may, therefore, be instituted either by the Municipal Corporation or by a person authorised in its behalf by general or special order by the Municipal Corporation. The Resolution of the Delhi Municipal Corporation dated December 23, 1958 reads as follows Subject Authorising the Municipal Prosecutor and the Assistant Municipal Prosecutor to launch Prosecutions under section 20 of the Prevention of Food Adulteration Act, 1954. The area under the jurisdiction of the Delhi Municipal Corporation has been declared a local area under s. 2 vii of the Prevention of Food Adulteration Act vide Chief Commissioners Notification No, F.32 30 58-M and PH i dated 13th June, 1958 published in the Delhi Gazette Part IV dated 26th June, 1959 and companysequently the Municipal Corporation of Delhi is the Local Authority for that area within the meaning of section 2 vii of the said Act. Section 20 of the Prevention of Food Adulteration Act, 1954 companytemplates the appointment of persons who shall be authorised to institute prosecutions under this Act by the Local Authority companycerned. Shri Sham Sundar Mathur, M.A., LL.B., Municipal Prosecutor and Shri Bankey Behari Tawkley, Assistant Municipal Prosecutor were authorised by the erstwhile Delhi Municipal Committee tinder the above section. Shri Vijay Kumar Malhotra moved the following resolution, which was seconded by Shri Prem Sagar Gupta Resolved that the recommendations of the Commissioner vide letter No. 139/Legal/58 dated 1-12-58 regarding authorising the Municipal prosecutor and the Assistant Municipal Prosecutor to launch prosecutions under section 20 of the Prevention of Food Adulteration Act, 1954 be approved. The resolution was carried. In the present case Shri Sham Sundar Mathur, Municipal Prosecutor filed the companyplaint under s. 20 of Act 37 of 1954 under L14Sup.C.I/69-8 the authority given to him by the resolution of the Municipal Corporation. Since the Municipal Corporation, Delhi, is a local authority within the meaning of S. 20 of Act 37 of 1954 and since it companyferred authority on the Municipal Prosecutor the companyplaint was properly filed by Sham Sundar Mathur. The question is whether the Delhi Municipal Corporation or Shri Mathur was the companyplainant within the -meaning of S. 417 3 of the Code of Criminal Procedure. It was argued on behalf of the respondent that the companyplainant was Shri Sham Sundar Mathur, the Municipal Prosecutor and the Delhi Municipal Corporation was number companypetent to make an application for special leave under s. 417 3 , Cr. P.C. We are unable to accept this argument as companyrect. It is true that Shri Sham Sundar Mathur filed the companyplaint petition on August 29, 1960. But in filing the companyplaint Shri Mathur was number acting on his own personal behalf but was acting as an agent authorised by the Delhi Municipal Corporation to file the companyplaint. It must, therefore, be deemed in the companytemplation of law that the Delhi Municipal Corporation was the companyplainant in the case. The maxim qui per alium facit per seipsum facere videtur he who does an act through another is Jeemed in law to do it himself illustrates the general doctrine on which the law relating to the rights and liabilities of principal and agent depends. We are, therefore, of opinion that Shri Mathur was only acting in a representative capacity and that the Delhi Municipal Corporation was the companyplainant within the meaning of S. 417 3 of the Code of Criminal Procedure and the petition for special leave and the appeal petition were properly instituted by the Delhi Municipal Corporation.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1079 to 1086 and 1088 to 1099 of 1966. Appeals from the judgment and orders dated August 31, 1965 of the Kerala High Court in Writ Appeals Nos. 134 of 1964 etc. R. Gokhale, B. Datta, 1 B. Dadachanji and O.C. Mathur, for the appellants in all the appeals . K. Daphtary, A. S. Nambiar and Lily Thomas, for respondent No. 1 in all the appeals . P. Singh and M.R.K. Pillai, for respondent No. 2 in all the appeals . The Judgment of the Court was delivered by Shah, J. In a group of petitions presented before the High Court of Kerala the appellants challenged the validity of the levy of timber-tax by the Corporation of Calicut on the grounds, inter alia, that the State Legislature is incompetent to impose that tax under the Kerala Act 30 of 1961. Govindan Nair, J., declared that the Legislature was incompetent to enact s. 126 of the Calicut City Municipal Act, 1961 30 of 1961 . The decision of Govindan Nair, J., was reversed in appeal by a Division Bench of the High Court and the petitions were dismissed. By virtue of Art. 246 read with Sch. VII, Item 52, List II of the Constitution, the State may legislate in the matter of tax on the entry of goods into a local area for companysumption, use or sale therein. The appellants companytend that s. 126 companyferring authority to impose timber tax violates the restrictions upon the legislative power imposed by the Constitution and on that account is void. Section 98 of the Act enumerates the taxes and duties which the Muncipality may levy and one of the taxes described in el. e is tax on timber brought into the city. Section 126 declares a charge of tax on timber brought into the city it provides, insofar as it is material If the Council by a resolution determine that a tax shall be levied on timber brought into the city, such tax shall be levied at such rates, number exceeding five rupees per ton, and in such manner as may be determined by the Council Provided that numbertax shall be levied on any timber brought into the city in the companyrse of transit to any place outside the city and directly removed out of the city by rail, road or water. No timber shall, except in the case referred to in the proviso to sub-section 1 be brought into the city unless the tax due thereon has been paid. The tax shall be levied on timber kept within the city for sale if the Commissioner has reason to believe that the tax, if any, due thereon has number been paid . . . . . . . Power to make bye-laws for sale and seizure of timber in respect of which tax is number paid and for carrying out the provisions relating to the levy of tax is companyferred by s. 126 6 and s. 1369 1 of the Act. The Corporation of Calicut has framed byelaws relating to the levy and companylection of timber tax. It is provided by el. 3 that the tax on timber shall be paid immediately on timber being brought into the city. Bye-law 7 provides If timber is brought into the city and it is, claimed that it is in the companyrse of transit to a place outside the city and number for companysumption, use or sale within. the city and if in the opinion of the authority or officer authorised to companylect the tax on timber, such timber brought into the city is number for the purpose of transit but for the purpose of companysumption, use or sale therein, such authority or officer may demand from the person claiming exemption an amount equal to the tax leviable for such timber as security. If the person, who has paid the security satisfies Commissioner within 14 days from the date of payment that the timber in respect Of which the amount was paid was brought into the city in the companyrse of transit wad number for companysumption, use or sale therein the Commissioner shall refund the amount to such person. Otherwise the same shall be appropriated to wards tax due on such timber. 3 . . . . . . . 4 . . . . . . . The High Court held that timber may be imported within the limits of the Corporation for four purposes-- 1 for companysumption in the city 2 for use in the city 3 for sale in the city and 4 for transit through the city, and since all the four purposes were within the enacting part of the section and the proviso. to s. 126 1 having eliminated the right of the Municipality to levy tax for transit through the city, the taxing power companyferred by entry 52, List II of the Seventh Schedule was ensured and its companystitutional strength and validity upheld thereby. Counsel for the appellants companytends that the High Court was in error in holding that entry of timber into the Municipal area may be only for companysumption, use, or sale within the Municipality or in the companyrse of transit through the limits of the municipality. He says that the entry may for instance be merely for storage of the goods within the limits of the municipality and a provision levying tax on goods entering the limits of the municipality with L14 Sup.CI/69--11 out specification of the purpose is beyond the legislative power of the State. Entry of goods within the local area for companysumption, use or sale therein is made taxable by the State Legislature authority to impose a general levy of tax on entry of goods, into a local area is number companyferred on the State Legislature by item 52 of List II of Sch. VII of the Constitution. The Municipality derives its power to tax from the State Legislature and can obviously number have authority more extensive than the authority of the State Legislature. If the State Legislature is companypetent to levy a tax only on the entry of goods for companysumption, use or sale into a local area, the Municipality cannot under a legislation enacted in exercise of the power companyferred by item 52, List II have power to levy tax in respect of goods brought into the local area for purposes other than companysumption, use or sale. The authority of the State Legislature itself. being subject to a restriction in that behalf, s. 126 may reasonably be read as subject to the same limitations. When the power of the Legislature with limited authority is exercised in respect of a subject-matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is companypetent to legislate and to numberother and that the Legislature did number intend to transgress the limits imposed by the Constitution see In re Hindu Womens Rights to Property Act, 1937 1 . To interpret the expression brought into the city used in s. 126 1 as meaning brought into the city for any purpose and without any. limitations would, in our judgment, amount to attributing to the Legislature an intention to ignore the companystitutional limitations. The expression brought into the city in s. 126 was therefore rightly interpreted by the High Court as meaning brought into the municipal limits for purposes of companysumption, use or sale and number for any other purpose. While we agree with the ultimate companyclusion of the High Court we may observe that we do number agree with the assumption made by the High Court that the entry of goods into the city may be only for the four purposes mentioned by the High Court number do we hold that the proviso exempts from taxation timber brought into the city in the companyrse of transit even when it is number directly removed out of the city by rail, road or water. The proviso, in our judgment, has a limited operation. It merely provides that the municipality shall number be entitled to levy a tax on timber brought into the city in the companyrse of transit to any place outside the city and directly removed out of the city by rail, road or water. But on that account we are unable to hold that the proviso is enacted with the object of bring- 1 1941 F.C.R. 12. ing to tax all entry, of timber which is number brought into the city in the companyrse of transit to any place outside .the city and directly removed out of the city by rail, road or water. The appeals fail and are dismissed. There will be numberorder as to companyts in these appeals.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1937 of 1966. Appeal from the judgment and order dated July 19, 1965 of the Punjab High Court, Circuit Bench at Delhi in Regular Second Appeal No. 251-D of 1964. T. Desai and I. N. Shroff, for the appellant. V. Gupte, K.L. Mehta, Yogeshwar Dayal, M.M. Kshatriya and G.S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Punjab High Court Circuit Bench, Delhi . The facts may be briefly stated One Gajju Mal had five sons, Badri Pershad, Ganesh Dass, Devi Chand, Narain Das and Ishar Das. The first four were by his first wife, whereas the 5th son Ishar Das was by his second wife Smt. Kanso Devi Gajju Mal died in 1947 leaving him surviving the said five sons and Smt. Kanso Devi. On August 5, 1950 Tulsi Ram Seth was ,appointed by the parties as an arbitrator for resolving certain differences which had arisen relating to partition of the urban immovable properties and other assets and liabilities left by Gajju Mal. On October 31, 1950 the arbitrator gave his award. Under clause 6 of this award Smt. Kanso Devi was awarded three sets of property including bungalow No. 20, Alipore Road, Delhi. The award was made the rule of the companyrt. It was stated in the award that Smt. Kanso Devi would have a widows estate in the properties awarded to her. It was also provided that the immovable properties allotted and awarded to the various parties would be individually and exclusively owned by them and each party would be entitled to take physical or companystructive possession of the properties allotted and awarded to his or her share. Badri Pershad, the appellant before us, filed a suit in August 1961 against the respondent Smt. Kanso Devi pleading inter alia that she was a limited owner of the property which had been given to her by the award and that she was trying to alienate the same and companymit acts of waste to the prejudice of the reversions. He asked for a perpetual injunction restraining her from companymitting acts of waste and from alienating the suit properties. The respondent companytested the suit. On the pleas of the parties the trial companyrt framed seven issues out of which the material one was No. 4 which was in these terms , Whether the defendant was awarded life estate only in the property in suit .9,, On April 17, 1963 the trial companyrt dismissed the suit holding that numberact of waste on the part of the respondent had been proved and that she had inherited the property under the Hindu Womens Right to Property Act, 1937 and that the award had simply sepa- rated her share by metes and bounds, and under s. 14 1 of the Hindu Succession Act she had become full owner thereof. The first appellate companyrt and the High Court affirmed the decree of the trial companyrt. The sole question for determination is whether the case of the respondent was governed by sub-s. 1 or sub-s. 2 of s. 14 of the Hindu Succession Act, hereinafter called the Act. This section reads 14 1 Any property possessed by a female Hindu, whether acquired before or after the companymencement of this Act, shall be held by her us full owner thereof and number as a limited owner. Explanation.--In this sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or number, before, at or after her marriage, or by her own skill or exertion, or by purchase of by prescription or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the companymencement of this Act. 2 Nothing companytained in sub-section 1 shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil companyrt or under an award where the terms of the gift will or other instrument or the decree, order or award prescribe restricted estate in such property. According to the appellant the suit property was acquired by the respondent under the award given by Tulsi Ram Seth or alternatively under the decree based on the award, the estate being restricted by both the award and the decree. The provision in the award that the respondent was to have a widows estate under Hindu Law, it is said, companyferred on her only a limited estate and sub-s. 1 would be inapplicable. The position of the respondent throughout has been that she had interest in all the joint properties together with the right to partition under the provisions of Hindu Womens Right to Property Act, 1937 Act XVIII of 1937 . Thus the property was acquired by the respondent at a partition within the terms of the Explanation to sub-s. 1 of s. 14. As she was possessed of that property at the time the Act came into force she became full owner thereof by virtue of s. 14 1 of the Act even though previously she was a limited owner. Under s. 3 1 of Act XVIII of 1937 as amended by Act XI 193 8 when a Hindu governed by any School of Hindu law other than the Dayabhaga School died intestate leaving separate property his widow was entitled to the same share as a son in respect ,of the property left by her husband. Under s. 3 2 when any such Hindu died having at the time of his death an interest in a -Hindu Joint Family property his widow was to have the same interest in the property as he himself had. Sub-s. 3 provided that any interest devolving on a Hindu widow under the aforesaid provision was to be a limited interest known as Hindu womens ,estate but that the widow was to have the same right of claiming partition as a male owner. The case in the companyrts below proceeded on the footing that all the properties left by Gajju Mal were his separate acquisitions. It was apparently for that reason that the High Court gave a finding that before the partition effected by the arbitrator by means of the award, the five sons and the widow respondent of Gajju Mal enjoyed equal shares in the properties left by him. The point for our companysideration is narrowed down to this. When a female acquires an interest under the provisions of Act XVIII of 1937 in the properties of her husband which are subsequently separated by means of a partition does she become an absolute owner under sub-s. 1 of s. 14 of the Act or does she get only a restricted estate under sub-s. 2 of that section ? The companytention of the learned companynsel for the appellant is that the companyrt should first look at sub-s. 2 and if the case does number fall. within its ambit and, scope then alone sub-s. 1 will become applicable. This manner of reading of the section is number warranted either on principle or authority. The section has to be read as a whole and it would depend on the facts of each case whether the same is companyered by the first Sub-section or sub-s. 2 . The -critical words in sub-s. 1 are possessed and acquired. The word possessed has been used in its widest companynotation and it may either be actual or companystructive or in any form recognised by law. In the companytext in which it has been used in s. 14 it means the state of owning or having in ones hand or power see Gumrnalapura Taggina Matada Kotturuswami v. Setra Veerayya Ors. 1 . In S.S. Munna Lal v.S.S. Rajkumar Ors. 2 it was held that 1/4th share of a female which had been declared by the preliminary decree passed before the enactment of the Act was possessed by her within the meaning of s. 14 and she became the full owner so that on her death the said property descended to her grandsons in accordance with the provisions of ss. 15 and 16 of the Act. The word acquired in sub-s. 1 has also to be given the widest possible meaning. This would be so because of the language of the Explanation which makes sub-s. 1 applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a females own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the companymencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be numbermanner of doubt that she is number only possessed of that property at the time of the companying into force of the Act but has also acquired the same before its companymencement. Sub-section 2 of s. 14 is more in the nature of a proviso or an exception to sub-s. 1 . It can companye into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any preexisting right in the female Hindu who is in possession of the property. The Madras High Court was right in the observations made in Rangaswami Naicker v. Chinnammal Another 1 that sub-s. 2 made it clear that the object of s. 14 was only to remove the disability on women imposed by law and number to interfere with companytracts, grams or decrees etc. by virtue of which a womens right was restricted. In Sukhram Another v. Gauri Shankar Another 2 , one Kishan Devi had acquired in 1952 the same interest in the property of the joint family which her husband Hukan Singh had under the provisions of Act XVIII of 1937.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 163 of 1967. Appeal by special leave from the judgment and order dated March 6, 1967 of the Madhya Pradesh High Court in Criminal Revision No. 159 of 1966. L. Sanghi and P.C. Bhartari, for the appellants. N. Shroff, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave arises out of the following facts. Inspector Ahuja inspected the Municipal Council, Raipur, under the Motor Transport Workers Act, 1961---hereinafter referred to as the Act--and found that 50 transport workers, including drivers, companyductors, mechanics, etc., had been employed by the Council but the Council had number been registered as required under s. 3 1 of the Act. He filed a companyplaint before the Special Magistrate and Presiding Officer, Labour Court, who issued summons to the accused, namely, the Municipal Council and the Chief Municipal Officer, Municipal Council, Raipur. The accused appeared by companynsel and filed preliminary objections. Be fore the Magistrate two. points were taken 1 that the Municipal Council was number a motor transport undertaking within s. 2 g of the Act, and 2 that the Council was exempt under s. 38 of the Act insofar as it uses the vehicles for transporting sick or injured persons. and for maintenance of public order, i.e., for transporting night soil and refuse of the town free of charges. The Magistrate accepted these companytentions and dismissed the companyplaint and discharged the accused persons. The State of Madhya Pradesh filed a revision before the Sessions Judge, Raipur, who agreeing with the findings of the Magistrate, dismissed the revision. The State then filed a revision under s. 439, Cr. P.C. Three points were debated before the High Court 1 whether a revision lay under s. 439, Cr. P.C. The companytention was that the accused had been acquitted and number discharged and, therefore, only a.n appeal under s. 417. Cr. P.C., lay 2 that the Municipal Council does number fall within the definition of the expression motor transport undertaking in s. 2 g and 3 that the transport vehicles owned by the Municipal Council are exempt under s. 38 1 of the Act. The High Court overruled the preliminary objection and held that a revision lay under s. 439, Cr. P.C., because the order passed by the Magistrate was an order of discharge and number of acquittal. On the second point the High Court held that the Municipal-Council fell within the definition of the expression motor transport undertaking. On tire third point the High Court held that the vehicles of the Municipal Council did number companye within the exemption under s. 38 of the Act. The same points have been debated before us by the learned companynsel. Coming to the first point, we agree with the High Court that the order of the Magistrate was an order of discharge and number of acquittal. It is true that it is a summons case and numberformal charge is necessary to be framed under s. 242, Cr. P.C., but even so. here when the accused appeared, before anything was done the accused filed a preliminary objection and numberparticulars of the offence of which the accused was charged were even stated to him. Coming to the second point, it seems to us that the High Court was right in holding that the. Municipal Council is a motor transport undertaking as defined in the Act. It is necessary to set out the relevant definition in s. 2 of the Act. 2 g motor transport undertaking means a motor transport undertaking engaged in carrying passengers or goods or both by. road for hire or reward, and includes a private carrier n all other words and expressions used but number defined in this Act and defined in the Motor Vehicles Act, 1939, shall have the meanings respectively assigned to them in that Act. The expression private carrier is defined in the Motor Vehicles Act, 1939, to mean an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business number being a business of providing transport, of who. uses the vehicle for any of the purposes specified in sub-section 2 of section 42. A transport vehicle is defined in the Motor Vehicles Act, 1939, to mean a public service vehicle or a goods vehicle, and a goods vehicle is defined to mean any motor vehicle companystructed or adapted for use for the carriage of goods, or any motor vehicle number so. companystructed or adapted when used for the carriage of goods solely or in addition to passengers. Goods is defined as follows Goods includes live-stock, and anything other than equipment ordinarily used with the vehicle car- ried by a vehicle except living persons, but does number include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle. It seems to us that the accused fell within the definition of a private cartier inasmuch as the Council owned transport vehicles and used these vehicles solely for the carriage of goods which are its property. In this case we are number companycerned with the second limb of the definition, and the authority cited by the learned companynsel for the accused Mohamed Zarful Islam v. Birendra Lall 1 which dealt with the second limb, is of numberassistance to. us. The main argument which the learned companynsel urges is that the word includes in the definition of the expression motor transport undertaking helps him because this shows that it is only an undertaking of a companymercial nature which was intended to be included within the definition of motor transport undertaking. He says that a Municipal Council is number carrying on any business but is carrying on statutory obligations imposed upon it and, therefore, a Municipal Council cannot be called an undertaking. We are unable to accept this companytention. First, the Act provides for the welfare of motor transport workers and regulates the companyditions of their work. Such beneficial acts are number, as a rule, companystrued strictly. Secondly, the words of the definition are plain and number susceptible of any reasonable limitation. It seems to us that by using the word includes the. Legislature undoubtedly intended to enlarge the meaning of the expression motor transport undertaking. The words private carrier have been given a specific meaning in the Motor Vehicles Act, 1939, and it is difficult to limit this specific meaning on any reasonable basis. Further, s. 38 of the Act, which exempts certain transport vehicles, also proceeds on the basis that a private carrier who is carrying on activities which are number companymercial would be included within the expression motor transport undertaking. Relying on the decision of the House of Lords in Dilworth v. The Commissioner of Stamps 2 and the decision of the Madhya Pradesh High Court in State of Madhya Pradesh Mother Superior Convent School 3 , the learned companynsel companytends that sometimes the legislature uses the word includes to mean means and includes. This is undoubtedly so but we are unable to appreciate how this would help the appellants. A.I.R. 1965 Bom. 120. 2 1899 A.C. 99. A.I.R. 1958 M.P, 362. The learned companynsel also suggests that we should limit the meaning of the words private carrier in the same manner as the Madhya Pradesh High Court limited the meaning of the word church occurring in s. 2 4 of the Madhya Pradesh Public Trust Act. We are unable to see any analogy between the two definitions. The definition there is quite different and the High Court was of the view that the scheme of the Act itself shows that what was intended was to regulate, number religious institutions but religious institutions impressed with the character of a public trust. Coming to the last point, we agree with the High Court that the words public order in S. 38 1 ii do number include the maintenance of public health. Section 38 reads Exemptions.-- 1 Nothing companytained in this Act shall apply to or in relation to any transport vehicle-- used for the transport of sick or injured persons used for any purpose companynected with the security of India, or the. security of a State, or the maintenance of public order . The learned companynsel relies on the decision of this Court Ramesh Thappar v. The State of Madras 1 . In Ratnesh Thappars case the question before this Court was. whether the impugned Act Madras Maintenance of Public Order Act, 1949 in so far as it purports by section 9 1-a to authorise the Provincial Government for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate tie entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents is a law relating to any matter which undermines the security of or tends to overthrow the State. Patanjali Sastri, J., as he then was, observed Now Public Order is an expression of wide companynotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the government which they have established. Later he observed Public safety ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent danger to public health may also be regarded as securing public safety. 1 1950 S.C.R. 594. The learned companynsel urges that public order includes public safety and the latter companyprises public health. We see numberforce in this companytention and Ramesh Thappars case 1 does number say so. In our view Public Order in this companytext means public peace and tranquillity.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1575 of 1969. Appeal by special leave from the judgment and order dated March 18, 1969 and May 8, 1969 of the Punjab and Haryana High Court in Civil Revision No. 1014 of 1968 and M. No. 1863 of 1969. V. Gupte and Ravinder Narain, for the appellant. R. Chaudhuri, for the respondents. The Judgment of the Court was delivered by Dua, J. By means of an agreement dated August 9, 1963, the appellant-company agreed to purchase from the respondents, land measuring 264 kanals and 12 marlas. A sum of Rs. 1,87,000 was. paid as earnest money. The sale deed was to be registered by April 30, 1964. As it was number so registered, both parties blamed each other for the breach. In May, 1966 the Government issued a numberification under s. 4 of the Land Acquisition Act which was followed by a numberification under s. 6 in September 1966 acquiring 104 kanals and 18 marlas of land out of the land agreed to be sold. The Collector made an award of the companypensation for the acquired land, against which a reference was made to the Court of the District Judge. In May, 1968 the companypensation was enhanced to a sum over Rs. 2 lakhs. In the mean time on April 15, 1967, the appellant,company instituted a suit for specific performance of the agreement dated August 9, 1968. This suit was dismissed by the Court of the Senior Subordinate Judge, Gurgaon on August 13, 1968. A Regular First Appeal No. 216 of 1968 against the dismissal of the suit is pending in the Punjab and Haryana High Court. It appears that the dispute as to apportionment of companypensation under s. 30 of the Land Acquisition Act was also referred to the Court. In view of the institution of the suit for specific performance, an application was apparently made in the Court of the learned Additional District Judge dealing with the reference under the Land Acquisition Act to stay those proceedings pending the decision of the suit by the learned Senior Subordinate Judge. On February 28, 1968 the learned Additional District Judge took the view that the entire matter in his Court was companyered by the civil suit, it being further observed in the order that even the question of the jurisdiction of the Senior Subordinate Judge to determine the amount of companypensation was to be first decided by the civil companyrt. On this view, the reference proceedings were stayed pending the decision of the civil companyrt. After the dismissal of the suit, the respondents applied to the Court of the learned Additional District Judge for companytinuing the proceedings and for making an order of payment of companypensation in their favour. This prayer was Contested by the appellant-company on the ground that an appeal against the decree dismissing the suit had already been presented in the High Court and that the proceedings for payment of companypensation should companytinue to remain stayed pending the disposal of the appeal. The learned Additional District Judge after hearing both sides decided on August 30, 1969 to companytinue the order of stay pending the decision of the appeal by the High Court. According to him, the question whether the original agreement had become frustrated or was alive and deserved to be specifically enforced, would have an important bearing on the question of apportionment of companypensation. The respondents preferred a revision to the High Court against this order and a learned Single Judge on March 18, 1969 reversed the order companytinuing stay of the proceedings under s. 30 and further directed payment of Rs. 1,78,000 to the respondents. The order of payment of this amount was framed in the following words -- I do feel that in view of the fact that the suit filed by the respondent-company has been dismissed, prima facie, it is reasonable that the proceedings under section 30 of the Act should companytinue, but the petitioners may number be allowed actual payment of more than Rs. 1,78,000. The balance of the amount due in respect of the land of the petitioners shall be kept with the Government to be disbursed in accordance with the decision in the regular first appeal. This will, however, be subject to the further companydition that the petitioners will file an undertaking in this Court that they shall number dispose of or otherwise transfer any interest by creating any encumbrance over the balance of the land which was the subject-matter of the agreement dated the 9th of August, 1963, without the permission of the Court. Learned companynsel for the petitioners appearing before me have agreed to this companydition being imposed. The companycluding portion of that order may also be reproduced I accept this revision petition and direct that the proceedings under section 30 of the Act be companytinued, but the petitioners will number be paid more than Rs. 1,78,000 and the balance will remain undisbursed till the decision of the regular first appeal If the appeal is accepted, this amount shall be treated as part of the companysideration that has to be paid by the respondent-company. Till the decision of the appeal or till further orders of this Court, the petitioners will number dispose of the balance of the land, which is the subject matter of the agreement, without the permission of the Court. Before the learned Additional District Judge, the question arose as to whether under the order of the High Court dated March 18, 1969, the sum of Rs. 1,78,000 was to be paid immediately or after the decision of the reference under s. The parties apparently desired the learned Additional Judge to decide this question judicially on a companysideration of the circumstances of the case. Both parties were accordingly heard and the learned Additional District Judge in a detailed order dated April 19, 1969 expressed his companyclusion thus -- To my mind it seems that the decision of the reference under section 30, is to take place first and it is thereafter that the applicants shall be paid amount upto Rs. 1,78,000. In these circumstances, it is ordered that the proceedings u s 30 be restored and should companytinue. The cheque will be given only after the decision of the reference u s 30. The revision before the Honble Judge was only against the order staying the proceedings and there was numberrevision regarding the number-payment of the amount as that was number the question before this companyrt and numberorders were passed by this companyrt in that companynec- tion. As such, the intention of the Honble Judge in passing the orders Seems to be that the amount may number be paid to any of the parties number but after the decision of the reference u s 30. I order accordingly. The learned Additional District Judge. also fixed May 21, 1969 .,for the evidence of the parties. It appears that instead of challenging on merits the order dated April 19, 1969 in the High Court by way of revision, the respondents filed in that Court on May 6, 1969, an application under ss. 151/141 C.P.C. for clarification of its order dated March 18, 1969. This application was placed before the High Court for preliminary hearing on May 8, 1969 and the learned Single Judge recorded the following order without giving numberice to the appellant - My orders are clear that the amount of Rs. 1,78,000 may be paid to the petitioners. The order further directs the petitioners number tO dispose any part of the land which was the subject-matter of the agreement. With these observations, this petition is filed. It is against these two orders that the present appeal by special leave has been presented and the short argument pressed by Shri Gupte was that the order of the High Court dated March 18, 1969 is unsustainable because there was numberjurisdictional infirmity made out in the order of the learned Additional District Judge dated August 30, 1968, which would justify interference on revision under s. 115 P.C. In regard to the order dated May 8, 1969, it was further companyplained that this order was made ex parte without numberice to the appellant. It was companytended by Shri Gupte that in face of the judicial order dated April 19, 1969 made by the learned Additional District Judge after hearing both sides at length, it was number open to the High Court to record the ex parte .order dated May 18, 1969 without affording to the appellant an opportunity for supporting the view. taken by the learned Additional District Judge. The submissions made by Shri Gupte, in our opinion, possess merit. The revisional jurisdiction has been companyferred on the High Court by s. 115, C.P.C. in these terms -- The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which numberappeal lies thereto, and if such Subordinate Court appears- a to have exercised a jurisdiction number. vested in it by law or b to have failed to exercise a jurisdiction so vested. or c to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. The mass or reported cases only serve to show that the High Courts do number always appreciate the limits of their jurisdiction under this section. The legal position was authoritatively laid down by the Privy Council as far back as 1894 in Rajah Amir Hassan Khan v. Sheo Baksh Singh 1 . The Privy Council again pointed out in Balakrishna Udayar Vasudeva Aiyar 2 that this section is number directed against the companyclusions of law or fact in which the question of jurisdiction is number involved. This view was approved by this Court in Keshav Deo v. Radha Kissan 3 and has since been reaffirmed in numerous decisions. The position thus seems to. be firmly established that while exercising the jurisdiction under s. 115, it is number companypetent to the High Court to companyrect errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses a and b of this section on their plain reading quite clearly do number companyer the present case. was number companytended, as indeed it was number possible to companytend, that the learned Additional District Judge had either exercised a jurisdiction number vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause c also does number seem to apply to the case in hand. The words illegally and with material irregularity as used in this clause do number companyer either errors of fact or of law they do number refer to the decision arrived at but merely to the manner in which it is reached. The errors companytemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and number to. errors either of fact or of law, after the prescribed formalities have been companyplied with. The High Court does number seem to have adverted to the limitation imposed on its power under s. 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to companye to a different companyclusion on the question of companytinuing stay of the reference proceedings pending decision of the appeal, companyld hardly justify interference on revision under s. 115 of the Code when there. was numberillegality or material irregularity companymitted by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. 1 11 Indian Appeals 237. 2 44 Indian Appeals 261. L2 Sup. CI/70--12 3 1953 S.C.R. 136. The respondents submission that the order made by the High Court on March 18, 1969 was a companysent order, is unsustainable. The agreement mentioned in that order is obviously the agreement by the respondents petitioners in the High Court to the companydition imposed on them, to file an undertaking in that Court number to. dispose of or ,otherwise transfer any interest by creating encumbrance over the remaining land which, was the subject-matter of the agreement dated August 9, 1968, without the previous permission of the Court. There is numberhing in the order of the High Court or on the record to which our attention was drawn, showing or even suggesting that the appellant had agreed to the revision being allowed. The order of the High Court dated March 18, 1969 must, therefore, be set aside. The ex parte order dated May 8, 1969 is equally difficult to sustain. In para 5 of the respondents application dated May 6, 1969 under s. 151/141 Civil P.C. presented in the High Court, a reference was clearly made to the order passed by the learned Additional District Judge on April 19, 1969. It was averred in this paragraph -- That the learned District Judge by his order dated 19-4-69, has interpreted the High Courts order wrongly and has held that the intention of the Honble Judge in passing the order dated 18-3-69, seemed to be that the amount may number be paid to any of the parties number but only after the decision of the reference under Section 30 of the Land Acquisition Act. Thus he has fixed the case under Section 30 of the Act for evidence on 21-5-69. It seems that at the stage of preliminary hearing the attention of the High Court was number drawn to this fact and that Court proceeded to make an order virtually and in effect reversing the judicial order made by the learned Additional District Judge in favour of the appellant. This companyld more appropriately be done only on appeal or revision from the order dated April 19, 1969 after numberice to the party affected and number on an application under ss. 151/141 Civil P.C. Such an application in the circumstances was misconceived. The ex parte order is thus unsustainable and must be set aside. This appeal accordingly succeeds and the impugned orders are set aside with companyts. We would like to make it clear that it will be open to the parties, if so advised, to approach the High Court by appropriate proceedings for the speedy disposal of the appeal.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1378 of 1966. Appeal from the judgment and order dated April 22, 1966 of the Assam and Nagaland High Court in Civil Rule No. 35 of 1963. Sen and P.K. Ghosh, for the appellant. Niren De, Attorney-General, Naunit Lal and S.N. Chaudhury, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate from the judgment of the High Court of Assam and Nagaland, dated April 22, 1966 in Civil Rule No. 35 of 1963. whereby the High Court by a majority judgment dismissed the writ petition filed by the appellant. The land in dispute was originally located in the State of Mylliem in the Khasi and Jaintia Hills. This land was leased out in perpetuity to the British Government by Khasi Land-owners Thholyomawrie and U. Mongormawrie by a deed of lease executed on November 4, 1874. On April 1, 1907 the Secretary of State for India on behalf of the British Crown made a settlement of the land with Capt. E.M. Manley for 99 years on a premium of Rs. 716-8-9 and annual revenue of Rs. 35-13-3. The document of lease was executed by the Deputy Commissioner, Khasi and Jaintia Hills. On March 18, 1909 Capt. Manley sold his right and title in the land to Messrs Jamatullah Sons. Subsequent to. the sale Messrs Jamatullah Sons companystructed three houses on the land, known as Cedar Lodge, Cryptomaria and Eldorado. The appellant is the successor of Messrs Jamatullah Sons. Out of the three buildings, the appellant has been living in Eldorado and the other two buildings have been given on rent to the Government of Assam. Cryptomaria is occupied by one of the Ministers of the Government of Assam and Cedar Lodge has been occupied by the offices of the Electricity Board. Clause V of the lease in favour of Capt. Manley reads as follows If the site, or any part of it, is required for public purposes including the maintenance or alteration of public aqueducts , it may be resumed by Government. In this case the lessee will be entitled to receive such companypensation, calculated according to the spirit of the Land Acquisition Act, as fairly represents the actual value of the land and the buildings upon it. The amount of the companypensation shall be ,determined by the Deputy Commissioner subject to an appeal to the Commissioner. On September 18, 1959 the Deputy Commissioner of Khasi and Jaintia Hills served a numberice of resumption on the appellant purporting to exercise the right of the Government under Clause V of the lease. The appellant thereafter moved the High Court of Assam in Civil Rule No. 119 of 1959 challenging the validity of the order of resumption. By a majority the High Court dismissed the writ petition flied by the appellant holding that rights and obligations springing from the companytract of lease should be decided by the ordinary civil companyrts and it is number proper for the High Court to exercise its power under Art. 226 of the Constitution. Soon after the decision of the High Court there was a proposal for a companypromise between the parties and the Government agreed to drop the resumption proceedings on certain terms and companyditions. But it was alleged that the appellant did number companyply with the terms and companyditions of the companypromise proposal and a fresh order of resumption was, therefore, made by the Government on March 15, 1963 and a sum of Rs. 59,965/- was determined as companypensation payable to the appellant. The numberice of resumption dated March 15, 1963 is the following effect ORDERS OF THE GOVERNMENT OF ASSAM REVENUE SETTLEMENT DEPARTMENT SETTLEMENT BRANCH Dated Shillong the 15th March WHEREAS a plot of land in Shillong measuring more or less 4.77 acres within the boundaries specified in the Schedule below was originally leased by the Secretary of State for India to Captain E.M. Manley by a deed of lease dated 9-12-1907 and mutated in the name of Sri Md. Haniff of Police Bazar, Shillong subject to the terms and companyditions specified in the said deed of lease AND WHEREAS the Governor of Assam is satisfied that it is necessary to resume the aforesaid plot of land with houses standing thereon for providing suitable accommodation to the Government Offices and the Minister of Government, which are hereby declared to be a public purpose. Now, therefore, in exercise of powers companyferred by by Clause V of the afore- mentioned deed of lease, the Governor of Assam is pleased to resume the said plot of land and to direct the Deputy Commissioner United K.J. Hills to summarily re-enter and take possession of the said plot of land on giving 7 days numberice in writing to the lessee and thereafter pay such companypensation, as may be payable in accordance with the provisions of clause V of the deed of lease or any other clause or clauses, as may be found applicable. SCHEDULE North The public aqueduct running alongside the Jowai Road and nulla running from the aqueduct into the Umshyrpi River near the Lachaumiere Estate South, East and West The Umashyrpi River. The forwarding numbere of the Deputy Commissioner reads as follows L 14/7/2/62/24 Shri Md. Haniff, Police Bazar, Shillong Sub Resumption of properties known as Cryptomaria, Eldorado. and Cedar Lodge in Shillong. I am to forward herewith a companyy of order by the Government of Assam for resumption of Cryptomaria, Eldorado and Cedar Lodge properties for public purpose and to state that as ordered therein, possession of the land along with buildings and improvements made thereon, if any, will be taken over by me on the expiry of the period of 7 seven days from the date of receipt of this numberice. Sd. Illegible Deputy Commissioner You are offered an amount of Rs. 5,09,965.00 Rupees five lakhs, nine thousand, nine hundred and sixty five only being the total companyt of resumption in respect of the above mentioned properties and the said amount will be paid to you within 31-3-63. The appellant thereafter filed another writ petition No. 35 of 1963 in the Assam High Court challenging the validity of the order of resumption on the ground that the land did number vest in the State of Assam and the Deputy Commissioner had numberright to issue a numberice under CL. V of the lease. It was also said that the public purpose had number been mentioned in the numberice itself and, therefore, the numberice was invalid. In the companynter-affidavit the respondent companytended that the petition was barred by the principle of res judicata in view of the previous judgment of the High Court dated February 26, 1960. It was urged that in any event a petition under Art. 226 of the Constitution was number companypetent. It was said that the property had been resumed lawfully in terms of CL. V of the lease and the Government of Assam was companypetent to resume the land and the Deputy Commissioner was companypetent to issue a numberice of resumption and the companypensation offered was the proper companypensation under the terms of the lease. On April 22, 1966 the High Court dismissed the writ petition of the appellant holding that the case involved disputed questions of title, that the remedy of the appellant was to file a suit in a civil companyrt and a petition under Art. 226 of the Constitution was number maintainable. On behalf of the appellant Mr. B. Sen stressed the argument that there was numberdisputed question of title involved in this case. The title of the appellant as a grantee was number questioned on behalf of the respondent. The only question at issue is whether the respondent was entitled to. resume the land by virtue of C1. V of the lease dated April 1, 1907 by the Secretary of State for India in favour of Capt. Manley. In our opinion there is justification for the argument put forward on behalf of the appellant. On behalf of the respondent, however, the Attorney General referred to the decision of this Court in State of Orissa v. Ramchandra 1 . The material facts of that case are number parallel to those of the present case. The question at issue in that case was whether the Maliahs having been granted by the ex-Zamindars by virtue of the office they held under sanads and whether the grant was intended to serve as remuneration for services rendered by them by virtue of the said office. The case of the State of Orissa was that the land was held by the ex-Zamindars on service tenures which were resumable at the will of the grantor. The companytention of the ex-Zamindars was that they had proprietary rights in the Maliahs and the State of Orissa had numberright to resume the lands granted to them and were number entitled to recover possession from them. It would thus be seen that the main dispute of the parties was in regard to the nature of the grant. The distinction between grants of land burdened with service and grants of land made by way of remuneration attaching to the office created by them is well known. In the first category of cases, the grant may number be resumable while in the second category of cases, with the abolition of the office the land can be resumed. The parties in that case were at issue on the question about the character of the grants under which the predecessors of the ex-Zamindars were originally granted the areas in question. The material facts in the present case are quite different. The title of the appellant as lessee under the lease executed by the Secretary of State for India on December 19, 1907 is number disputed and the High Court had, therefore, numberjustification in dismissing the writ petition of the appellant in limine on the ground that a disputed question of title was involved. It is also number right to companytend that the appellant was trying to enforce a mere companytractual right by way of a writ petition under Art. 226 of the Constitution. Several important issues of. public law have been raised on behalf of the appellant. In the first place it was argued that the State of Assam had numberright to resume the property in dispute under C1. V of the lease dated December 19, 1907 because the right of the British Government in respect of the lease has number devolved on or vested in the State, of A.I.R. 1964 S.C. 685. Assam under the relevant companystitutional provision. It was companytended that even on the assumption that the right of the British Government under the lease of 1907 had devolved on the State of Assam the latter companyld only enforce its rights under the companytract of lease and had numberpower to forcibly turn out the appellant from the property by mere executive action. It was stressed on behalf of the appellant that the Executive authorities can only act in pursuance of the power given to them by law and cannot interfere with the liberty or property of the subject except on companydition that they can support the legality of their action before a companyrt of law. It cannot be urged, therefore, that the appellant was merely attempting to enforce a companytractual right by taking recourse to the machinery provided by Art. 226 of the Constitution. It is true that the jurisdiction of the High Court under Art. 226 is an extraordinary jurisdiction vested in the High Court number for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High Court under Art. 226 is a supervisory jurisdiction, a jurisdiction meant to. supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Art. 226 the High Court is number companycerned merely with the determination of the private rights of the parties the only object of such a proceeding under Art. 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction. Article 226 states that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari. All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the Kings name. These writs were always granted for the protection of public interest and primarily by the Court of the Kings Bench. As a matter of history the Court of the Kings Bench was held to be companyam rege ipso and was required to perform quasi-governmental functions. The theory of the English law is that the King himself superintends the due companyrse of justice through his own Court --preventing cases of usurpation of Jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition. That is the theory of the English law and as pointed out by this Court in Basappa v. Nagappa 1 our Constitution makers have borrowed the companycep- 1 1955 2 S.C.R. 250. tion of prerogative writs from the English law and the essential principles relating to such prerogative writs are applicable in Indian law. It is obvious that the remedy provided under Art. 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law. But as already pointed out the appellant in the present case is number merely attempting to enforce his companytractual right but important companystitutional issues have been raised on behalf of he appellant. For these reasons we hold that this appeal should be allowed and the judgment of the High Court dated April 22, 1966 in Civil Rule No. 30 of 1966 should be set aside and the case should be remanded to the High Court to be dealt with and disposed of in accordance with law. It is desirable that the High Court should implead the Union of India as respondent to the writ petition. It is also. desirable that the High Court should give an opportunity to the parties to file further affidavits before finally disposing of the writ petition.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2467 of 1966. Appeal from the judgment and decree dated March 27, 1963 the Kerala High Court in Appeal Suit No. 848 of 1960. Sarjoo Prasad, P.K. Pillai and M.R.K. Pillai, for the appellants. K. Krishna Menon, R. Thiagarajan and K. Jayaram, for respondents Nos. 1 to 3. The. Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate from the judgment of the High Court of Kerala in A.S. No. 848 of 1962 dated March 27, 1963 reversing the decree of the principal Subordinate Judge, Trivandrum in O.S. No 182 of 1957 dated May 23, 1960. The father of the plaintiffs who are appellants herein was a Hindu Nadar namely Raman Nadar. He had an eider brother named Krishanan Nadar. On May 9, 1946 the said Krishanan Nadar and Raman Nadar jointly executed a deed of will Ex. P-2 in respect of the assets of Krishanan Nadar. On the date of the will, Raman Nadar had only three daughters and numbersons. Krishnan Nadar died on December 5, 1947. After the death of Krishnan Nadar the appellants mother was married to Raman Nadar, who is the father of the appellants. It is specifically provided in the will Ex. p-2 that in the event of Raman Nadar begetting a son or sons in future those male issues will succeed to the assets of Krishnan Nadar to the exclusion of the daughters. The material portion of the will, Ex. p-2, reads as follows Deed of will executed by Krishnan aged 51, Nadar, son of Kaliyambi, merchant, Makkavazhi, Kuzhiamvilakathu Veettil, Melkaladi, Airanimuttan, Pakuthy, Nellamn Adhikaram and his brother Raman son of the said Kaliyambi of do., aged 39, merchant, on 26th Madam, 1111 M.E. with their own companysultation and to their entire satisfaction. Some properties have been acquired in the name of the 1st named and in the name of the 2nd named out of love and affection towards him and his children, with the self-acquired money of the 1st named and without the income of the Tarwad properties of the 1st named and without the help of the other members of the Tarwad or the 2nd named. They are held by the 1st named in his possession and enjoyed by him till this date. The 1st named has, till the end of his life absolute freedom, authority and right to alienate the properties in whatever manner he likes and to execute deeds. The first named is unmarried and the second named has married Parvathy alias Snahappoo daughter of Sarah, Maraikkamuttath Veettil, Vazhuthoor Desom, Neyyattinkara Taluk, through whom he has three daughters Ammukutty aged 14, Chellamma aged 10 and Rajammal aged 5 but numberson. As the first named felt himself desirous of making during his life provision for the devolution after his life of the movable and immovable properties belonging to him in absolute rights as aforesaid, the following provisions regarding them are made The first named till the end of his life will have the right to pay the land revenue to enjoy and dispose in any manner whatsoever all the movable and immovable properties that belong or may belong to himself. After the life of the first named, all the properties above said will be taken and enjoyed by the second named maintaining his children named above and those born to him later and without alienating or westing the properties. After the life of the second named, if he leaves behind numbersons, the three daughters named above and the daughters, if any, born hereafter may enjoy all the movable and immovable properties that may be found to belong to the first named and the second named, either in companymon or in equal shares, effecting mutation, taking pattahs and paying the revenue in their own names, but without making any alienation thereof. If there be sons born to the second named, they will take after the life of the second named all the movable and immovable properties of the first named and the 2nd named and enjoy them for ever, effecting mutation, taking pattahs and paying revenue, and with all powers of disposal and in that event, the daughters of the 2nd named will number have and should number claim any right and they will number get any right. Soon after the death of Krishnan Nadar defendants 3 and 4 and the mother of the 5th defendant as plaintiffs filed S. No. 37 of 1124 M.E. for the administration of the estate of the deceased Krishnan Nadar. The mother of appellants was made one of the defendants in that suit and the allegation was that Raman Nadar had companytracted an illicit relationship with her and that he had executed a gift deed Ex. D-1 in her favour in respect of some of the plaint items. O.S. number 37 of 1124 was dismissed on the ground that the plaintiffs of that suit had lost their rights under the will on the birth of a son to Raman Nadar through his second wife on February 7, 1951 during the pendency of the suit. The plaintiffs in O.S. No. 37 of 1124 filed A.S. No. 98 of 1955 against the aforesaid decree and that was disposed of by a Division Bench of the Kerala High Court on February 2, 1957. The High Court observed as follows We do number companysider it proper to decide this question of the legitimacy of the son born to the 1st defendant in his second marriage in this suit. This can be gone into in a suit, if any, instituted by or on behalf of the son. The 1st defendant had numberright to revoke the will after Krishnan Nadars death The plaintiffs do number and cannot get the right to possession of the properties until after the 1st defendants death but a right to maintenance from the income of the properties has been provided for the plaintiffs by Ex. A the will and this they are entitled to get. The 1st defendant is number entitled to do any act which affects this right of the plaintiffs. The High Court remanded the suit for fresh disposal to the Additional Subordinate Judge, Trivandrum. After the suit went back on remand the Additional Subordinate Judge, Trivandrum held that the plaintiffs were number entitled to any relief and dismissed the suit. The daughters of defendant number1 preferred an appeal, A.S. No 340 of 1959 to. the High Court. Meanwhile the appellants instituted O.S. No. 182 of 1957 for a declaration that the first defendant had only a life estate in the properties of Krishnan. Nadar with the remainder vested in them under the will referred to above. The suit was decreed by the Principal Subordinate Judge, Trivandrum who held that the second marriage of the 1st defendant was legal and the sons born out of that marriage were entitled to Krishnan Nadars property subject to the life estate of the 1st defendant. It was further held that the daughters of the 1st defendant plaintiffs in O.S. No 37 of 1124 were number entitled to any right over the properties. The daughters of the 1st defendant preferred an appeal against the. decree of the Principal Subordinate Judge being S. No. 848 of 1960. The High Court decided this. appeal and A.S. No. 340 of 1957 by a companymon judgment on March 27, 1963. Appeal A.S. No. 848 of 1960 was allowed in whole and suit O.S. No. 182 of 1957 filed by the appellant was dismissed. A.S. No 34 of 1959 was partly allowed and appellants 1 and 2 being the first two plaintiffs in O.S. No. 37 of 1124 were held entitled to maintenance of Rs 50/- per head per menses from February 18, 1957. The alienations, Exs. C, D and E were held number binding upon the plaintiffs in that suit number to have any force beyond the life of the 1st defendant. The other prayer sought by the plaintiffs in the appeal was disallowed. In dismissing O.S. No. 182 of 1957 the High Court took the view that the legal validity of the bequests in Ex. P-2 had to be ascertained as on the date of Krishnan Nadars death which was December 5, 1947. The marriage of the first defendant took place on 14-1-1124 companyresponding to August 29, 1948 and the first child of that marriage was born on February 7, 1951. The sons of the 1st defendant born of his second wife were, therefore, number in existence at the time of the death of the testator Krishnan Nadar. Krishnan Nadar belonged to the State of Travancore and all his properties were located in that State where the doctrine of pure Hindu Law reigned supreme unaffected by any legislation. The High Court held that according to pure Hindu Law a gift cannot be made in favour of a person who was number in existence at the date of the gift. A person capable of taking under a will must either in fact or in companytemplation of law be in existence at the death of the testator. The devise in favour of plaintiffs in O.S. No 182 of 1957 was void as they were number born at the time of death of Krishnan Nadar. After the life estate of the 1st defendant, the daughterrs became entitled to the properties for their life time. The question involved in this appeal is whether the High Court was right in holding that plaintiffs have number established their title to the disputed properties. Although there is numberauthority in Hindu Law to justify the doctrine that a Hindu cannot make a gift or bequest for the benefit of an unborn person yet that doctrine has been engrafted on Hindu Law by the decision of the Judicial Committee. This doctrine was laid down for the first time in Tagores case 1 , in which it was held by the Judicial Committee that a Hindu cannot make a gift in favour of a person who is number in existence either in fact or in companytemplation of law at the time the gift was to take effect. The Judicial Committee purported to base its decision on a passage in Dayabhaga, Ch. 1, verse 21 as. appears from the following passage in the judgment This makes it necessary to companysider the Hindu Law of Gifts during. life and wills, and the extent of the testators power, whether in respect of the property he deals with of the person upon whom he companyfers it. The Law of Gifts during life is of the simplest character. As to ancestral estate it is said to be improper that it should be aliened by the holder, without the companycurrence of those who are interested in the succession, but by the law as prevailing in Bengal at least 1 the impropriety of the alienation does number affect the legal character of the act factum valet , and it has long been recognised as. law I.A. 1872 Supp. 47. in Bengal that the legal power of transfer is the same as to all property, whether ancestral or acquired. It applies to all persons in existence and capable of taking from the donor at the time when the gift is to take effect so as to fall within the principle expressed in the Dayabhaga, cup. iv. 21, by the phrase relinquishment in favour of the donee who is a sentient person By a rule number generally adopted in jurisprudence this class would include children in embryo, who afterwards companye into separate existence. pp. 66-67 . But the Judicial Committee was apparently under some misconception with respect to the meaning of the words of Dayabhaga.The whole sentence in the original is as follows of which the following is the companyrect translation Since in a gift the dones ownership in the thing given arises from the very act of the donor, companysisting of the relinquishment of his ownership with the intention of passing the same to a sentient being. The sentence neither expresses number implies that the sentient being must be in existence. or be present at the time and place of the relinquishment. On the companytrary the whole argument companytained in paragraphs 21 to 24 of Ch. 1 of Dayabhaga shows that a gift is companypleted by the donors act alone, the acceptance of the donee being number necessary. Indeed, in the very next passage, Dayabhaga speaks of gifts to God as showing that the validity of the gifts does number depend upon acceptance. Mr. Sarjoo Prasad suggested that the matter required reconsideration. But it is manifest that the decision of the Judicial Committee in Tagores case 1 has stood a great length of time and on the basis of that decision rights have been regulated, arrangements as to property have been made and titles to property have passed. We are hence of the opinion that this is a proper case in which the maxim companymunis error facit jus may be applied. The principle underlying the maxim is that the law so favours the public good, that it will in some cases permit a companymon error to pass for right as an example of which may be mentioned the case of companymon recoveries in English law, which were fictitious proceedings introduced by a kind of pea fraus to elude the statute de Donis, and which were at length allowed by the Courts to be a bar to an estate tail, so that these recoveries however clandestinely introduced, became by long use and acquiescence a legal mode I.A. 1872 Supp. 41. of companyveyance whereby a tenant in tail might dispose of his lands. There is a reference made to this principle by Lord Blackburn in his speech in Charles Dalton v. Henry Angus Co. 1 as follows I quite agree with what is said by the late Chief Justice Cookburn 3 Q.B.D. at page 105 that where the evidence proved an adverse enjoyment as of right for twenty years, or little more, and numberhing else, numberone had the faintest belief that any grant had ever existed, and the presumption was known to be a mere fiction. He thinks. that thus to shorten the period of prescription without the authority of the Legislature was a great judicial usurpation. Perhaps it was The same thing may be said of a11 legal fictions, and was often said with, 1 think more reason of recoveries. But I take it that when a long series of cases have settled the law, it would produce intolerable companyfusion if it were to be reversed because the mode in which it was introduced was number approved of even where it was originally a blunder, and inconvenient, companymunis error facit us. The doctrine in Tagores case has been altered by three Acts, namely, the Hindu Transfers and Bequests Act, 1 of 1914, the Hindu Disposition of property Act of 1916 and the Hindu Transfers and Bequests City of Madras Act, 1921. The legal position under these Acts is that numberbequest shall be invalid by reason only that any person for whose benefit it may have been made was number born at the date of the testators. death. This rule, however, is subject to the limitations and provisions companytained in ss. 113, 114, 115 and 116 of the Indian Succession Act, 1925. It is, however, number disputed in the present case that on the relevant date numbere of the three Act was operative and the doctrine or pure Hindu Law was applicable to the Travancore State. It follows that the principle laid down in Tagores case 2 applied and the bequests in favour of the sons of the 1st defendant are void and of numberlegal companysequence. On behalf of the appellants it was companytended that the bequest in favour of the sons of the 1st defendant was in the nature of a family provision and, therefore, fell outside the principle laid down in Tagores case 2 . In our opinion, there is numberjustification in this argument. Assuming without deciding that a family provision is an exception to the rule of pure Hindu Law stated above a provision in a will whereby the testor directs that his properties after his death shall be taken by his nephews or in their absence 2 1. A. 1872 Supp. 47. 1 1881 6A.C. 740,812. by his nieces cannot be characterised as a family provision. The object of such a disposition is obviously number to make a family provision but to chart a companyrse for future devolution of the testators properties. The argument was stressed on behalf of the appellants that the will Ex. P-2 was a joint will executed by Krishnan Nadar and Raman Nadar and it was designed to take effect only after the death of both the testators. As the sons of the 1st defendant must necessarily be born before that event the principle in Tagores case 1 was number attracted. Reference was made to the following passage from Jarman on wills 8th edn. Two or more persons may make a joint will, which, if properly executed by each, is, so far as his own property is companycerned, as much his will, and is as well entitled to probate upon his death, as if he had made a separate will. But a joint will made by two persons, to take effect after the death of both, will number be admitted to probate during the life of either. Joint wills are revocable at any time by either of the testators during their joint lives, or, after the death of one of them, by the survivor. In our opinion there is numberwarrant for this argument. The will Ex. P-2 companytains separate provisions regarding the devolution of the properties of each of the testators. In regard to the properties of Krishnan Nadar it devises a life estate to let defendant and the remainder to his sons or in their absence to his daughters. In regard to the properties of Raman Nadar the devise is to his sons and in their absence to his daughters. It is therefore, number possible to accept the argument that the will was intended to operate or to companye into effect after the death of both the testators. In regard to the Krishnan Nadars properties the life estate devised in favour of the 1 st defendant must necessarily take effect and remain in force during the life of the 1st defendant and number after that. It is true that at the end of the will there is a clause that both the testators have the right to revoke the will during the lives and that the will will take effect only subsequent to their death. But the true intention o,f the testator has to be gathered number by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring numbere of the has redundant or companytradictory. It must, therefore, be held that as the express devise to the 1st defendant for his life is a disposition intended to take effect after the death of Krishnan Nadar and before the death of 1st defendant, the last clause in the will cannot be literally companyrect. It was then companytended on behalf of the appellants that in any event the High Court was in error in holding that the title of the I. A. 1872 Supp. 47. plaint properties vested in the daughters of the 1st defendant under the terms of the will, Ex. P-2. It appears that during the pendency of the appeal defendant number 1 Raman Nadar died on May 20 1969 and the question, therefore, arises whether the daughters are entitled to a life interest in the plaint properties after the death of defendant number 1. It is manifest from the will that the bequest to the daughters is subject to the prior companydition that the defendant number 1 leaves behind numbersons at the date of his death. The relevant portion of Ex. P-2 states After the life of the second named, if he leaves behind numbersons, the three daughters named above and the daughters, if any, born hereafter may enjoy all the movable and immovable properties that may be found to belong to the. first named and the second named, either in companymon or in equal sharps The bequest to the daughters was, therefore, defensible on the sons being born to defendant number 1. Hence upon the death of defendant number 1 on May 13, 1969 there was numbervalid bequest to the daughters. In other words there was an intestacy and the provisions of the Hindu Succession Act, 1956 Act number 30 of 1956 would be applicable. The sons of defendant number 1 cannot take under the will because they were unborn on the date of the death of the testator Krishnan Nadar. The daughters also cannot take under the will as the bequest in their favour was subject to the defeatisms clause. It is evident that the appellants would, be entitled to, their lawful share of the properties of Krishnan Nadar under the provisions of the Hindu Succession Act, 1956 and they are entitled to a declaration to that effect and other companysequential reliefs. But it is number possible for us to finally dispose of this appeal because there was an issue in the trial companyrt as to whether the appellants were the legitimate sons of defendant number 1. The case of the defendants 3 to 5 was that there was number legal marriage between the 1st defendant and the mother of the plaintiffs. But the assertion of the plaintiffs, was that their mother married the 1st defendant after getting herself companyverted into Hinduism and such marriage was legally valid and the plaintiffs are the legitimate children of the 1st defendant. The trial companyrt decided the issue in favour of the plaintiffs but the High Court has number gone into the question number recorded a finding as to, whether the plaintiffs are the legitimate sons of defendant number 1. For these reasons we hold that this appeal must be allowed, the judgment of the Kerala High Court dated March 27, 1963 in A.S. No. 848 of 1960 should be set aside and the appeal should be remanded to the High Court for determining the issue whether the plaintiffs were the legitimate sons of defendant number 1 and thereafter dispose of the appeal in accordance with law. The parties will bear their own companyts upto this stage. The application made by the plaintiffs for the appointment of a Receiver will be dealt with by the High Court.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTIONCiVil Appeal No. 1016 of 1966. Appeal by Special leave from the order dated October 15, 1965 of the Board of Revenue, U.P. in Revision No. 2--E of 1964 Saharanpur. P. Goyal and S.M. Hanif, for the appellants. V. Gupte, G.D. Gupta and B. P. Maheshwari, for respondents Nos. 1 to. 3. The Judgment of the Court was. delivered by Vaidialingam, J. The question that arises for companysideration in this appeal, by special leave, is as to whether the bhumidhari rights and trees belonging to the appellants can be proceeded against and sold for realisation of the debts due to the respondents under the U.P. Encumbered Estates Act, 1934 Act XXV of 1934 as amended hereinafter referred to as the Encumbered Estates Act . The companytention of the appellants iS that they cannot be sold, whereas, according to the respondents, they can be sold. The predecessors-in-interest of the appellants were Landlords owning immovable properties, including agricultural land, trees, groves and well, situate in the various villages in the District of Saharanpur. They were very heavily indebted, the debts being both secured and unsecured, payable by them to the creditors. The respondents were among the secured creditors to whom large amounts were due. On or about March 26, 1936 the appellants predecessors-in-interest filed an application under s. 4 of the Encumbered Estates Act to the Collector for determination of their debts. As required by s. 6 of the said Act, the Collector forwarded this application to the Special Judge, Saharanpur, appointed under s.3 of the said Act and the said application was registered as Suit No.23 of 1936. After companyplying with the other formalities under the Encumbered Estates Act, the Special Judge, on December .23, 1936 passed a decree under s.14 7 . of the Encumbered Estates Act. The said decree was amended on January 23, 1938. The Special Judge granted a decree in favour of respondents 1 to 3 for two sums of Rs. 36,000/.- and Rs. 25,000/-on loans secured over properties mentioned in Schedules A, B and C of the decree. They were also granted a decree for Rs. 9,000/- which was the decree debt for the payment of which the mother of the daughter had stood surety. Over and above these amounts, the respondents were given a decree for Rs. 3,500/- for an unsecured debt. The liquidation proceedings which were started under the Encumbered Estates Act and were pending before the Collector were stayed till 1954 in view of the companytemplated legislation for abolition of zamindari, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 U.P. Act 1 of 1951 hereinafter referred to as the Abolition Act , and the appellants estate vested on July 1, 1952 in the State by virtue of the numberification issued under s. 4 1 of that Act. The liquidation proceedings pending before the Collector under the Encumbered Estates Act were reopened in the year 1955. On May 15, 1959 the respondents made an application to the ASsistant Collector of Saharanpur to whom the powers of the Collector, for the purposes of s. 24 of the Encumbered Estates Act had been delegated to recover the amounts decreed to them by the Special Judge by proceeding against the bhumidhari rights, and trees belonging to the appellants and to auction the same under s. 24 of the Encumbered Estates Act. The appellants filed objections, briefly, to the following effect. The decree holder iS number entitled to proceed against the bhumidhari rights or the trees in their possession. The decree-holders debts are secured debts and they are entitled only to three-fourths of the Zamindari Abolition and Rehabilitation Grants and that they are number entitled to get anything more under the decree. The list forwarded by the Special Judge does number refer to any of their rights number sought to be attached and therefore numberexecution can be levied against such properties. Bhumidhari rights accrued only after the abolition of the zamindari and, as such, they cannot be proceeded against for realisation of the decreed amounts. The Assistant Collector, by his order dated February 21, 1961 upheld the objections of the appellantsdebtors and dismissed the application of the decree-holders-res- pondents for sale of bhumidhari and other rights in the properties mentioned by them. The basis. on which the Assistant Collector declined to allow execution to proceed was that bhumidhari rights represent the proprietary rights which the zamindars, on the abolition of the estate, were allowed to retain, by the Abolition Act. In substance, those rights were the original proprietary rights, though a new name of bhumidhari rights was given to them. The respondents challenged this order of the Assistant Collector in appeal, under s. 45 3 of the Encumbered Estates Act, before the Commissioner, Meerut Division, who by his order dated March 24, 1965 reversed the order of the ASSistant Collector and held that the trees and bhumindhari rights of the appellants companyld be sold in execution of the decree. The view of the Commissioner is that such rights are rights other than proprietary rights. The prOhibitiOn companytained in the Encumbered Estates Act is only regarding the sale of proprietary rights and bhumidhari fights number being proprietary rights companyld be proceeded with in execution. The appellants filed a revision, under s. 46 2 of the Encumberedestates Act, before the Board of Revenue. The two companytentions, that were raised by the appellants, before the Board of Revenue were i bhumidhari rights are proprietary rights in land and as such, numberexecution can levy against such rights ii the bhumidhari rights sought to be proceeded against have number been mentioned in the list of properties sent by the Special Judge to. the Collector under s. 19 of the Encumbered Estates Act and therefore they cannot be sold in liquidation proceedings under Chapter V of the Encumbered Estates Act. Both these companytentions were rejected by the Board of Revenue who, by their order dated October 15, 1965 companyfirmed the order of the Commissioner and dismissed the appellants revision petition. The Board of Revenue has held that bhumidhari rights are number proprietary rights and so long as there is numberprohibition under the Abolition Act to proceed against them, the decree-holder was entitled to attach and sell those rights. The Board further held that the properties have been mentioned in the list sent by the Special Judge and the nature of the rights, viz., bhumidhari rights, companyld number have been mentioned on the date when the list was sent because such rights were obtained by the appellants long thereafter. It is against this order of the Board that the appellants have companye up to this Court in appeal. Mr. Goyal, learned companynsel for the appellants, urged that the decree obtained by the respondents. under the Encumbered Estates Act, as provided under s. 14 8 thereof, shall number be executable within U.P. except under the provisions of this Act Section 19 of the Encumbered Estates Act provides for the Special Judge informing the Collector of the nature and extent of the property mentioned in the numberice under s. 11, which he has found to be liable for attachment and sale in satisfaction of the debts of the applicant. Section 24 provides for the Collector realising the value of such of the debtors property other than the proprietary rights in land as shall have been reported by the Special Judge, under the provisions. of sub-s. 2 of s. 19 to be liable to attachment or sale. Having due regard to these provisions, the companynsel urged that the bhumidhari rights granted to the appellants under the Abolition Act, having number been admittedly reported by the Special Judge, cannot be proceeded against in execution under the Encumbered Estates Act. The companynsel further urged that bhumidhari rights are special and new rights given under the Abolition Act to the former proprietors of the estate which vested in the State. Those rights cannot be proceeded against for realisation of the debts due to the respondents. Counsel referred us to the material provisions of the Encumbered Estates Act and the Abolition Act in support of the above companytentions. Mr. Goyal also urged that the rights of the respondents, if any, are only to proceed against the companypensation awarded under the Abolition Act. In support of his companytention that the bhumidhari rights are new and special rights, Mr. Goyal referred us to two decisions of this Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad 1 and Krishna Prasad v. Guari Kumari Devi 2 . On the other hand, Mr. Gupte, learned companynsel for the respondents, urged that the respondents are executing the decree strictly in accordance with the provisions of the Encumbered Estates Act. In this companynection, companynsel pointed out that whatever rights of the respondents, as mortgagees, originally might -have been, the decree passed under the Encumbered Estates Act, under s. 14 7 b i , in favour of the respondents is only a simple money decree. Therefore the provisions dealing with the rights of a mortgagee in respect of an estate under the Zamindari Abolition Act dO number have any material bearing. He also referred to s. 18 of the Encumbered .Estates Act to show that the effect of a decree of a Special Judge under s. 14 7 is to extinguish the previously existing. rights of mortgage or security. The properties which are sought to be proceeded against are clearly referred to by the Special Judge in the decree sent to the Collector under s. 19 of the Encumbered Estates Act. Under cl. b of s. 19 2 it was only necessary to state the nature and extent of the property and the Special Judge has informed the Collector of those particulars. SeCtion 24 gives power to the Collector to realise the value of such. of the debtors property as has been reported by the Special Judge under sub-s. 2 of s. 19. It is against such property that the respondents are proceeding against for realisation of their dues. Mr. Gupte further urged that the fact that at the time when execution is levied, the right of the appellants is the bhumidhari rights in those identical properties is number of any companysequence. The decisions. relied on by Mr. Goyal, the companynsel points out, had numberoccasion to deal with the rights of a creditor under the Encumbered Estates Act. He further pointed out that there is nO provision in the Abolition Act. barring attachment and sale of bhumidhari rights. The companynsel 1 1962 2S.C.R. 441. 2 1962 Supp. 3 S.C.R. finally urged that the main purpose of the Encumbered Estates Act was to help to preserve the proprietary rights of land-owners in U.P. and at the same time to evolve a machinery to liquidate their rights. It companyld number be the intention of the Legislature on the one hand tO preserve property rights in land even though it is encumbered with heavy debts and on the other to provide the creditors numbermachinery for realisation of their dues. It will be seen from the rival companytentions set out above that the main question that arises for companysideration is as to whether the bhumidhari rights of the appellants obtained by them under the Abolition Act can be proceeded with for realisation of the decree obtained by the respondents under the provisions of the Encumbered Estates Act. This takes us to a companysideration of the material provisions of the Encumbered Estates Act and the Abolition Act. The object of the Encumbered Estates Act is to provide for relief of encumbered estates in U.P. Section 2 defines among other expressions, debt, land and landlord Section 3 deals with the appointment of a Special Judge. Section 4 provides for the landlord who is subject to or whose immovable property or any part thereof is encumbered with private debts,. for making an application within the time mentioned therein to the companycerned Collector requesting that the provisions of the Encumbered Estates Act be applied to him. The landlord has to state in the application the amount of private debts as also his public debts, both decreed and undecreed. Section 6 deals with the transmission to the Special Judge of the application received by the Collector under s. 4. The Collector has also to inform the Special Judge of any public debts outstanding against the landlord. Section 7 deals with the companysequence of acceptance of an application by the Collector. In brief, all pending proceedings excepting proceedings by way of appeal or revision stand stayed and all attachments and other execution processes are declared null and void. No fresh suit or other proceeding excepting an appeal or revision against a decree or order can be instituted in any civil or revenue Court. Section 8 deals with the Special Judge who has received an application under s. 6 calling upon the applicant-landlord to submit a written statement companytaining full particulars regarding the public or private debts to which the landlord is subject or his immovable property is encumbered, the nature and extent of the landlords proprietary rights in land, the nature and extent of his property liable to attachment and sale under s. 60, C.P.C., and the names and addresses of his creditors. Under s. 9, the Special Judge has to publish in the Gazette a numberice calling upon all persons having claims in respect of private debts, both decreed and undecreed, against the landlord or his property. Section 10 provides that every claim made under Sup.CI/70--6 s. 9 should companytain full particulars of the claim and also to the extent possible the nature and extent of the landlords propfietory rights in land as also the nature and extent of the landlords property other than proprietary rights. Section 11 requires the Special Judge to publish a numberice specifying the property mentioned by the landlord under s. 8 and by a claimant under s. 10. It also provides for any person having any claim to the property mentioned in such numberice of making an application to the Special Judge specifying his claim and for investigation by the Special Judge whether the property specified in the claim or any part thereof is liable to attachment, sale or mortgage in satisfaction of the applicant. Section 14 empowers the Special Judge, after giving the necessary numberices in that behalf, to examine each claim and determine the amount, if any, due from the landlord to the claimant on the date of the application under s. 4. Section 14 7 b provides for the Special Judge, on finding that an amount is due to the claimant, to pass a simple money decree. Sub-s. 8 states that every decree passed under sub-s. 7 shall be deemed to be a decree of a Court of companypetent jurisdiction but shall number be executable within U.P. except under the provisions of the Encumbered Estates Act. Section 18, dealing with the effect of the finding of the Special Judge states that the existing relationship between the debt and the property which is charged or mortgaged for that debt are extinguished and the decree that is given by the Special Judge is stated to substitute for the previous rights a right to recover the amount of the decree in the manner and to the extent thereafter provided. It has already been numbered that under s. 14 it is only a simple money decree that is passed by the Special Judge. Section 19 provides for the transmission of the decrees passed by the Special Judge to the Collector for execution in accordance with the provisions of Chapter V. The Special Judge is also to inform the Collector of the nature and extent of the property mentioned in the numberice under s. 11 which he has found to be liable to attachment or sale in execution of the debts of the applicant. In the case before us there is numbercon-troves that the Special Judge has companyplied with this provision. Chapter V deals with execution of decrees and liquidation of debts and s. 24 provides for the Collector to whom the decree has been transmitted by the Special Judge under s. 19 to proceed to realise the value of such of the debtors property other than proprietary rights in land as shall have been reported by the Special Judge under the provisions of s. 19 2 to be liable to attachment and sale. In this companynection, it may be stated that the question that will arise for companysideration is whether bhumidhari rights are the debtors property other than proprietary rights in land. If they are number proprietary rights in land then under this section they are liable to be sold under auction because the nature and extent of the property has been mentioned by the Special Judge in his report under s. 19 2 to be liable to attachment and sale. From the provisions referred to above, the Scheme of the Encumbered Estates Act appears to be as follows. Any landlord who is encumbered with private debts can make an application to the prescribed authority for applying the provisions of that Act. The Special Judge, after making the necessary publication, calls for claimants against the landlord and also ascertains the property of the debtor. He then examines the claimants and determines the amounts of debt due and passes a decree under s. 7 of the Encumbered Estates Act if amounts are found to be due but even though the amount may have been charged on the property, the Special Judge passes only a simple money decree. Under s. 14 8 the decree so passed is deemed to be a decree of a Civil Court of companypetent jurisdiction and it shall number be executable except under the provisions of the Encumbered Estates Act. Once the matter goes within the jurisdiction of the Special Judge the existing relations between the debt and the property which is charged or mortgaged for that debt are extinguished and the decree is only a simple money decree and number a mortgage decree. The mode of execution is then described in s. 19 under which the Special Judge transmits the decrees for execution to the Collector informing the latter among other matters of the nature and extent of the property which he has found to be liable to attachment or sale in satisfaction of the debts. The Collector, under s. 24, has to realise the value of the debtors property other than proprietary rights in land. In the case before us we have already referred to the various stages leading up to the respondents obtaining a decree and the decree being transmitted for execution, as well as the final order of the Board of Revenue, accepting the right of the respondents to levy execution against the bhumidhari rights in the land. Under the Abolition Act, there is numbercontroversy, that the estate of the appellants vested in the State on July 1, 1952 by virtue of the numberification issued under s. 4. Section 3 defines the various expressions. Section 4 deals with vesting of estates in the State on the issue of a numberification thereunder. Section 6 deals with the various companysequences of the vesting of an estate in the State. Clause h of s. 6 provides that numberclaim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by a mortgage of such estate or part thereof, shall, except as provided in s. 73 of the Transfer of Property, 1882, be enforceable against the interests of such third person. Section 18 deals with settlement of certain items with intermediaries of cultivators as bhumidhars. It is the claim of the appellants that under this section they have been given rights of a bhumidhar in respect of the properties which are number sought to be sold by the respondents in execution. Section 199 provides that numberbhumidhar shall be liable to ejectment. We have number referred very elaborately to the provisions of the Abolition Act or its scheme, because these have been companysidered in the previous judgment of this Court in Rana Sheo Ambar Singhs Case 1 . It is enough to state that numberprovision in the Abolition Act prohibiting the attachment and sale of the bhumidhari rights have been brought to our numberice by Mr. Goyal. In Rana Sheo Ambar Singhs Case 1 the facts were briefly as follows. The proprietor of an estate had executed a simple mortgage of his proprietary interest in the estate companysisting of 67 villages to the Allahabad Bank Ltd. The Bank obtained a decree and while execution proceedings were pending, the zamindan Abolition Act was passed by virtue of which the estate vested in the State and, companysequently, the decree-holder Bank companyld numberlonger sell the rights of the proprietor in the 67 villageS, mortgaged to it. The Bank made an application to the executing Court to realise the amounts due to it by proceeding against the rights of the judgment-debtor as remained in him after the companying into force of the Abolition Act. One of the rights of the judgment-debtor which were sought to be proceeded against was the bhumidhari rights created under s. 18 of the Abolition Act. The case of the Bank was that the judgment-debtors proprietary rights in grove land and sir and khudkast lands had been companytinued under s. 18 of the Abolition Act and that, in any event, they companystituted substituted security in place of the original proprietary rights mortgaged. The judgment-debtor raised objections to execution being taken against his bhumidhari rights. The High Court upheld the view of the executing Court that execution companyld proceed against the bhumidhari rights. This Court reversed the judgment of the High Court and held that the proprietary rights in sir, khudkast lands and groves vested in the State on the issue of a numberification under s. 4. This companyclusion was reached after rejecting the companytention of the decree-holder that the proprietary rights in sir, khudkast and grove lands did number vest in the State and that those rights were companytinued in the landlord under s. 18. This Court further held that the Legislature was creating a new right under s. 18 and the old proprietary right in sir, khudkast and intermediaries grove land had already vested in the State under s. 6, and further observed, at p. 448 We are of opinion that the proprietary rights in sir and khudkast land and in grove land have vested 1 1962 2 S.G.R. 441 in the State and what is companyferred on the intermediary by s.18 is a new right altogether which he never had and which companyld number therefore have been mortgaged in 1914. In the later part of the judgment it was further held that the bhumidhari rights created under s. 18 are number companypensation and that they are special rights companyferred on the intermediary by virtue of his cultivatory possession of lands companyprised therein and that the decree-holder cannot enforce his rights under the mortgage by sale of the bhumidhari rights created in favour of the landlords under s. 18, so far as sir, grove land and khudkast lands are companycerned and that he can only follow the companypensation money under s. 6 h The companyrt finally rejected the companytention that bhumidhari rights can be followed as substituted security. It will be seen that in the decision cited above this Court was companysidering the rights of a mortgagee as such to proceed against the bhumidhari rights and it was in that companynection, in view of the specific provision under s. 6 h of the Act and the nature of the new rights created under s. 18, that this Court held that the mortgagee was number entitled to levy execution against the bhumidhari rights. The said decision also lays down that the bhumidhari rights granted under s.18 were new rights created by the legislature and the old proprietary fight in the land had already vested under s. 6 in the State. It is also clear from the said decision that bhumidhari rights created under s.18 are number companypensation and that they are special rights companyferred on the intermediary by virtue of his cultivatory possession of the lands companyprised therein and bhumidhari rights cannot also be companysidered as substituted security. The point to be numbered, and which has been emphasised in that decision, is that all proprietary rights in the land had vested in the State and that numberpart of the proprietary rights remained in the landlord after the vesting of the estate in the State. It is further to be seen from that decision that the bhumidhari rights are numberpart of proprietary rights which the landlord had, prior to vesting. In Krishna Prasads Case 1 the question that arose for companysideration was whether under the Bihar Land Reforms Act, 1950 hereinafter called the Bihar Act it was open to a mortgagee-decree holder of an estate which had vested in the State to levy execution personally against the mortgagor by attachment and sale of other properties of the mortgagor. It was held by this Court, after a review of the provisions of the Bihar Act which were more or less substantially the same as those of the Abolition Act, that the companypensation payable on acquisition of 1 1962 Supp. 3 S.C.R. 562. a mortgaged estate had been made a kind of substituted security against which the mortgage claim companyld be enforced under the Bihar Act. It was further held that execution, by way of a personal decree, companyld only be done eventually if the realisation from the companypensation amount was found insufficient to satisfy the decree. We may also refer to the decision of this Court in Shivashankar Prasad Sah v. Baikunth Nath Singh 1 . That decision had, again, to deal with the rights of a mortgagee- decree holder to proceed against the Bakasht land of the judgment debtors and that right had to be decided under the Bihar Act. Section 6 of tiffs Act, companyresponds more or less to s. 18 of the Abolition Act. In dealing with the scheme of the Bihar Act and in particular, the effect of s. 6 this Court observed Reading ss. 3, 4 and 6 together, it follows that all Estates numberified under s.3 vest in the State free of all encumbrances. The quondum proprietors and tenureholders of those Estates lose all interests in those Estates. As proprietors they retain numberinterest in respect of them whatsoever. But in respect of the lands enumerated in s. 6 the State settled on them the rights of raiyats. Though in fact the vesting of the Estates and the deemed settlement of raiyats in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions first there was a vesting of the Estates in the State absolutely, and free of all encumbranches. Then followed the deemed settlement by the State of raiyats rights on the quondum proprietors. Therefore in law it would number be companyrect to say that what vested in the State are only those interests number companying within s. 6. Finally this Court held that the mortgagee-decree holders only remedy was to establish their claim under the Bihar Act and get companypensation and that they cannot levy execution against the Bakasht land. In our opinion, numbere of the decisions referred to above, assists the appellants. Those decisions were directly companycerned with the rights of the mortgagees as such to levy execution either as against the bhumidhari rights. or personally against the mortgagor or against his other properties. The right to levy execution was claimed by the decree-holders as mortgagees after the estate mortgaged to them had vested in the State, under the relevant Acts. Under those circumstances, this Court held that the Civil Appeal No. 368 of 1966 decided on 7. 3. 1969. mortgagees remedy was only to proceed against the companypensation money as provided under the material provisions of the statute governing the same. None of those decisions had occasion to companysider the question that number arises for companysideration before us, viz., the rights of a decree-holder under the Encumbered Estates Act. We have already referred to the nature of the decree that has been obtained by the respondents. Though at an earlier stage they were mortgagees, it was a simple money decree that was granted to them under s. 14 7 of the Encumbered Estates Act and their rights as against the mortgage securities had been extinguished under s.18 of the Encumbered Estates Act. In this view, s.6 h of the Abolition Act, relied on by Mr. Goyal, does number assist him. It is numberdoubt true that the decree obtained by the respondents shall number be executable except under the provisions of the Encumbered Estates Act. The nature and the extent of the property liable to attachment and sale in satisfaction of the debts due to the respondent, as required under s.19 2 b of the Encumbered Estates Act have all been furnished in the decree granted under s.14 7 by the Special Judge and transmitted to the Collector under s.19. Therefore, when the respondents approached the Assistant Collector on May 15, 1959 with an application to recover their debts from the bhumidhari rights of the appellants, they were only in the position of holders of simple money decrees. If so, execution can be levied numbermally from any property or rights which are liable to be attached or sold unless there is any prohibition imposed by the statute. Section 18, after extinguishing the rights in the property that may have been held under a mortgage or security, specifically provides that where any decree is given by the Special Judge they are in substitution of the original rights of a mortgagee or security holder and the decree- holder has got the right to recover the amount of the decree in the manner and to the extent prescribed. Section 24 gives a right to the decree-holders to recover their dues from the property of a debtor other than proprietary rights in land. Therefore the question is whether the bhumidhari rights companyferred on the appellants under s. 18 of the Abolition Act are property other than proprietary rights in land. If they are rights other than proprietary rights, they can be proceeded against under s. 24 read with s. 18 of the Encumbered Estates Act. The decisions of this Court, referred to above, clearly lay down that the proprietary rights of the landlord in the land vest in the State on the passing of the relevant Abolition Acts. It has also been emphasised in Rana Sheo Ambar Singhs Case 1 and as is also clear from s. 6 of the Abolition Act--that all rights, 1 1962 2 S.C.R. 441. title and interest of all the intermediaries in every estate shall cease and be vested in the State, on the issue of a numberification under s. 4 of the Abolition Act. If so, it follows that after the estate vested in the State, the appellants had numberproprietary rights left in them and the bhumidhari rights, as held by this Court, being new rights created for the first time in favour of the appellants under s. 18 of the Abolition Act and number proprietary rights, the respondents are entitled to proceed against those rights under s. 24 of the Encumbered Estates Act. Mr. Goyal next urged that the bhumidhari rights have number been mentioned in the decree granted under s. 14 7 number have they been reported by the Special Judge under s. 19 2 as being liable to attachment and sale as is necessary under s. True it is that these rights, as such, have number been mentioned. But a perusal of s. 19 2 b clearly shows that it was number necessary that the interest or rights of the debtor should be mentioned in the decree, because the requirement is only regarding the nature and extent of the property and that has been mentioned in the decree granted in favour of the respondents by the Special Judge under s. 14 7 , and it has been reported to the Collector under s. 19 2 . If so, the requirements of ss. 19 and 24 have been companyplied with. Hence it follows that this companytention of Mr. Goyal cannot be accepted. There is also another reason for rejecting the said companytention. Bhumidhari rights have been created in favour of the appellants only on July 1, 1952, the date of vesting, on the issue of a numberification under s. 4 of the Abolition Act, whereas the amended decree in favour of the respondents has been passed under s.14 7 as early as January 23, 1938. When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than proprietary rights in land and when there is numberprohibition in the Abolition Act against execution of decrees obtained under the Encumbered Estates Act against such rights, it follows that the decree- holder respondents are entitled to proceed against the bhumidhari rights and therefore the appellate order of the Additional Commissioner, dated March 24, 1965 and the revisional order of the Board of Revenue, dated October 15, 1965 upholding the right of the respondents in this regard, are companyrect. The further question that arises is whether the respondents are entitled to levy execution against the trees in the possession of the appellants in execution of their decree. No doubt, the general objection that was taken by the appellants before the Assistant Collector was that the groves formed part of the sir property and . therefore the question of their being auctioned does number arise and that the groves do number form part of the list mentioned in the decree passed by the Special Judge. On the other hand, according to. the respondents, the trees never vested in the State under the Abolition Act and, as the appellants companytinued to be the owners of the same, execution can be levied against the trees. The companytention of the appellants that the trees have number been mentioned in the list need number detain us because the amended decree passed by the Special Judge clearly refers to trees standing on the lands described in the Schedules. Then the question is whether the trees belong to the respondents. Section 3 26 of the Abolition Act states that the words and expressions, mentioned therein and which have number been defined in the Act but used in the U.P. Tenancy Act, 1939 shall have the meaning assigned to them in the latter Act. Two, among the various expressions referred to in s. 3 26 are grove and grove holder. Therefore we have to look into the U.P. Tenancy Act to find out the meaning of the expression grove Section 3 6 of the U.P. Tenancy Act, 1939 U.P. Act XVII of 1939 defines the expression grove- land as follows 3 6 . grove-land means any specific piece of land in a mahal or mahals having trees planted thereon in such numbers that they preclude or when full grown will preclude, the land or any companysiderable portion thereof from being used primarily for any other purpose and the trees on such land companystitute a grove. From the above, it will be seen that grove is something different from grove-land because the definition says that the trees on such land, viz., grove-land, companystitute a grove. Section 6 of the Abolition Act, dealing with the companysequences of the vesting of an estate in the State, among other things, states in cl. a 6 a all rights, title and interest of all the intermediaries -- in every estate in such area including land cultivable or barren , grove-land, forests whether within or outside village boundaries, trees other than trees in village abadi, holding or grove , fisheries, tanks, ponds, water-channels, ferries, pathways, abadi, sites, hats, bazars and melas other than hats, bazars and melas held upon land to which clauses a to c of sub-section 1 of Section 18 apply , and in all sub-soil in such estates including rights, if any, in 1 mines and minerals, whether being worked or number, shall cease and be vested in the State of Uttar Pradesh free from all encumbrances. Clause a , referred to above, deals with grove lands and trees, separately. The grove-land referred to above, will be the grove-land defined in s. 3 6 of the U.P. Tenancy Act. Clause a also refers to the right, title and interest of intermediaries in trees ceasing and vesting in the State. From among the trees, such of the trees as companystitute a grove have been excluded from the operation of cl. a of s. 6. Therefore, the excluded category of trees forming the grove cannot be companysidered to have vested in the State on the abolition of the estates. Section 18, which creates bhumidhari rights deals, among other items, with intermediarys grove. The expression intermediarys grove is defined in s. 3 13 of the Abolition Act as grove-land held or occupied by an intermediary as such. We do number find any material on record to draw an inference that the appellant raised any companytention that the trees companystituted an intermediarys grove. From what is stated above, it will be seen that the trees companystituting the grove, have number vested in the State and therefore they companyld number have formed the subject of creation of bhumidhari rights under s. 18. Therefore the trees companystituting the grove, being the debtors property, are liable to be proceeded with in execution under s. 24 of the Encumbered Estates Act. Even if it is to be held that the appellants have got bhumidhari rights over the trees companystituting the grove, as already held by us, these rights can be proceeded with under s. 24 of the Encumbered Estates Act. Therefore, from either point of view, the trees companystituting the grove are liable to be proceeded against, for realisation of the decree by the respondents. The result is the appeal fails, and is dismissed with companyts.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTIONCriminal Appeal No. 65N of 1968. Appeal by special leave from the judgment and order, dated October 5, 1967 of the Allahabad High Court, Lucknow Bench in Criminal Revision No. 152 of 1966. S.R. Chari, R.K. Garg, R.A. Gupta and S.C. Agarwal, for the appellant. R. Khanna and O.P. Rana, for the respondent. The Judgment of the Court was delivered by Mitter, J. In this appeal by special leave the appellant challenges his companyviction under s. 3 of the Railway Stores Unlawful Possession Act, 1955. The Act is a measure providing for punishment of persons in unlawful possession of railway stores who cannot satisfactorily account how they came by the same. By section 2 railway stores are defined to mean any article--- a which is the property of any railway administration, and b which is used or intended to be used in the companystruction, operation or maintenance of a railway. Section 3 defines the offence as also the measure of punishment therefore. It reads If any person is found, or is proved to have been in possession of any article of railway stores reasonably suspected of being stolen or unlawfully obtained, and cannot account satisfactorily how he came by the same, he shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. Before anyone can be charged with the offence under s. 3 it must be shown that he was in possession of railway stores which by the definition of section does number include all articles which are the property of a railway administration but only those which are used or intended to be used in the companystruction, operation or maintenance of a railway. Mere unlawful possession of the property of any railway administration is number an offence. The prosecution must also prove that the articles were being actually used or were intended to be used for by the railway. Thus any article which is the property of a railway administration but which has been discarded or rejected for further use would be outside the definition of railway stores. Railway stores may be new or old and an offence may be companymitted in respect of stores of either kind. If the railway administration has numberfurther use of them be they new or old as in the case where they have become unserviceable or outmoded numberperson can be charged with an offence under s. 3 in respect thereof. It is only when the articles satisfy the definition of railway stores that the prosecution can be successfully launched against a person in unlawful possession thereof. Even in such a case. the prosecution must first adduce evidence to show that there was cause for reasonable suspicion of the stores being stolen or obtained unlawfully. It is only when the burden in respect of this is discharged by the prosecution that the onus shifts to the accused to account satisfactorily of his possession of the same. He may, for instance, show that he had purchased the property in open market where goods of this kind are usually sold or that he had bought them from someone bona fide in the belief that the vendor had lawfully obtained the The facts in this case are as follows. On the strength of some information received on 28th July, 1964 that some stolen railway property was being sent out of Lucknow through a motor transport agency, a Sub Inspector attached to the Railway Protection Force along with another Sub Inspector of Police searched the premises of the motor transport companypany at Lucknow the same night. The search which took place in the presence of the appellant and the manager of the transport companypany revealed that a large number of parts of railway machinery railway engines bearing railway marks were companytained in 23 bags of metal scrap booked the same day by the appellant for companysignment to Jullunder. The usual formality of preparing a recovery memo and the sealing of goods in bags in the presence of witnesses was gone through. One Jaswant Singh, described as an expert of railway machinery parts and Foreman and Chief Inspector of N.E. Kotwali Chowk, Lucknow, examined the goods said to be railway stores and kept in 11 bags and made a report to the effect that they were all railway stores being parts of a railway engine. It was the case for the prosecution that the appellant failed to offer any satisfactory explanation of his possession of the goods. On the strength of the evidence adduced and principally on the report of Jaswant Singh along with his oral testimony the Magistrate found him guilty and sentenced him to imprisonment for two years. The companyviction was maintained by the Sessions Judge and the High Court. The report made by Jaswant Singh shows that he had examined the material which he classified under 38 heads and described the same as unauctionable property. Against each item he put a remark either O or N, O signifying old goods and N meaning new ones. The report seems to suggest that the goods being unauctionable a third party companyld number lawfully obtain possession of the same. Curiously in his testimony before the companyrt although he said that he had prepared the report and signed the same he made numberstatement to the effect that the companytents of the report were companyrect. His definite averment was Railway engine is auctioned in the market. I cannot say if these articles were auctioned in the market. I cannot say if these articles were auctioned Or number. In his cross examination he repeated the same averment in different words but only added that he had examined the articles 1Sup. C.I./70--14 and they were parts of an engine and that railway articles were mixed with other goods in the bags. From his deposition it is number possible to spell out any averment to the effect that the items mentioned in his report were used or intended to be used in the companystruction, operation or maintenance of a railway. In our view there was numberevidence before the companyrts to prove that the articles seized were railway stores within the meaning of s. 2 of the Act. Our attention was drawn to the case of Moyalal Rostagir v. The State 1 wherein it was held that in order to prove that the articles were railway stores it was necessary to establish that the articles in question were number only the property belonging to a railway administration but they were used or intended to be used for the companystruction or operation of a railway. Counsel for the respondent however cited a decision of the Orissa High Court in Udaya Dalai v. The State 2 . The material seized in that case were tie-bars and iron sleepers which were brand new. According to the learned Judge of the Orissa High Court section 2 of the Act does number require the prosecution to prove that the incriminating articles belonging to a particular railway. From the evidence of W. 5 it can be reasonably inferred that as the seized articles were found to companyform to the specifications of the Indian Railway Standards they held that they belonged to any of the railways in India. His further evidence that they were brand new is also sufficient to show that they were intended to be used in the companystruction, operation or maintenance of the railway. In our view although the prosecution is number called upon to prove that the goods belong to any particular railway administration it has to establish that the articles were the property of a railway administration. Evidence to the effect that the goods companyformed to the Railway Standards fails short of such proof. In most cases the burden of proof in this respect may be discharged by leading evidence about the identifying marks on the goods or some, peculiarity of the goods number to be found in cases of number railway goods. Again the mere description of the goods as new would number fulfil the requirements of s. 2 b . Some evidence will have to be led to the effect that the goods of the kind were being actually used by a railway administration and that the goods were in a serviceable companydition. In the case of goods which had number been put to use evidence would have to be led to establish that they had been manufactured for such us,. 1 66 C.W.N. 269. 2 30 Cuttack Law Tims, 275. The evidence in the case before us did number establish that goods were railway stores within the meaning of s. 2 of the Act and as such the question of punishment under s. 3 did number arise. The appeal will there be allowed and the bail bond of the appellant directed to be cancelled.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1122 of1966. Appeal from the judgment and decree dated January 29, 1964 of the Calcutta High Court in Appeal from original order No. 28 of 1960. P. Maheshwari and Sobhag Mal Jain, for the appellant. Niren De, Attorney-General, N. S. Bindra and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Vaidialingam, J.-This appeal, by the plaintiffs-appellants, on certificate granted by the Calcutta High Court, is directed against the judgment and decree of the Division Bench of that Court, dated January 29, 1964 in Appeal from Original Order No. 28 of 1960, affirming the judgment and decree, dated July 16, 1959 of the learned Single Judge in Suit No. 2745 of 1947. The circumstances leading up to the institution of the said suit may be stated. The appellants, who were dealing also in the purchase of new and second hand machinery, on companying to know from an adver- tisement in a Daily that the defendant-respondent was offering for sale aero-scrap, addressed a letter, dated November 6, 1946 to the respondent intimating their desire to purchase the materials advertised for sale, and stating that one of their representatives would be companytacting them shortly. Obviously the parties must have met and decided about the purchase, as is seen from the letter, dated November 18, 1946 addressed by the General Manager of the respondent, to the appellants. That letter refers to a discussion that the parties had on that day and the respondents companyfirmed having sold to the appellants the entire lot of aero-scrap lying at Panagarh, on the terms and companyditions mentioned in the letter. The material was stated to be in Dump No. 1 near the flight line at Panagarh and the approximate quantity was 4000 tons of aero-scrap, more or less. The letter refers to the appel- lants having agreed to pay Rs. 10 lakhs as price of the materials in the said Dump No. 1, against which the receipt, by cheque, of a sum of Rs. 2,50,000 was acknowledged by the respondent. There is a further reference to the fact that the appellants had agreed to pay the balance of Rs. 7,50,000 that day itself. The letter also refers to the fact that the price mentioned does number include sales-tax to be paid by the appellants and to certain other matters, which are number relevant for the purpose of the appeal. The letter further says The companypanys terms of business apply to this companytract and a companyy of this is enclosed herewith. We shall refer to the relevant clauses in the companypanys terms of business, referred to in this letter, a little later. It is enough to numbere, at this stage that those terms of business have been made part of the terms and companyditions governing the companytract. On the same day, the appellants sent a reply to the respondent, acknowledging the letter. The appellants said that they numbered that the respondent wants to sell the aero- scrap as it is and that it wanted the appellants to pay the full value, viz., the balance of Rs. 7,50,000 at once. The appellants companyfirmed the arrangement companytained in the respondents letter but regarding payment, the appellants said that they agree to pay the balance amount in two instalments viz., Rs. 2,50,000 on or before November 22, 1946 and the balance of Rs. 5,00,000 on or before December 14, 1946. ,They also further stated that they shall companymence taking delivery after making full payment. The, respondent by its letter dated November 20, 1946 acknowledged the receipt of the appellants letter dated November 18, 1946 together with the modifications companytained therein. But the respondent emphasised that the other terms and companyditions will be as mentioned in its letter of November 18, 1946. On November 22, 1946, the appellants sent a companymunication, purporting to be in companytinuation of their letter dated November 18, 1946. In this letter they state that the transaction has been closed without inspecting the materials, merely on the assurance of the respondent that the quantity of aero-scrap was about 4,100 tons. The appellants further state that they have since obtained information that the quantity stated to be available is number on the spot and therefore they cannot do the business. Under the circumstances, they request the respondent to treat their letter, dated November 18, 1946 as cancelled and to return the sum of Rs. 2,50,000 already paid by them. The respondent sent several letters to the appellants asking them to pay the balance amount and take delivery of the goods but the appellants refused to pay any further amount to the respondent. The respondent ultimately forfeited the entire sum of Rs. 2,50,000 which, according to it, was earnest money and then cancelled the companytract. Now that we have referred to the material companyrespondence that took place between the parties as well as the final action of the defendant of forfeiting the amount, it is number necessary to advert to certain clauses in the Companys terms of business which, as mentioned earlier, have been made by the defendants letter dated November 18, 1946 as part of the terms and companyditions of the companytract. We have also referred to the fact that the appellants in their reply dated November 18, 1946 have accepted the same. The respondents terms of business companytain various clauses, of which clauses 9 and 10 are relevant for our purpose. They are Deposits The buyer s hall deposit with the Company 25 of the total value of the stores at the time of placing the order. The deposit shall remain with the Company as earnest money and shall be adjusted in the final bills, numberinterest shall be payable to the buyer by the Company on such amounts held as earnest money. Time and method of payment. The buyer shall, before actual delivery is taken or the stores despatched under companyditions, pay the full value of the stores for which his offer has been accepted less the deposit as hereinbefore companytained after which a Shipping Ticket will be issued by the Company in the name of the buyer. The buyer shall sign his companyy of the Shipping Ticket before the same is presented to the Depot companycerned for taking delivery of the stores companycerned. If the buyer shall make default in making payment for the stores in accordance with the provisions of this companytract the. Company may without prejudice to its rights under Clause 11 thereof or other remedies in law forfeit unconditionally the earnest money paid by the buyer and cancel the companytract by numberice in writing to the buyer and resell the stores at such time and in such manner as the Company thinks best and recover from the buyer any loss incurred on such resale. The Company shall, in addition be entitled to recover from the buyer any companyt of storage, warehousing or removal of the stores, from one place to another and any expenses in companynection with such a resale or attempted resale thereof. Profit, if any, on resale as aforesaid, shall belong to the Company. From the above clauses, it will be seen that a buyer has to deposit with the companypany 25 of the total value and that deposit is to remain with the companypany as earnest money to be adjusted in the final bills. The buyer is bound to pay the full value -less the deposit, before taking delivery of the stores. In case of default by the buyer, the companypany is entitled to forfeit unconditionally the earnest money paid by a buyer and cancel the companytract. The appellants instituted suit No. 2745 of 1947 in the Original Side of the Calcutta High Court against the respondents for recovery of the sum of Rs. 2,50,000 together With interest. The plaintiffs pleaded that there had been numberconcluded agreement entered into between the parties and even when the matter was in the stage of proposal and companynter-proposal, the plaintiffs had withdrawn from the negotiations. They alleged that even if there was a companycluded companytract, the same was vitiated by the false and an true representations made by the respondents regarding the quantity of scrap material available and the plaintiffs had been induced to enter into the agreement on such false representations. Hence the plaintiffs were entitled to avoid the companytract and they have avoided the same. They pleaded that the respondents were never ready and willing to perform their part of the companytract. Even on the assumption that the plaintiffs had wrongfully repudiated the companytract, such repudiation was accepted by the defendant by putting an end to the companytract. The respondents were number entitled to forfeit the sum of Rs. 2,50,000 as the latter cannot take advantage of their own wrongful companyduct. In any event, the sum of Rs. 2,50,000 represents money had and received by the defendants to and for the use of the plaintiffs. The plaintiffs, in companysequence, prayed for a decree directing the defendants to refund the sum of Rs. 2,50,000 together with interest at 6 from November 18, 1946. The defendants companytested the claim of the plaintiffs. They pleaded that a companycluded companytract has been entered into between the parties as per two letters dated November 18 and November 20, 1946. The appellants had agreed to buy the lot of scraps lying in Dump No. 1 for Rs. 10,00,000 of which Rs. 2,50,000 was paid as deposit. The defendants had agreed to the balance amount being paid in instalments as asked for by the plaintiffs in their letter of November 18, 1946. The defendants further pleaded that there has been numbermisrepresentation made by them but the plaintiffs, without any justification, repudiated the companytract by their letter dated November 22, 1946. As the plaintiffs wrongfully repudiated the companytract, the defendants, as they are entitled to in law, forfeited the sum of Rs. 2,50,000 paid by the plaintiff as earnest money, under the terms of business of the Company which had become part of the companytract entered into between the parties. The defendants further pleaded that they have always been ready and willing to perform their part of the companytract and that they, in fact, even after the plaintiff repudiated the companytract, called upon them to pay the balance amount and take delivery of the articles. But the plaintiffs persisted in their wailful refusal to perform their part and therefore the defendants had numberalternative but to forfeit the earnest money and companyduct a resale of the goods. The defendants further pleaded that the appellants had to pay them a sum of Rs. 42,499 for the loss and damage sustained by the defendants They further urged that the plaintiffs were number entitled to claim the refund of the sum of Rs. 2,50,000 or any part thereof which had been paid as earnest money and forfeited according to law, and the terms of companytract, by the defendants. Though the plaintiffs have raised various companytentions in the plaint, it is seen from the judgments of the learned Single Judge and the Division Bench, on appeal, that the appellants companyceded that they companymitted breach of companytract and that the defendants have been at all material times ready and willing to perform their part of the companytract. The plea that the plaintiffs entered into the companytract under a mistake of fact and that they were induced, to so enter into the companytract due to the misrepresentation of the defendants regarding the quantity of scrap available, was also given up. The appellants have also accepted the position that there has been a companycluded companytract between the parties and the said companytract was companycluded by the companyrespondence between the parties companysisting of the letters dated November 18, 1946 and November 20, 1946. The plaintiffs have further abandoned the plea that the defendants were number ready and willing to perform their part of the companytract. Therefore the two questions that ultimately survived for companysideration by the Court were 1 as to whether the sum of Rs. 2,50,000 was paid by the plaintiffs as and by way of part payment or as earnest deposit and 2 as to whether the defendants were entitled to forfeit the said amount. The learned Single Judge and, on appeal, the Division Bench, have held that the sum of Rs. 2,50,000 paid by the appellants was so paid as and by way of deposit or earnest money and that it is only when the plaintiffs pay the entire price of the goods and perform the companyditions of the companytract that the deposit of Rs. 2,50,000 will go towards the payment of the price. It is the further view of the Courts that the amount representing earnest money is primarily a security for the performance of the companytract and, in the absence of any provision to the companytrary in the companytract, the defendants are entitled to forfeit the deposit amount when the plaintiffs have companymitted a breach of companytract. In this view the defendants right to forfeit the sum of Rs. 2,50,000 was accepted and it has been held that the plaintiffs are number entitled to claim refund of the said amount. The plaintiffs suit, in the result, was dismissed by the learned Single Judge and, on appeal, the decree of dismissal has been companyfirmed. On behalf of the appellants Mr. Maheshwari, learned companynsel, has raised two companytentions 1 That the amount of Rs. 2,50,000 paid by the plaintiffs and sought to be recovered in the suit is number by way of a deposit or as earnest money and that, on the other hand, it is part of the purchase price and therefore the defendants are number entitled to forfeit the said amount. 2 In this case, it must be companysidered that the sum of Rs. 2,50,000 has been named in the companytract as the amount to be paid in case of breach or in the alternative the companytract companytains a stipulation by way of penalty regarding forfeiture of the said amount and therefore the defendants will be entitled, if at all, to receive only reasonable companypensation under S. 74 of the Contract Act and the Courts erred in number companysidering this aspect. Under this head, the companynsel also urged that even a forfeiture of earnest money can only be, if the amount is companysidered reasonable and in this case the amount which represents 25 of the total price cannot be companysidered to be reasonable and hence the appellants are entitled to relief in law. The learned Attorney General, on behalf of the respondents, pointed out that the material companyrespondence between the parties, by which the companytract was companycluded, read along with the terms of business will clearly show that the sum of Rs. 2,50,000 paid by the appellants was as earnest. It was further pointed out that the position in law is that the earnest money is part of the purchase price when the transaction goes through and is performed and that on the other hand it is forfeited when the transaction falls through by reason of the fault or failure of the vendee. The learned Attorney General invited us to certain decisions laying down the salient features of earnest deposit and the right of the party to whom the amount has been paid to forfeit when the opposite party has companymitted a breach of companytract. Regarding the second companytention of the appellant, the learned Attorney General pointed out that the appellants never raised any companytention that the amount of Rs. 2,50,000 deposited by the appellants is to be treated as a sum named in the companytract as the amount to be paid in case of breach or that the companytract must be companysidered to companytain any stipulation by way of penalty. He also pointed out that the question of reasonableness or otherwise of the earnest deposit forfeited in this case, was never raised by the appellant at any stage of the proceedings in the High Court. Therefore s. 74 of the Contract Act has numberapplication. The first question that arises for companysideration is whether the payment of Rs. 2,50,000 by the appellants was by way of deposit or earnest money. Before we advert to the documents evidencing the companytract in this case, it is necessary to find out what in law companystitutes a deposit or payment by way of earnest money and what the rights and liabilities of the parties are, in respect of such deposit or earnest money. Borrows, in Words Phrases, Vol. 11, gives the characteristics of earnest. According to the author, An earnest must be a tangible thing. That thing must be given at the moment at which the companytract is companycluded, because it is something given to bind the companytract, and, therefore, it must companye into existence at the making or companyclusion of the companytract. The thing given in that way must be given by the companytracting party who gives it, as an earnest or token of good faith, and as a guarantee that he will fulfil his companytract, and subject to the terms that if, owing to his default, the companytract goes off, it will be forfeited. If, on the other hand, the companytract is fulfilled, an earnest may still serve a further purpose and operate by way of part payment. Benjamin, in his book on Sale, 8th Edition, after referring to clause 17 of the Statute of Frauds and S. 4 1 of the Sale of Goods Act, 1893 providing for giving something in earnest to bind the -contract, or in part payment, says, at p. 219 give something in earnest or in part payment, are often treated as meaning the same thing, although the language clearly intimates that the earnest is something to bind the bargain, or, the companytract, whereas it is manifest that there can be numberpart payment till after the bargain has been bound, or closed. The author further states that there are two distinct alternatives, viz., a buyer may give the seller money or a present as a token or evidence of the bargain quite apart from the price, i.e., earnest, or he may give him part of the agreed price -to be set off against the money to be finally paid, i.e., part payment and that if the buyer fails -to carry out the companytract and it is rescinded, cannot recover the earnest, but he may recover the part payment. But this does number affect the sellers right to recover damages for breach of companytract unless it as by way of deposit or guarantee in which case it is forfeited. It is further stated that an earnest does number lose its character because the same thing might also avail as a part payment. Regarding deposit, the author states at p. 946, that a deposit is number recoverable by the buyer, for a deposit is a guarantee that the buyer shall perform his companytract and is forfeited on his failure to do so and if a companytract distinguishes between the deposit and installments of price and the buyer is in default, the deposit is forfeited. Halsbury, in Laws of England, Vol. 34, III Edition, in paragraph 189 at p. 118, dealing with deposit, states Part of the price may be payable as a deposit. A part payment is to be distinguished from a deposit or earnest. A deposit is paid primarily as security that the buyer, will duly accept and pay for the goods, but, subject thereto, forms part of the price. Accordingly, if the buyer is unable or unwilling to accept and pay for the goods, the seller may repudiate the companytract and retain the deposit. Earl Jowitt, in his Dictionary of English Law, says Giving an earnest or earnest-money is a mode of signifying assent to a companytract of sale or the like, by giving to the vendor a numberinal sum e.g., a shilling as a token that the parties are in earnest or have made up their minds. In Howe v. Smith 1 Fry, L.J., discussed the history of earnest, which is identical with a deposit. In that case, the plaintiff agreed to purchase a property for the price mentioned in the agreement and paid pound 500 on the signing of the agreement Al as a deposit and in part payment of the purchase-money. There where other stipulations in the agreement regarding title to the property and the payment of the balance of the purchase money. The plaintiff, apprehending that the defendant-vendor would resell the property, brought an action against him for specific performance of the agreement but the suit was dismissed on the ground L.R. 1884 Ch. D. 89. that there had been inordinate delay on the plaintiffs part in insisting on the companypletion of the companytract. The plaintiff appealed. Before the Court of Appeal a request was made on his behalf for leave to amend the plaint that if specific performance companyld number be decreed, he should get a return of the deposit of pound 500. Leave was granted by the Appellate Court and the question hence arose -as to whether the plaintiff was entitled to get a refund of the said amount. In dealing with the deposit claimed back by the plaintiff, Cotton, L.J., at p. 95, observes What is the deposit ? The deposit, as I understand it, and using the words of Lord Justice James in L. R. 10 Ch. 512 , is a guarantee that the companytract shall be performed. If the sale goes on, of companyrse, number only in accordance with the words of the companytract, but in -accordance with the intention of the parties in making the companytract, it goes in part, payment of the purchasemoney for which it is deposited but if on the default of the purchaser the companytract goes off, that is to say, if he repudiates the companytract, then, according to Lord Justice James, he can have numberright to recover the deposit. Bowen, L.J., at p. 98, states We have therefore to companysider what in ordinary parlance, and as used in an ordinary companytract of sale, is the meaning which business persons would attach to the term deposit. Without going at length into the history, or accepting all that has been said or will be said by the other members of the Court on that point, it companyes shortly to this, that a deposit, if numberhing more is said about it, is, according to the ordinary interpre- tation of business men, a security for the companypletion of the purchase. But in what sense is it a security for the companypletion of the purchase ? It is quite certain that the purchaser cannot insist on abandoning his companytract and yet recover the deposit, because that would be to enable him to take advantage of his own wrong Fry, L.J., at p. 101, observes Money paid as a deposit must, I companyceive, be paid on some terms implied or expressed. In this case numberterms are expressed, and we must therefore inquire what terms are to be implied. The terms most naturally to be implied appear to me in the case of money paid on the signing of a companytract to be that in the event of the companytract being performed it shall be brought into account, but if the companytract is number performed by the payer it shall remain the property of the payee. It is number merely a part payment, but is then also an earnest to bind the bargain so entered into, and creates by the fear of its forfeiture a motive in the payer to perform the rest of the companytract. Ultimately, the Court of Appeal rejected the claim of the plaintiff for refund of the deposit. In Soper v. Arnold 1 the House of Lords had to companysider the right of the plaintiff therein to claim a refund of the deposit made by him. In that case the plaintiff had companytracted to purchase a piece of land and entered into an agreement with the vendee. The agreement provided that the purchaser viz., the plaintiff, should make a deposit and it further provided that if the vendee failed to companyply with the companyditions, the deposit should be forfeited. The plaintiff, accordingly, paid the deposit but as he was number in a position to companyplete the companytract by paying the balance purchase money, the companytract companyld number be fulfilled. When in another litigation it was subsequently -found that the vendors title to the property was defective, the plaintiff brought an action to recover his deposit on the ground of mistake and failure of companysideration. The suit was dismissed and the Court of Appeal also companyfirmed the said decision. The House of Lords also finally rejected the plaintiffs claim. In discussing the nature of the deposit made by the plaintiff under the agreement, Lord Macnaghten at p. 435 observes The deposit serves two purpose-if the purchase is carried out it goes against the purchase-money, but its primary purpose is this, it is a guarantee that the purchaser means business and if there is a case in which a deposit is rightly and properly forfeited it is, I think, when a man enters into a companytract to buy real property without taking the trouble to companysider whether he can pay for it or number. In Farr, Smith Co. v. Messrs, Ltd. 2 dealing with the question as to whether the payment was by way of earnest given to bind the companytract, or it was a part payment towards the price. Wright J., observes at p. 408 Certain characteristics, however, seem to be clear, An earnest must be a tangible thing, in which definition it may be that a deposit is included, but in the old cases it was always some tangible thing. That thing must be given at the moment at which the companytract is companycluded, L.R. 188914 A.C. 429, 1 R. 1928 1 K.B.D. 397. 6Sup. CI/70-10 because it is something given to bind the companytract, and, therefore, it must companye into existence at the making or companyclusion of the companytract. The thing given in that way must be given by the companytracting party who gives it, as an earnest or token of good faith, and as a guarantee that he will fulfil his companytract, and subject to the terms that if, owing to his default, the companytract goes off, it will be forfeited. If on the other hand, the companytract is fulfilled, an earnest may still serve a further purpose and operate by way of part payment. The learned Judge, quoting the observations of Hamilton, J., in Sumner and Leivesley v. John Brown Co. 1 , observes at p. 409 Earnest. . . meant something given for the purpose of binding a companytract, something to be used to put pressure on the defaulter if he failed to carry out his part. If the companytract went through, the thing given in earnest was returned to the giver, or, if money, was de- ducted from the price. If the companytract went off through the givers fault the thing given in earnest was forfeited. The Judicial Committee had to companysider in Chiranjit Singh v. Har Swarup 2 the question as to whether a payment maade by way of earnest money by a buyer companyld be recovered when the buyer had companymitted breach of companytract. In that case the plaintiff had entered into a companytract with the defendant for purchase of a property. One of the terms of the companytract of sale was Willing on old terms namely earnest twenty thousand balance in two moieties. first payable on executing companyveyance, last within six months net cash we receive 4 lakhs 76,000. The plaintiff did number pay the earnest money eo numberine but sent two cheques amounting to Rs. 1,65,000 and obtained a receipt ?hat this amount was paid towards the sale price of the estate in question out of the total companysideration of Rs. 4,76,000. Later the plaintiff informed the defendant that he was number in a position to companyplete the purchase and gave opportunity to the latter to sell the property to any other party. Therefore it was clear that the plaintiff-purchaser was unable or unwilling to companyplete the companytract of purchase. The, plaintiff, numberwithstanding his default, sued to recover the entire sum of Rs. 1,65,000 paid by him. The High Court held that as the plaintiff had broken the companytract, he must lose the earnest money of Rs. 20,000 but was entitled to a refund of the balance amount of Rs. 1,45,000 from and out of the amounts paid by him on that account. The plaintiff, dissatis- 1 25 Times L. R, 745. A.I.R. 1926 P.C. 1. fled with the decision of the High Court, carried the matter in appeal to the Judicial Committee for obtaining relief of repayment of earnest money also. The Judicial Committee agreed with the High Court that from and out of the amounts paid by the plaintiff, a sum of Rs. 20,000 was earnest money and there was numberhing in the companytract to suggest that the seller had agreed to sacrifice the stipulated earnest. Regarding the legal incidents of earnest money, the Judicial Committee stated Earnest money is part of the purchase price when the transaction goes forward it is forfeited when the transaction falls through, by reasons of the fault or failure of the vendee. Holding that the above principle applied squarely to the companytract before them, they dismissed the paintiffs appeal for refund of earnest. From a review of the decisions cited above, the following principles emerge regarding earnest It must be given at the moment at which the companytract is companycluded. It represents a guarantee that the companytract will be fulfilled or, in other words, earnest is given to bind the companytract. It is part of the purchase price when the transetion is carried out. It is forfeited when the transaction falls through by reason of the default or failure of the purchaser. Unless there is anything to the companytrary in the terms of the companytract, on default companymitted by the buyer, the seller is entitled to forfeit the earnest. Having due regard to the principles enunciated above, -we shall number companysider, the relevant claims in the companytract between the parties in the case, before us, to ascertain whether the amount of Rs. 2,50,000 paid by the appellant companystitutes earnest money and if so whether the respondents were justified in law in forfeiting the same. We have already referred to the letter, dated November 18, 1946 written by the respondents to the appellants companyfirming the sale of scrap lying in Dump No. 1. That letter states that the total price for which the appellants agreed to purchase the scrap material is Rs. 10,00,000 against which a sum of Rs. 2,50,000 had been paid and the balance amount was to be paid that day itself. In the reply sent by the appellant on the same day, they companyfirmed the arrangement referred to by the respondents but, regarding the payment of the balance amount, they agreed to pay the same in two instalments. The letter of November 18, 1946 to the appellants clearly refers to the fact that the Companys Terms of Business applied to the companytract and a companyy of the said terms was also sent to the respondents. The respondents, by companyfirming the arrangement, by their letter of November 18, 1946 were fully aware that the terms of business of the respondent companypany formed part of the companytract. entered into between the parties. We have also referred, earlier, to clauses 9 and 10 of the Terms of Business of the respondents. Clause 9 requires the buyer to deposit 25of the total value of the goods at the time of placing the order. That clause also further provides that the deposit shall remain with the companypany as earnest money, to be adjusted in the final bills. It further provides that numberinterest is payable to the buyer by the companypany on such amounts held as earnest money. There is numbercontroversy in this case that the appellants deposited the sum of Rs. 2,50,000 under this clause nine, representing 25 of the purchase price of Rs. 10,00,000. It is therefore clear that this amount deposited by the appellant is a deposit as earnest money, Mr, Maheshwari drew our attention to the letter, dated Nov- ember 18, 1946 sent by the respondents to the appellants wherein the respondents have stated that the appellants have agreed to pay Rs. 10,00,000 for all the materials in Dump No. 1 against which a cheque for Rs. 2,50,000 has been paid and that the appellants further agreed to pay the balance of Rs. 7,50,000 that day itself. This statement, according to the learned companynsel, will clearly show that the sum. of Rs. 2,50,000 has been paid as part payment towards the total price, pure and simple, and there is numberquestion of any payment by way of earnest money. But this companytention ignores the last recital in the said letter wherein it has been specifically stated that the terms of business of the respondent companypany applied to the companytract. This companydition has also been accepted by the appellants in their reply, dated November 18, 1946. Therefore the position is this, that the terms of business of the respondent companypany have been incorporated as part of the letter and has been embodied in the terms of companytract between the parties. Clause 9, to which we have already referred, clearly shows that 25 of the total value is to be deposited and that amount is to remain with the respondents as earnest money. It is again emphasized in clause 9 that the amount so deposited as earnest will number bear any interest, but will be only adjusted in the final bills. Therefore the amount of Rs. 2,50,000 deposited by the appellants, representing 25 of the total of Rs. 10,00,000, is earnest money under clause 9 of the Terms of Business. We have also earlier referred to clause 10 of the Terms of Business, which relates to the time and method of payment. Under clause 10 b a right is given to the respondents when the buyer makes default in making payment according to the companytract, to forfeit unconditionally the earnest money paid by the buyer. That clause further provides that this forfeiture of earnest money is without proudly to the other rights of the respondents in law. We have referred to the fact that though the appellants raised pleas that they have number companymitted any breach of companytract and that on the other hand the respondents were the parties in breach, these companytentions were number pursued and had been abandoned before the High Court. Further, as numbered by the High Court, the appellants companyceded that they had companymitted a breach of the companytract. If so, as rightly held by the High Court, under clause 10 b the respondents were entitled to forfeit the earnest money of Rs. 2,50,000. Before closing the discussion on this aspect, it is necessary to numbere that in the case before the Privy Council, in Chiranjit Singhs Case, though the companytract stipulated that a sum of Rs. 20,000 should be paid as earnest, the buyer did number pay any amount by way of earnest, as such, but he paid by two cheques the sum of Rs. 1,65,000 against the purchase price of Rs. 4,76,000. The receipt of the sum of Rs. 1,65,000, granted by the seller was also stated to be only towards the sale price. But, nevertheless, the High Court, as well as the Judicial Committee, treated a sum of Rs. 20,000 out of the sum of Rs. 1,65,000, as earnest money paid under the terms of the agreement, and a claim to recover that amount of earnest money was negatived. In the case before us, the companytract read with the Terms of Business of the companypany, clearly refers to the earnest money being paid and to the fact of Rs. 2,50,000 having been paid as earnest. Therefore, there is numberambiguity regarding the nature of the above payment and the right of the respondents to forfeit the same, under the terms of the companytract, when the appellants admittedly had companymitted breach of the companytract, cannot be assailed. The first companytention for the appellants therefore fails. The second companytention of Mr. Maheshwari, numbered earlier, is really based upon ss. 73 and 74 of the Contract Act. According to the learned companynsel, under s. 73, the respondents wilt be entitled only to companypensation for any loss or damage caused to them by the breach of the companytract, companymitted by the appellants. Counsel very strongly relied upon s. 74 of the Contract Act. According to him, the sum of Rs. 2,50,000, referred to in the companytract, must be treated as the amount to be paid in case of a breach. In the alternative, companynsel also urged that the provision in the companytract regarding the forfeiture of the said amount, should be treated as a term companytaining a stipulation by way of a penalty. Under any of these circumstances, the remedy of the aggrieved party would be to get companypensation which is adjudged reasonable by the Court. Counsel also urged that earnest money, unless it is companysidered to be a reasonable amount, companyld number be forfeited in law. The learned Attorney General very strongly urged that the pleas companyered by the second companytention of the appellant had never been raised in the pleadings number in the companytentions urged before the High Court. The question of the quantum of earnest deposit which was forfeited being unreasonable or the forfeiture being by way of penalty, were never raised by the appellants. The Attorney General also pointed out that as numbered by the High Court the appellants led numberevidence at all and, after abandoning the various pleas taken in the plaint, the only question pressed before the High Court was that the deposit was -not by way of earnest and hence the amount companyld number be forfeited. Unless the appellants had pleaded and established that there was unreasonableness attached to the amount required to be deposited under the companytract or that the clause regarding forfeiture amounted to a stipulation by way of a penalty, the respondents had numberopportunity to satisfy the Court that numberquestion of unreasonableness or the stipulation being by way of penalty arises. He further urged that the question of unreasonableness or otherwise regarding earnest money does number at all arise when it is forfeited according to the terms of the companytract. In our opinion the learned Attorney General is well founded in his companytention that the appellants raised numbersuch companytentions companyered by the second point, numbered above. It is therefore unnecessary for us to go into the question as to whether the amount deposited by the appellants, in this case, by way of earnest and forfeited as such, can be companysidered to be reasonable or number. We express numberopinion on the question as to whether the element of unreasonableness can ever be companysidered regarding the forfeiture of an amount deposited by way of earnest and if so what are the necessary factors to be taken into account in companysidering the reasonableness or otherwise of the amount deposited by way of earnest. If the appellants were companytesting the claim on any such grounds, they should have laid the foundation for the same by raising appropriate pleas and also led proper evidence regarding the same, so that the respondents would have had an opportunity of meeting such a claim. In this view, it is unnecessary for us to companysider the decision of this Court in Maula Bux v. Union of India 1 relied on by the appellants and wherein there is an observation to the effect Forfeiture of earnest money under a companytract for sale of property-movable or immovable-if the 1 1970 1 S. C.R. 928. amount is reasonable, does number fall within S. 74 of the Indian Contract Act . That has been decided in several cases. Kunwar Chiranjit Singh v. Har Swarup AIR 1926 P.C. Roshan Lal v. The Delhi Cloth and General Mills Co. Ltd. Delhi ILR 33 All. 166 Muhammad Habibullah v. Muhammad Shafi ILR 41 All. 324 Bishan Chand v. Radha Kishan Das ILR 19 All. 489 . These cases are easily explained, for forfeiture of reasonable amount paid -as earnest money does number amount to imposing a penalty. But if forfeiture is of the nature of penalty, S. 74 applies. Where under the terms of the companytract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party companyplaining of a breach of companytract, the undertaking is of the nature of a penalty. The learned Attorney General has pointed out that the decisions referred to in the, above quotation do number lay down that the test of reasonableness applies to an earnest deposit and its forfeiture. He has also pointed out that this Court, in the above decision, did number agree with the view of the High Court that the deposit, the recovery of which was sued for by the plaintiff therein, was earnest money. The learned Attorney General also referred Us to various decisions, wherein, according to him, though the amounts deposited by way of earnest were fairly large in proportion to the total price fixed under the companytract, nevertheless the forfeiture of those amounts were number interfered with by the Courts. But, as we have already mentioned, we do number propose to go into those aspects in the case on hand. As mentioned earlier, the appellants never raised any companytention that the forfeiture of the amount amounted to a penalty or that the amount forfeited is so large that the forfeiture is bad in law. Nor have they raised any companytention that the amount of deposit is so unreasonable and therefore forfeiture of the entire amount is number justified. The decision in Maula Buxs Case 1 had numberoccasion to companysider the question of reasonableness or otherwise of the earnest deposit being forfeited. Because , from the said judgment it is clear that this Court did number agree with the view of the High Court that the deposits made, and which were under companysideration, were paid as earnest money. It is under those circumstances that this Court proceeded to -consider the applicability of s. 74 of the Contract Act. Mr. Maheshwari has relied upon the decision of this Court in Fateh Chand v. Balkishan Das 1 wherein, according to him, this 1 1970 1 S.C.R. 928. 2 1964 1 C.R. 515. Court has held, under similar circumstances, that the stipulation under the companyrtact regarding forfeiture of the amount deposited is a stipulation by way of penalty attracting s. 74 of the Contract Act. On this assumption, companynsel urged that there is a duty, statutorily imposed upon Courts by S. 74 of the Contract Act number to enforce the penalty clause but only to award reasonable companypensation. This aspect, he urges, has been totally missed by tile High Court. We are inclined to accept this companytention of the learned companynsel. This Court had to companysider, in the said decision, two questions i Whether the plaintiff therein was entitled to forfeit a sum of Rs. 1,000 paid as earnest money on default companymitted by the buyer and ii whether the plaintiff was further entitled to forfeit the entire sum of Rs. 24,000 paid by the buyer under the companytract which recognised such right. This Court held that the plaintiff was entitled to forfeit the sum of Rs. 1,000 paid as earnest money, when default was companymitted by the buyer. But, regarding the second item of Rs. 24,000 this Court held that the same cannot be treated as earnest and therefore the rights of the parties would have to be adjudged under s. 74 of the Contract Act. In view of this companyclusion the Court further had to companysider the relief that the plaintiff had to get when breach of companytract was companymitted by the buyer and, in dealing with this question, it observed at p. 526 Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases i where the companytract names a sum to be paid in case of breach and ii where the companytract companytains any other stipulation by way of penalty. We are in the present case number companycerned to decide whether a companyenant of forfeiture of deposit for due performance of a companyrtact falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by s. 74 reasonable companypensation number exceeding the penalty stipulated for. Again, at p. 528 it observed In our judgment the expression the companytract companytains any other stipulation by way of penalty companyprehensively applies to every companyenant involving a penalty whether it is for payment on breach of companytract of money or delivery of property in future, or for forfeiture of right to money or other property already delivered. Duty number to enforce the penalty clause but only to award reasonable companypensation is statutorily imposed upon companyrts by s. 74. In all cases, therefore, where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of companytract which expressly provides for forfeiture, the companyrt has jurisdiction to award such sum only as it companysiders reasonable, but number exceeding the amount specified in the companytract as liable to forfeiture. The Court further observed at p. 529 There is numberground for holding that the expression companytract companytains any other stipulation by way of penalty is limited to cases of stipulation in the nature of an agreement to pay money or deliver property on breach and does number companyprehend companyenants. under which amounts paid or property delivered under the companytract, which by the terms of the companytract expressly or by clear implication are liable to be forfeited. Section 74 declares the law as to liability upon breach of companytract where companypensation is by agreement of the parties predetermined, or where there is a stipulation by way of penalty. But the application of the enactment is number restricted to cases where the aggrieved party claims relief as a plaintiff. I The section does number companyfer a special benefit upon any party it merely declares the law that numberwithstanding any term in the companytract predetermining damages or providing for for- feiture of any property by way of penalty, the companyrt will award to the party aggrieved only reasonable companypensation number exceeding the amount named or penalty stipulated. The jurisdiction of the Court is number deter-mined by the accidental circumstance of the party in default being a plaintiff or a defendant in a suit. Use of the expression to receive from the party who has broken the companytract does number predicate that the jurisdiction of the companyrt to adjust amounts which have been paid by the party in default cannot be exercised in dealing with the claim of the party companyplaining of breach of companytract. This Court applied s. 74 of the Contract Act, and ultimately fixed a particular amount which the plaintiff would be entitled to as reasonable companypensation in the circumstances. Mr. Maheshwari placed companysiderable reliance on the above extracts in support of his companytention and urged that the recitals regarding forfeiture of the amount of Rs. 2,50,000 shows that the companytract companytains a stipulation by way of penalty and therefore s.74 is attracted. It is number possible to accept this companytention. As we have already pointed out, this Court, in the above decision, recognised the principle that earnest money can be forfeited, but in dealing with the rest of the amount which was number, admittedly, earnest money, s.74 was applied. In the case before us the entire amount, as evidenced by the companytract and as held by us earlier, is earnest money and therefore the above decision does number apply. Mr. Maheshwari finally urged that s.64 of the Contract Act may apply and he also relied on the decision of the Judicial Committee in Murlidhar Chatterjee v. International Film Co. 1 . On the basis of that ruling he urged that the respondents are bound to restore the benefit that they have obtained under the companytract. In our opinion there is numberscope for applying s.64 of the Contract Act and it follows that the decision of the Judicial Committee, referred to above, and dealing with s.64 has numberrelevance. We have already pointed out that the appellants raised a companytention that they had been induced to enter into the agreement on a misrepresentation made by the respondents regarding the quantity of material available. If the. appellants had proceeded on that basis, then the companytract would have been voidable at their instance under s.19 of the Contract Act. But they have abandoned that plea and have admitted that the breach of companytract was companymitted by them. Hence s. 64 cannot be invoked by the appellants. In this view, the second companytention also fails.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2006 of 1966. Appeal by special leave from the Award dated February 17, 1966 of the Industrial Tribunal, Delhi in I.D. No. 176 of 1965. R. Gupta and H. K. Puri, for the appellants. K. Daphtary, D. R. Thadani and A. N. Goyal, for the respondent. The Judgment of the Court was delivered by Dua, J. The Workmen of M s. Delhi Cloth and General Mills, Bara Hindu Rao, Delhi, have appealed to this Court by special leave from the award of the Additional Industrial Tribunal, Delhi dated February 17, 1966 holding that Shibban Lal was bound by the settlement dated June 9, 1965 and, therefore, there was numberindustrial dispute on the date of reference which companyld be referred for adjudication. The facts necessary for the purpose of this appeal may number be briefly stated. The Chief Commissioner, Delhi by means of an order dated September 9, 1965 referred the dispute in companytroversy to the Additional Industrial Tribunal, the order of reference being in the following terms Whereas from a report submitted by the Conciliation Officer, Delhi under section 12 4 of the Industrial Dispute Act, 1947, it appears that an industrial dispute exists between the management of M s. Delhi Cloth General Mills, Ltd., Bara Hindu Rao, Delhi and its workmen and Shri Shibban Lal and the said dispute has been taken up by the C.M. City Shop Karamchari Union, 1121, Chatta Madan Gopal, Maliwara, Chandni Chowk, Delhi. Before the Additional Industrial Tribunal the Management had raised various preliminary objections including the objection that Kapra Karamchari Sangh hereafter called the Sangh was number companypetent to take up the case of Shri Shibban Lal, and that the D.C.M. City Shop Karamchari Union hereafter called the Union , which had originally taken up the cause of workmen, having agreed by the settlement dated June 9, 1965 number to prosecute his case, withdrew its support to his cause with the result that the dispute relating to the dismissal of Shibban Lal was, number an industrial dispute. It was further averred that Shibban Lal was bound by the act of his representatives who had made the settlement dated June 9, 1965, and was, therefore, estopped from challenging the same. On these preliminary objections the following four issues were framed and were taken up for decision in the first instance. Has the Karpra Karamchari Sangh numberlocus- standi to file the statement of claim ? Is the reference incompetent because of settlement dated June 9, 1965 between the C.M. City Shop Karamchari Union and Management ? Is the dispute number an industrial dispute? Is Shibban Lal estopped from raising the present dispute ? On issue No. 1. the Tribunal held that although the Sangh had been merely authorised to represent Shibban Lal and was number a party entitled to file the statement of claim in its own right, nevertheless the claim filed by it was to be deemed to be on behalf of Shibban Lal who had agreed to be represented by the Sangh. Issues Nos. 2 to 4 were discussed together and the Tribunal held that the settlement dated June 9, 1965 which was signed on behalf of workmen by the Secretary and Vice President of the Union was number arrived at by unauthorised persons. The said settlement was, therefore, held binding on persons who were parties thereto and Shibban Lal being a member of the Union was bound by it. In face of that settlement, the Tribunal felt that there was numberindustrial dispute which companyld be referred for adjudication on the date of reference. In this Court on behalf of the respondent, the Management of M s. Delhi Cloth and General Mills Ltd. a preliminary objection was raised to the companypetency of the present appeal. It was companytended by Shri Daphtary that the appeal was presented in this Court by the Sangh which was neither a party to the industrial dispute before the Tribunal, number did it espouse the cause of Shibban Lals dismissal. Shibban Lal, according to the submission, being a party affected companyld certainly appeal but number the Sangh. It was added that Shibban Lal being the solitary employee of the respondent, who was the member of the Sangh the latter was number only disentitled to espouse Shibban Lals cause but as a matter of fact it did number so the Sangh, the companynsel argued, merely undertook to represent Shibban Lal before the Tribunal. We are unable to uphold the preliminary objection. It is clear from the record that the Union originally took up Shibban Lals cause. On June 18, 1965 the Conciliation Officer submitted his failure report to the Government. It is apparent that till then the Conciliation Officer was number informed by either of the parties that a settlement had been arrived at in the matter of the dispute in question. Indeed the record shows that Shri Jai Bhagwan Sharma, who represented the workman in the companyciliation proceedings had informed the Conciliation Officer that numbersettlement had been reached. The settlement dated June 9, 1965 appears to have been filed before the Conciliation Officer on June 30, 1965, long after the submission of the failure report. The Additional Industrial Tribunal after taking companynizance of the dispute issued numberice to the parties on September 16, 1965 fixing October 5, 1965 for filing the statements of claim. The case was, however, taken up on October 6, 1965 because October 5, 1965 was declared a gazetted holiday. On October 6, 1965 the written statement was filed by the Management. The Sangh also filed a statement of claim on behalf of Shibban Lal through Shri Jai Bhagwan, General Secretary of the Sangh, with an application for substituting the Sangh in place of the Union as mentioned in the reference, it being averred in the application for substitution that companysequent upon the Union having entered into a settlement with the Management number to companytest Shibban Lals claim, 53 out of 88 workers of D.C.M. City Shop had requested the Sangh to take up Shibban Lals case and the Sangh thereupon unanimously decided to take up his cause. The dispute, it was added, companycerned all workmen. The Management was given an opportunity to file objections to this application. On October 28, 1965 the Management opposed the application of the Sangh for being impleaded in place of the Union. While opposing the prayer of the Sangh the Management expressed ignorance about the averment that 53 out of 88 workers of D.C.M. City Shop had requested the Sangh to take up the cause of Shibban Lal. It was added that espousal by the Sangh at that stage was illegal as the matter had already been referred by the Government. Espousal, according to this plea, companyld only be at the stage of companyciliation proceedings and number after the reference. It was also denied that the dispute companycerned all workmen. An agreement having been entered into by the Union, representation by the Sangh was described to be an abuse of the process of law. The dispute, pleaded the Management, had been settled for ever and Shibban Lal was a party to the said settlement. Shibban Lal filed an affidavit on November 3, 1965, affirming that, on December 26, 1964, the Union had properly resolved to companytest his claim And that on December 28, 1964 the statement of claim, regarding Shibban Lals proposed retirement on December 31, 1964, was filed before the Conciliation Officer. It was further affirmed in this affidavit i that during the pendency of the dispute before the Conciliation Officer, the Management retired him and he was number allowed to join duty with effect from January 1, 1967, ii that in the absence of any valid authority either from the Union or from the parties, pursuant to a resolution to that effect, passed by the workmen of the establishment, Shri Musaddi Lal and Shri Babu Ram had numberauthority to enter into any settlement in respect of deponents dispute, iii that numbersettlement was ever brought to the numberice of the Union or the workmen, iv that on June 14, 1965 the Union of the workmen opposed the said settlement, was resolved that the Union did number agree to any settlement whatsoever regarding the deponents retirement, including settlement in respect of the companyciliation proceedings, v that on July 25, 1965 the Union of the workmen opposed the said settlement, vi that the settlement had been filed by the companyciliation Officer on June 24, 1965 whereas the failure report of the said officer had even reached the Government on June 18, 1965, vii that the settlement had number been verified by the Conciliation Officer, viii that the deponent had also written a letter to the Union challenging the authority of the signatories on its behalf, and even the authority of the Union itself, to enter into the said settlement without appropriate and valid authority, ix that the deponent companyld number read or write Hindi or English except that he companyld sign his name in English and X that out of 88 employees 53 had authorised the Sangh to take up the deponents case with the result that espousal by his companyemployee workers was companytinuous. In the affidavit of Shri Deoki Nandan Agarwal, on behalf of the Management, sworn on November 4, 1965, it was affirmed inter alia i that the Management and the Union had on June 9, 1965 entered into two settlements, one relating to the industrial dispute case No. 211 of 1962 and the other relating to the age of retirement including the case of Shibban Lal etc. pending before the Conciliation Officer. The settlement relating to the Industrial Dispute Case No. 211 of 1962 had been made an award of the Court and the other settlement relating to the age of retirement had been filed before the Conciliation Officer, companyies of both the settlements having been forwarded to Government authorities, ii that Shibban Lal being the President of the Union, at the time of settlement, was bound by it and iii that the Sangh, having number espoused the cause of Shibban Lal before September 2, 1965, the date of reference, companyld number do so thereafter number companyld any other member of the Union take up his cause after the settlement dated September 6, 1965. The application for substitution was finally heard oil December 17, 1965 when Shri D. R. Gupta, on behalf of the Sangh stated that he did number want the Sangh to be substituted in place of the Union but he merely wanted it to represent Shibban Lal, who was at that time its member. Shri G. C. Bhandari, on behalf of the Management, did number object to Shibban Lal being represented by the Sangh and he companyfined his objection only to Shibban Lals cause being espoused by the Sangh after the order of reference. The Tribunal accordingly allowed the Sangh to represent Shibban Lal. Up to that stage the Management did number press the point that there was numbervalid statement of claim filed on behalf of Shibban Lal and the validity of the claim filed by the Sangh had been apparently assumed. The Management was perhaps at that time only thinking of questioning the existence of industrial dispute on the ground that Shibban Lals dispute was an individual dispute, number being espoused by any union of workmen. The validity of the statement of claim filed by the Sangh was mooted and pressed in one of the preliminary objections which gave rise to preliminary issue No. 1 reproduced earlier in this judgment. On this issue, as already observed, the Tribunal decided that the claim filed by the Sangh should be deemed to have been filed on behalf of Shibban Lal. The respondents companynsel did number challenge the companyrectness of this view of the Tribunal and it was number the respondents submission before us that there was numberproper statement of claim on behalf of Shibban Lal. In this Court also special leave application is supported by an affidavit sworn by Shibban Lal, the workman companycerned. The special leave application and the, appeal must, therefore, be held to have been filed in this Court by the Sangh as representing Shibban Lal, who apparently agreed to be so represented by the Sangh. On the facts and circumstances of this case, we do number think that the present appeal can be companysidered to be unauthorised and legally incompetent on the technical ground urged on behalf of the respondent and we do number find any companyent ground to reject the appeal on the basis of the preliminary objection. We number turn to the merits of the companytroversy. The Tribunal took the view that the dispute regarding retirement age of Shibban Lal ceased to be an industrial dispute because of the settlement dated June 9, 1965 and, therefore, it companyld number be referred to it for adjudication. Support of his case by the workers of any other Union after reference companyld number in its view validate the reference. The appellants learned companynsel challenged this view and drew our attention to r. 58 of the Industrial Disputes Central Rules, 1957 made under S. 38 of the Industrial Disputes Act, 1947. This rule reads as under Memorandum of settlement A settlement arrived at in the companyrse of companyciliation proceedings or otherwise shall be in form H 2 the settlement shall be signed- a in the case of an employee, by the employer himself, or by his authorised agent, or when the employer is an incorporated companypany or other body companyporate, by the agent, manager or other principal officer of the companyporation b in the case of workmen, by any officer of a trade union of workmen or by five representatives of workmen duly authorised in this behalf at a meeting of the workmen held for the purpose. Explanation-In this rule officer means any of the following officers, namely- a the President b the Vice-President c the Secretary including the General Secretary d a Joint Secretary e any other officer of the trade union authorised in this behalf by the President and Secretary of the Union. Where a settlement is arrived at in the companyrse of companyciliation proceeding the Conciliation Officer Shall send a report thereof to the Central Government together with a companyy of the memorandum of settlement signed by the parties to the dispute. Where a settlement is arrived at between an employer and his workmen otherwise than in the companyrse of companyciliation proceeding before a Board or a Concilia- tion Officer, the parties to the settlement shall jointly send a companyy thereof to the Central Government, the Chief Labour Commissioner Central New Delhi, and the Regional Labour Commissioner, New Delhi, and to the Conciliation Officer Central companycerned. Form H may also number be reproduced Form for Memorandum of Settlement Name of parties Representing employer s Representing workmen Short recital of the case Terms of settlement Witness 1 2 Signature of the parties Signature of Conciliation Officer Board of Conciliation Copy to Conciliation Officer Central here enter the office address of the Conciliation Officer in the local area companycerned . Regional Labour Commissioner Central Chief Labour Commissioner Central New Delhi The Secretary to the Government of India, Ministry of Labour, New Delhi. The plain reading of the rule and the Form, according to the appellant, clearly suggests its mandatory character. It was companytended that the settlement was number entered into with the companycurrence of he Conciliation Officer number was it entered during the companyciliation proceedings. Particular emphasis was laid on numbercompliance with sub-rule 4 . The settlement, in the circumstances, was urged to be invalid and the reference of the dispute quite in accordance with law. In this companynection the learned advocate referred to s. 18 of the Industrial Disputes Act, 1947 which is as follows Persons on whom settlements and awards are binding 18. 1 A settlement arrived at by agreement between the employer and workmen otherwise than in the companyrse of companyciliation proceeding shall be binding on the parties to the agreement. Subject to the provisions of sub-section 3 an arbitration award which has became enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. A settlement arrived at in the companyrse of companyciliation proceedings under this Act or an arbitration award in a case where a numberification has be-en issued under sub- section 3A of section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on- a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, Arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause c where a party referred to in clause a or clause b is an employer, his heirs, successors, or assigns in respect of the establishment to which the dispute relates d where a party referred to in clause a or clause b is companyposed of workmen, all persons who were employed in the establishment-or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. The decision in The Bata Shoe Co. P Ltd. v. D. N. Ganguly l was cited in support of the submission that a settlement during the companyciliation proceedings to be binding must be arrived at with the assistance and companycurrence of the Conciliation Officer. The respondents learned Advocate in reply obliquely sug- gested in this companynection that the Management and the Union were free to arrive at a settlement of their dispute and if they agreed to do so then the agreement companyld number but be held to be 1 1960 3.S.C.R. 308. binding. We do number think the Management and the Union can, when a dispute is referred to the Conciliation Officer, claim absolute freedom of companytract to arrive at a settlement in all respects binding on all workmen, to which numberobjection whatsoever can ever be raised by the workmen feeling aggrieved. The question of a valid and binding settlement in such circumstances, is in our opinion, governed by the statute and the rules made thereunder. Reliance was next placed on s.18 1 to support the binding character of the settlement. This sub-section for its pro- per companystruction must be read with the other sub-sections and the relevant rules, in the light of the definition of settlement as companytained in s. 2 p of the Industrial Disputes Act. Settlement as defined therein means settlement arrived at in the companyrse of companyciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the companyrse of companyciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a companyy thereof has been sent to the appropriate Government and the Conciliation Officer. In the light of these provisions we do number think that s. 1 8 1 vests in the Management and the Union unfettered freedom to settle the dispute as they please and clothe it with a binding effect on all workmen or even on all member workmen of the Union. The settlement has to be in companypliance with the statutory provisions. It was then companytended by Shri Daphtary that number-compliance with r. 8 8 4 having number been pleaded by the appellant before the Tribunal, numberquestion of proof by the respondent of companypliance therewith arose. This plea, it was strongly objected, should number be allowed to be raised at this late stage in this Court. We are number impressed by this submission. On reference hav- ing been made by the Government to the Tribunal, if the respondent wanted to show that this reference was invalid because of a lawful settlement, then it was incumbent on the party relying on such a settlement to prove that it was lawful and valid, rendering the reference illegal. This was particularly so when we find that Shibban Lal had in his affidavit expressly asserted that the settlement relied upon had number been filed before the Conciliation Officer prior to June 18, 1965 when he sent his failure report and also that the two persons entering into the settlement had numberauthority either from the Union or from the members thereof to enter into a binding agreement. Section 38 of the Industrial Disputes Act empowers the appropriate Government to make rules for the purpose of giving effect to the provisions of the Act. Rules made by the Central Government have to be laid before each House of Parliament while in session for a period of 30 days and the Houses of Parliament are given an opportunity of number only modifying them but even of deciding that the rules should number be made at all. These rules thus appear to us to have full force of law of which judicial numberice has to be taken. It was therefore incumbent on the Tribunal to satisfy itself that the settlement relied upon by the respondent in support of the plea of it legality of the reference, which vitally affected its jurisdiction, was in accordance with the provisions of both Industrial Disputes Act and the relevant statutory rules. This was all the more so in view of the pleas companytained in Shibban Lals affidavit produced before the Tribunal to which reference has already been made in this judgment. Though numberreference was specifically made to r.58, the facts affirmed were reasonably clear to attract the attention of the Tribunal to the question of legality of the settlement. Bearing in mind the object of the Industrial Disputes Act and the important public purpose which it is designed to serve, the Tribunal, in our view, had an obligation to make a deeper probe into the validity of the settlement and number to accept it casually. However, on the respondents argument that r.58 had number been specifically relied upon by the appellant before the Tribunal we felt inclined and indeed suggested to the respondent during the companyrse of arguments that the case might be submitted to the Tribunal for the purpose of deciding the question of companypliance with the said rule, particularly with sub-rule 4 . But the respondents learned Advocate with his usual fairness, frankly pointed out that remand for this purpose would number be of much use because this sub-rule had number been companyplied with in terms. A faint suggestion thrown at once stage that it had been substantially companylied with was number seriously pressed though our attention was drawn in that companynection to a letter written by the Management on July 16, 1965 to the Secretary, Ministry of Labour, Government of India, enclosing a companyy of the settlement arrived at by the Management and the Union in companynection with the matters stated therein. The settlement was said to companytain the following Age of retirement Case of Shri Shibban Lal Case of Shri Mansuka Case of 7 Kahars Case of reduction in pay of 12 workmen Case of Shri Jagan Nath Case of Shri Chiranjilal Pahalwan. This letter quite clearly does number amount to companypliance with the rule. Keeping in view its object and purpose, this rule does seem to demand full companypliance in order to clothe the settlement with a binding character on all workmen. We may observe here that we were number impressed by the appellants argument that r.58 sub-rule 2 b required that the officer of a trade union of workmen must also be duly authorised. We, however, do number express any companysidered opinion in view of our companyclusion on other points. In the result this appeal must be allowed and the impugned order set aside. As the respondents have companyceded that there is numbercompliance with r. 5 8 4 the settlement in regard to the dispute referred to the Tribunal, must, therefore, be held to be illegal. The case, has, therefore, to go back to the Tribunal for adjudication upon the dispute on the merits.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 358 of 1969. Appeal from the judgment and order dated February 5, 1969 of the Assam and Nagaland High Court in Civil Rule No. 222 of 1968. C. Setalvad, Naunit Lal and S. N. Choudhury, for the, appellants. Sarjoo Prasad, R. B. Datar and S. N. Prasad, for respondent No. 4. K. Nandy, for respondent No. 5. The Judgment of the Court was delivered by Hidayatullah, C.J. This is an appeal by certificate under Art. 12 of the Constitution against the judgment and order of the High Court of Assam, February 5, 1969. It is filed by the State of Assam and the Legal Secretary to the Government of Assam and challenges a writ of quo warranto issued against Upendra Nath Rajkhowa, Distt. Sessions Judge, Darrang at Tezpur declaring that he was number entitled to hold that office. It was issued at the instance of Respondents 1 to 3 in this appeal. These respondents on companyviction by Upendra Nath Rajkhowa in a sessions trial, challenged their companyviction inter alia on the ground that Shri Rajkhowa was number entitled to hold the post of District and Sessions Judge, Darrang. The High Court held that the promotion of Rajkhowa by the Governor as Additional District Judge by numberification LJJ 74/66/65 dated 19-6-67 purporting to act under Art. 233 was void because he companyld only be promoted by the High Court acting under Art. 235 Consequently his further appointment as Dis- Art. 233. 1 Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in companysultation with the High Court exercising jurisdiction in relation to such State. A person number already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for number less than seven years an advocate or a pleader and is recommended by the High Court for appointment Art. 235. The companytrol over district companyrts and companyrts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferror to the post of district judge shall be vested in the High Court, but numberhing in this article shall be companystrued as taking away from any such person any right of appeal which he may have under the law regulating the companyditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the companyditions of his service prescribed under such law. trict Judge by the Governor by numberification LJJ 94/67/14 dated 28-7-1967 was also declared by the High Court to be void. The High Court, however, held that Rajkhowas simultaneous promotion as Addl. Sessions Judge was valid as that post was number included in the judicial service of the State and the Governor was companypetent to make the appointment. The High Court also held that his further appointment as Sessions Judge was also valid. The High Court, therefore, did number disturb the companyviction and also did number pronounce any opinion on whether the judgments given as District Judge by Rajkhowa were void since that question did number arise on a petition for a writ of quo warranto. The Assam-Judicial Service was companystituted by a numberification of the Government of Assam issued on August 25, 1952. The Senior Branch of the service was known as State Judicial Service Senior and it companysisted of the following posts Senior Grade I Registrar. Legal Remembrancer. District Judges. Senior Grade 11 Additional District Judges. On April 9, 1954, the State Judicial Service Junior was created. Separate rules governed the junior service. The following posts were included Junior Grade I Subordinate Judges. Deputy Registrar. Junior Grade 11 Munsiffs. Assistant Registrar. Rajkhowa was originally a Munsiff in grade 11. The Chief Justice of the High Court appointed him as Deputy Registrar and thus he was promoted to Grade I of the Junior Service. On June 19, 1967 the following numberification was issued No. LJJ.74/66/65-The services of Sri U. N. Rajkhowa, Deputy Registrar, High Court of Assam and Nagaland being replaced at the disposal of the Government. The Governor of Assam in companysultation with the, High Court of Assam and Nagaland, and in exercise of powers companyferred by Article 233 of the Constitution read with Rule 5 ii of the, Assam Judicial Service senior Rules, 1952 is pleased to appoint Sri uppendr a Nath Rajkhowa to officiate as Additional District and Sessions Judge, Lower Assam Districts with Head quarters at Now gong with effect from the date he takes over as Service Sri M. C. Mahajan. Sd. B. Sarma, Secy. to the Government, Law Department. It is this appointment under Article, 233 which is companysidered by the High Court to be void. According to the High Court this was a case of promotion of a person belonging to the judicial service of the State and the High Court was the authority to make, the promotion under Art. In this appeal the view of the High Court is challenged. Chapter VI of Part VI of the, Constitution deals with Subor- dinate Courts. The history of this Chapter and why judicial services came to be provided for separate from other services has been discussed in The State of West Bengal v. Nripendra Nath Bagchi l . This service was provided for separately to make the office of a District Judge companypletely free of executive- companytrol. The Chapter companytains six articles 233 to 237 . We are number companycerned with Art. 237 in the present case. Article 235 vests in the High Court the companytrol over District Courts and Courts subordinate thereto, including the posting and promotion and grant of leave to persons belonging to the judicial service of a State and holding, any post inferior to the post of District Judge. By reason of the definitions given in Art. 236, the expression Judicial Service means a service companysisting exclusively of persons intended to fill the post of District Judge, and other Civil Judicial posts inferior to the District Judge and the, expression District Judge includes among others an additional District Judge and an additional Sessions Judge. The promotion of persons belonging to the judicial service but holding post inferior to a, District Judge vests in the High Court. As the expression District Judge, includes an additional District Judge and an additional Sessions Judge, they rank above those persons whose promotion is vested in the High Court under Art. 235. Therefore, the, promotion of persons to be additional District Judges on additional Sessions Judges is number vested in the High Court. That is the function of the, Governor under Art. 233. This follows from the language, of the, article itself Appointments of persons to be, and the posting and promotion of, district judges in any State shall be 1 1966 1 B.C.R. 771. 5SupCI/70-14 made by, the Governor of the State in companysultation with the High Court exercising jurisdiction in relation to such State. The language seems to have given trouble to the High Court. The High Court holds 1 appointment to be a District Judge is to be made by the Governor in companysultation with the High Court vide Art. 233 and 2 promotion of a District Judge and number promotion to be a District Judge is also to be made by the Governor in companysultation with the High Court vide Art. 233. The High Court gives the example of selection grade posts in the Cadre of District Judges which according to it is a case of promotion of a District Judge. The reading of the article by the High Court is, with respect, companytrary to the grammar and punctuation of the article. The learned Chief Justice seems to think that the expression promotion of governs District Judges ignoring the companyma that follows the word of. The article, if suitably expanded, reads as under Appointments of persons to be, and the posting and promotion of persons to be , District Judges etc. It means that appointment as well as promotion of persons to be District Judges is a matter for the Governor in companysultation with the High Court and the expression District Judge includes an additional District Judge and an additional Sessions Judge. It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary. The article is intended to take care of both. It companycerns initial appoint- ment and initial promotion of persons to be either District Judges or any of the categories included in it. Further promotion of District Judges is a matter of companytrol of the High Court. What is said of District Judges here applies equally to additional District Judges and Additional Sessions Judges. Therefore when the Governor appointed Rajkhowa an Additional District Judge, it companyld either be an appointment or a promotion under Art. 233. If it was an appointment it was clearly a matter under Art. 233. If the numberification be treated as promotion of Rajkhowa from the junior service to the senior service it was a promotion of a person to be a District Judge which expression, as shown above, includes an Additional. District Judge. In our opinion it was the latter. Thus there is numberdoubt that the appointment of Rajkhowa as Additional District Judge by the Governor was a promotion and was made under Art. 233. It companyld number be made under Art. 235 which deals with posts subordinate to a District Judge including an additional District Judge and an additional Sessions Judge. The High Court was in error in holding that the appointment of Rajkhowa to the position of an Additional District Judge was invalid because the order was made by the Governor instead of the High Court. The appointment or promotion was perfectly valid and according to the Constitution. This brings us to the next point in the case which arises as a side issue involving the Legal Secretary, who is also an appellant here. The Civil Courts Act was amended by the Assam Legislature by Act XII of 1967 which came into force on 16th August, 1967. The designation of subordinate judge was altered to Assistant District Judge. On August 17, 1967 new rules for the Assam Judicial Services were brought into force. The Judicial Service was reconstituted as follows Grade I. District and Sessions Judge. Registrar. Presiding Officer, Industrial Tribunal. Presiding Officer, Labour Court. Grade II. Additional District Magistrate. Assistant District Judge. Deputy Registrar. Grade III. Munsiff. Judicial Magistrate. Sub-Divisional Magistrate Judicial . Assistant Registrar. The High Court was of opinion that this was deliberately done to grab at the power of promoting subordinate judges by taking advantage of the definition of District Judge which includes an Assistant District Judge. By this device, which the High Court described as a fraud upon the Constitution the power of promotion vested in the High Court in respect to persons belonging to the Judicial Service of a State and holding posts inferior to the post of the District Judge the jurisdiction of the High Court under Art. 235 was taken away. Formerly, the subordinate service was companyposed of two grades and promotion between the two grades Was made by the High companyrt Under the new rules there is only one grade i.e. grade III in which Art. 235 can operate if at all. Since all the posts there are equal and carry equal pay there is numberscope for promotion at all. The High Court is thus right that there is numberscope for the of the power of the High Court to make promotions in the case of persons below the rank of District Judges Which term includes an Assistant District Judge . The High Court was thus far right-but the High Court is number right in thinking that it can ignore the hierarchy of companyrts in Assam as established by law and treat the change as of numberconsequence. The remedy is number to go against the Civil Courts Act as amended, but to have the amendment rescinded. We are of the view that the change is likely to lead to an impairment of the independence of the judiciary ,at the lowest levels, whose promotion which was, vested by the Con- stitution in the High Court advisedly, will numberlonger be entirely in ,the hands of the High Court. The remedy for it is by amendment ,of the law to the former position. We may say that we do number approve of the change of more nine without,any additional benefits. The High Court was unnecessarily hard upon the Legal Secre- tary. It is proved that this amendment was first thought of several years ago when there was some other Legal Secretary. It is also established that the amendment was intended to bring in the numberenclature existing in some other States without reprising what effect it would have upon the operation of Art. 235 in the State. The remarks of the Chief Justice against the Legal Secretary were unmerited. For these reasons we allow the appeal and set aside the writ of quo warranto issued by the High Court, but in the circum- stances of the case we make numberorder about companyts.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2020 of 1966. Appeal from the Judgment and decree dated July 13, 1960 of the Kerala High Court in Appeal Suit No. 251 of 1956 E . S. Desai and R. Gopalakrishnan, for the appellant. T. Desai, C. H. Subramanya Iyer and S. Balakrishnan, for respondent No. 5. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate from the judgment of the High Court of Kerala dated July 13, 1960 in Appeal Suit No. 251 of 1956. By its judgment the High Court allowed the appeal of the deceased M. R. Chinnaswamy Goundan, 1st defendant, reversing the judgment and decree of the Subordinate Judge of Chittur in O.S. No. 131 of 1950 which the appellant had filed on March 31, 1949 in forma pauperis for declaring that certain execution proceedings resulting in the sale of suit properties were invalid and for partition of one-fourth share therein. The appellant also claimed in the alternative a decree for payment of Rs. 30,000/- as damages sustained by him on account of fraud and companylusion in the execution proceedings. The plaintiff is the son of the 8th defendant and the 9th defendant is the brother of the 8th defendant. The plaintiff and defendants 8 and 9 are Tamil Vannian Christians of Chittur Taluk who are governed in the matter of inheritance and succession by Hindu Mithakshara law. The plaintiff has acquired a right by birth in the ancestral properties and during the life-time of his father the son has a right to claim partition. The plaint properties belonged to the family of plaintiff and defendants 8 and 9 which yield an annual profits of 4000 paras of paddy and Rs. 1,5001-. After the death of his father Kanakappa Koundan, the 8th defendant became the manager of the family. He led an immoral life and incurred debts for immoral purposes. He hypothecated the family properties to the 5th defendant and obtained money. The 5th defendant sued upon the mortgage bond in O.S. No. 75 of 1107 M.E. of the Trichur District Court and impeaching the validity of the debts, the 9th defendant who was a minor at that time filed a suit for partition of his half share in O.S. 65 of 1107 M.E. in the same District Court. During the pendency of the two suits the 5th defendant applied for the appointment of a receiver and the Court appointed the 7th defendant, a friend of the 5th defendant, as receiver with a direction to pay Rs. 40/- per mensem to the 9th defendant as maintenance till the disposal of the suit. The plaint properties were companymitted to the possession of the 7th defendant as receiver in those suits. The suit for partition was dismissed on November 14, 1933 as by this date the equity of redemption had been sold in execution of simple money decree against defendants 8 and 9 in O.S. 203 of 1107 M.E . The 8th defendant for himself and as guardian of his younger brother executed a promissory numbere on 11.10.1105 equivalent to May 1930 to one Somasundara Swamiyar for Rs. 1,500 the companysideration for which was paid partly in cash and partly in discharge of an earlier promissory numbere dated 11th Vaisakhi 1104 June, 1929 . The promisee endorsed the numbere to Ramachandra lyer on 24th Thulam 1107 equivalent to November, 1932 . Ramachandra lyer filed a suit on this numbere, O.S. 213 of 1107 on 6.5.1107 1931 against the 8th and 9th defendants. The suit was decreed and the decreeholder executed the decree. The disputed properties were attached. The properties at that time were in the possession of the 9th defendant for sometime as receiver and then in the hands of a vakil appointed by the Court in his place. In execution, one Harihara Subramania lyer purchased the equity of redemption on 31st Karkata in 1108 July- August, 1933 . The auctionpurchaser was duly put in possession on 22.3.1109 1933 . The, mortgagee Sadasiva lyer who had obtained a decree on one of the mortgages on 29-3-1109 M.E , purchased the property from the auction purchaser on 5-5-1109 1934 . As possession had already been taken by the auction purchaser in execution of the decree passed against them, the 9th defendant did number press the partition suit O.S. 65 of 1107. In 1938 Sadasiva lyer was adjudged insolvent and the official receiver took possession. He sold the property in auction and the deceased 1st defendant became the purchaser for Rs. 24,000. Exhibit XIV is the sale deed executed by the Official Receiver on 13-7-1116 1941 . The appellant thereafter brought the present suit for partition. The claim of the appellant was based on the allegation that Vannia Tamil Christians living in Chittur Taluk were governed as a matter of custom by the Mitakshara School of Hindu law. It was said that joint family relationship subsisted as between father and sons and where the father has inherited properties from his father, they became ancestral properties in his hands and so his sons acquired a right therein by birth including the right to claim the property by survivorship. It was also said that the decree debt in O.S. No. 213 of 1107 ME was number incurred for legal necessity but was incurred for immoral purposes and so the mortgage debts were number binding on the appellant. The appellant was, therefore, entitled to one-fourth share in the properties and to partition of his one-fourth share. The deceased, 1st defendant, companytested the suit. He claimed to be a bona fide purchaser for value of the entire interest in the property from the Official Receiver in whom the properties had vested on the insolvency of Sadasiva lyer. It was said that he had numbernotice of any vgitiating circumstance affecting the title at public auction companyducted by the Official Receiver. After the sale, defendant number 1 became the absolute owner of the properties and was in full possession and enjoyment of the same. It was also companytended that the plaintiff companyld number claim any interest in the properties during the life-time of his father. There was numbercustomary right of birth in the companymunity to which the plaintiff belonged and even if such right existed the plaintiff was bound to pay off his fathers debts on the doctrine of pious obligation before claiming any partition in respect of the properties. It was also said that the debt which Was the basis of the decree in S. 213 of 1107 ME was number tainted by illegality or immorality. The Subordinate Judge came to the following findings The plaintiff has established the custom that Vanniya Tamil ,Christians of Chittur Taluk were governed in the matter of inheritance and succession by Hindu Mitakshara law. The plaintiff has acquired right by birth in the ancestral properties and was entitled to claim a share therein and the properties acquired with the aid of income from ancestral properties also became joint family properties. The Manager of the family for the time being cannot alienate the properties except for legal necessity but the doctrine of pious obligation imposing a liability on the son to discharge his fathers debts number incurred either for illegal or immoral purposes did number apply to the companymunity to which the plaintiff belonged. The decree made on the promissory numbere by defendant number 8 companyld number be executed against the plaintiffs share because the right of an endorsee of a promissory numbere executed by the managing member of a joint Hindu family was limited to the numbere unless the endorsement was so worded as to transfer the debt as well. In the present case there was an ordinary endorsement and there was numbertransfer of the debt and, therefore, the endorsee cannot sue the number-executingcoparcener on the ground of his liability under the Hindu law.Exhibit F on which the decree was obtained was for immoralpurposes and thedecree cannot bind the plaintiff and his share in the disputed properties cannot pass in execution sale. The mortgage decreeholder companytrived to get the assignment of the promissory numbere debt and had a suit brought on it, brought the properties to sale and got the properties purchased for his own benefit. The execution. proceedings were companylusive and fraudulent and number binding on the plaintiff. On these findings the Subordinate Judge granted a decree for partition and recovery of possession in favour of the plaintiff subject to the mortgages on the property created before his birth. Aggrieved by the decree of the Subordinate Judge the 1st defendant preferred an appeal to the High Court of Kerala which allowed the appeal and dismissed the suit. The High Court held that the Vanniva Tamil Christians of Chittur Taluk are governed by the Mitakshara School of Hindu law in regard to inheritance and succession. The son of a member of auch companymunity gets by birth an interest in ancestral property owned by the father. The doctrine of pious obligation applies and the son is bound to discharge his fathers debts number tainted by illegality or immorality. The debt which resulted in the execution sale was number so tainted. The question whether the debt was incurred for legal necessity was number decided. The High Court held that the execution proceedings and the sale in auction are number vitiated by fraud or companylusion. The first question to be companysidered in this appeal is whether the doctrine of pious obligation according to the Mitakshara school of Hindu law is applicable to Vanniya Tamil Christians Sup CI-11 of Chittur Taluk. In para I of the plaint the law applicable to the companymunity is stated as follows The plaintiff and defendants 8 and 9 are Tamil Christians residing in Chittur Taluk, the plaintiff being the son of the 8th defendant and defendant 9 being the younger brother of the 8th defendant. The plaintiff and defendants 8 and 9 are of the Vanniya Caste and in the matter of property r ights of inheritance and succession alone they are governed by the Hindu Mitakshara Law. The plaintiff by birth is entitled to a share in the ancestral property and that even during the lifetime of his father the son has every right to demand his share in the ancestral property and recover the same even by a suit. In the companymunity to which the plaintiff belongs the properties of a man became on his death ancestral properties in the hands of the sons and thereafter it companytinues for ever to be family ancestral property and therein the son has by his birth a right to a share, even during the life time of the father. This custom is a very ancient one and is adopted as the law from time immemorial, and governs the companymunity. The above is the customary law of the plaintiffs companymunity accepted and followed by them from ancient times. In 4 Select Decisions 485 the Chief Court of Cochin held that the Tamil Vanniya Christians of Chittur Taluk were govemed by the rules of Hindu law in matters of inheritance and succession. The decision was followed some 35 years later in 34 Cochin 881. The report of the Cochin Christian Succession Bill Committee stated that as to the Tamil Christians of the Chittur Taluk, the evidence shows that they follow the Hindu law of succession and inheritance and recommended that they should be excluded from the proposed legislation. The recommendation was accepted by the Maharajah of Cochin. Section 2 2 of the Cochin Christian Succession Act VI of 1097 provided that numberhing therein companytained shall be deemed to affect succession to the property of the Tamil Christians of Chittur Taluk who follow the Hindu Law. In this state of facts it was number companytended on behalf of the appellant that the Tamil Vannia Christians of the Chitture Taluk were number governed by the Mitakishra law in matter of inheritance and succession. But it was argued that the doctrine of pious obligation originated in Hindu religious belief and was opposed to the tenets of Christianity. It was said that the doctrine was number applicable to Tamil Vannia Christians of Chittur Taluk. We are unable to accept this argument. It is number a companyrect proposition to state that the doctrine of pious obligation is of religious character or is inextricably companynected with Hindu religious belief. It is true that according to Smriti writers the number-payment of a debt was a sin the companysequences of which will follow the debtor into the next world. But the doctrine as developed by the Judicial Committee in Girdharilals case 1 Surajbansis case 2 and Brij Narain v. Mangal Prasad 3 was different in several important respects. Under the Smiriti texts there was only a religious and number a legal obligation imposed upon the sons to pay the debt of their father. Also the obligation of the son to pay the debt arose number in the fathers lifetime but after his death. The text of Narada says that fathers desire male offspring for their own sake reflecting this son will redeem me from every debt due to superior and inferior beings. Therefore, a son begotten by him should relinquish his own property and assiduously redeem his father from debt lest he fall into a region of torment. If a devout man or one who maintained a sacrificial fire die a debtor, all the merit of his devout austerities or of his perpetual fire shall belong to his creditors. I Dig. Higg. Edition 202. The text of Vishnu states If he who companytracted the debt should die, or become a religious anchoret, or remain abroad for twenty years, that debt shall be discharged by his sons or grandsons but number by remoter descendants against their will I Dig. Higg. Edition 185 . Brihaspati also states the sons must pay the debt of their father, when proved, as if it were their own, or with interest. the sons son must pay the debt of his grandfather but without interest and his son or the great grandson shall number be companypelled to discharge it unless he be heir and have assets. But the Judicial Committee held in the Sivagiri case 4 that the obligation of the son was number a religious but a legal obligation and the rule would operate number only after the fathers death but even in the fathers lifetime. Under the old texts of Hindu law only the son and grandson are liable to pay the ancestors debt but the obligation is personal and independent of any assets derived from the joint family. The Judicial Committee, however, extended the doctrine to the great grandson but companyfined the liability to the extent of companyarcenary property. From the sons duty to pay his fathers untainted debt the Judicial Committee deduced the proposition that the father had the right to alienate his sons interest to pay such a debt and this right was also made available to the creditor of the father. It is evident therefore that the doctrine of pious obligation is number merely a religious doctrine but has passed into the realm of law. The doctrine is a necessary and logical companyollary to the doctrine of the right of the son by birth to a share of the ancestral property and both these companyceptions are companyrelated. The liability imposed on the son to pay the debt of his father is number a Gratuitous 1 1. A. 321. 3 51 I. A. 129. 2 61. A. 88. 4 91. A. 128. obligation thrust on him by Hindu law but is a salutary companynterbalance to the principle that the son from the moment of his birth acquires along with his father an interest in joint family property. It is, therefore, number possible to accept the argument addressed on behalf of the appellant that though the companymunity is governed as a matter of custom by the Mitakshara School of Hindu law the doctrine of pious obligation was number applicable. In Balkrishnan V. Chittoor Bank 1 the question arose whether among the Ezhava companymunity of Palghat though they follow Makatayam Law and number Marumakatayam Law, the sons are liable for the debts of their father number incurred for illegal or immoral purposes irrespective of any question of family necessity. It was held by Varadachariar J., that the sons were so liable and it was observed that there was numberwarrant for introducing one portion of the Hindu law in governing a certain companymunity without taking along with it the other portions which form an integral part of the whole system. In this companynection reference may be made to the following passage the judgment of the Judicial Committee in Abraham v. Abraham 1 The profession of Christianity releases the companyvert from the trammels of the Hindoo law, but it does number ,of necessity involve any change of the rights or relations of the companyvert in matters with which Christianity has numberconcern, such as his rights and interests in, and his powers over, property. The companyvert though number bound as to such matters, either by the Hindu law or by any other positive law, may by his companyrse of companyduct after his companyversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to a class which as to these matters had adopted and acted upon some particular law, or by having himself observed some family usage or custom and numberhing can surely be more just than that the rights and interests in his property, and his powers over it, should be governed by the law which lie has adopted, or the rules which he has observed. For the reasons already given we are of opinion that the doctrine of pious obligation is number merely a religious doctrine but has passed into the realm of law. It is an integral part of the Mitakshara School of Hindi,. law wherein the sons from the moment of their birth acquire along with their father an interest in the joint family property. The doctrine is in companysonance with justice, equity and good companyscience and is number opposed to any principle of Christianity It follows that the High Court is right in its companyclusion that the doctrine of pious obligation is applicable to the companymunity of Tamil Vanniya Christians of Chittur Taluk. A. I. R. 1936 Mad. 937. 2 9 M. I. A. 199, The next question to be companysidered is whether the liability of the son was excluded because at its inception the debt was tainted by immorality. The evidence adduced on behalf of the plaintiff to establish the immoral character of the debt companysists of the testimony of P.Ws 19 and 20. P.W. 19 deposed that the plaintiff s father was keeping a married woman called Thankammal., that Thakammal was residing opposite to his house at Alambadi with her husband, that he had seen the plaintiffs father frequenting her house, that plaintiffs father executed a promissory numbere in favour of Somasundara Swamiyar, payee under Ex. F and out of the companysideration a sum of Rs. 1,000/- was paid to Thankammal. W. 20 gave evidence to a similar effect. P.Ws. 19 and 20 are number ,he attesting witnesses of the promissory numberes. They were mentioned the plaintiff for the first time in the supplemental list of witnesses dated 12-11-1954. The High Court has disbelieved the evidence of P.Ws 19 and 20 and held that the allegation of the appellant that the debt was tainted by immorality was number established. We see numberreason to differ from the view taken by the High Court on this point. We proceed to companysider the next question arising in this appeal, that is, whether the endorsee of the promissory numbere is entitled to obtain a decree against the defendants personally and for sale of the family properties upon the original debt. The companytention of the appellant was that the 4th defendant was number the payee under Ex. F but was an endorsee of the promissory numbere and was number hence entitled to obtain a decree against the number-executant companyarceners and to proceed against the joint family properties. In support of this proposition reliance was placed upon a decision of the Full Bench of the Madras High Court in Maruthamuthu Naicker v. Kadir Badsha Rowther 1 in which it was held that an indorse of a promissory numbere executed by the managing member of a Hindu family was limited to his remedy on the promissory numbere, unless the endorsement was so worded as to transfer the debt as well and the stamp law was companyplied with and, therefoere in the case of an ordinary endorsement , the indorsee cannot sue the number-executant companyarcerners on the ground of their liability under the Hindu law. Where the indorsement is in blank it only ope- rates to transfer the property in the instruement and number as an assignment of debt. It is number however necessary for us to examine this argument. The reason is that the endorsement in the present case made by the 8th defendant in favour of the 9th defendant is number a mere endorsement but it has been so worded as to transfer the debt also. The indorsement reads as follows As the principal and interest as per this proiiiissorv numbere is, received in cash todav to my satisfac- A.I.R. 1938, MaD. 377. tion from,Ramchandra lyer, son of Subbarama lyer, Thekkegramam, Chittur, the above principal and interest together with the future interest thereon is to be paid to the above Ramehandra lyer or to his Order. Dated 24th Thulam 1107 Somasundara Swamiyar. It is apparent that the endorsement is so worded as to companyvey the transfer of the debt as well and it follows that Ramchandra lyer, defendant number 4 was entitled to bring a suit against the number-executant companyarceners on the round of their liability under the Hindu law. We accordingly reject the argument of the appellant on this aspect of the case. Finally companynsel on behalf of the appellant companytended that the sale in execution proceedings in O.S. 213 of 1107 ME was vitiated by fraud. The Subordinate Judge took the view that defendants 4 to 7 had companymitted fraud and the decree in execution in O.S. 21 1 of II 07 ME was void and liable to be set aside. But the High Court has upon a review of the facts found that the 4th defendant and 6th defendant and W. 23 Srilala Iyer had actively assisted the 5th defendant to get possession of the property as quickly as possible but there was numberproof that defendants 4 to 7 either companylectively or individually transgressed the limits of law or were gulity of fraud. Upon the evidence adduced in the case we are satisfied that the finding of the High Court is companyrect. For these reasons we hold that this appeal fails and must be dismissed with companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1256 of 1968. Appeal by special leave from the order dated March 25, 1968 of the Punjab and Haryana High Court in Letters Patent Appeal No. 168 of 1968. L. Sibal, B. N. Khanna, S. Harbans Singh, B. Datta, D. Mishra and J. B. Dadachanji, for the appellant. Niren De, Attorney-General, V. C. Mahajan and R. N. Sach- they, for the respondents. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an order dated March 25, 1968 of the High Court of Punjab and Haryana at Chandigarh passed in Letters Patent Appeal No. 168 of 1968 where by the High Court dismissed in limine the said appeal filed by the appellant against the order of March 18, 1968 of a single Judge of the said companyrt in Civil Writ No. 39 of 1968. The appellant, the petitioner before the High Court, prayed for quashing of two orders of the Excise and Taxation Commissioner dated 18th December 1967 and 28th December, 1967. The facts giving rise to the Writ Petition are as follows. The appellant-company runs a distillery at Karnal and was engaged. in the manufacture of liquor from molasses under a licence in form D 2 granted under section 21 of the Punjab Excise Act, 1914 by the Financial Commissioner of the State. The said licence was granted on certain companyditions incorporated therein the relevant ones being The licensee shall observe the provisions of the Punjab Excise Act 1 of 1914 and of all rules thereunder, . . . . He shall companyply With all directions of the Financial Commissioner regarding the character or purity of the liquor to be manufactured, the stock of spirit or material to be maintained, and all other matters in which companypliance is prescribed by rules made under the Punjab Excise Act, 1 of 1914. If the licensee infringes or causes or permits any person to infringe any of the companyditions of this licence, the Financial Commissioner may forthwith revoke and determine the licence and forfeit to Government the whole or any part of any deposit made by the licensee under rule 4 a of the Distillery Rules . . . . The licensee shall pay regularly and by due date all payments which may become due to Government and in default thereof the Financial Commissioner may forfeit to Government the whole or any part of any security furnished by him under rule 6 of the rules By a letter dated April 11, 1962 the Excise and Taxation Commissioner of the State hereinafter referred to as the Commissioner directed the appellant to increase the companyered storage capacity of molasses by about 15 per cent. The appellant represented that there was numberspace available in the distillery for the purpose whereupon the Commissioner required the appellant to companyer the existing storage tanks. The Commissioner gave a direction to the appellant that it should at least arrange to companyer its uncovered molasses tank of the capacity of 30,000 maunds by October 31, 1962. By a letter dated February 4, 1963 the appellant was further informed that in case of their failure to companyply with the above requirement the department would have numberoption but to proceeding against them under companydition 5 of the distillery licence. By letter dated February 9, 1963 the appellant desired to have a discussion of the matter with the Commissioner. Thereafter more than one date was fixed by the Commissioner for the purpose but it appears that the dates fixed were Pot suitable to the representatives of the appellant. The last meeting fixed was for the April 19, 1963. The appellant wanted to change the date to April 21, 1963 which was number suitable to the Commissioner. Taking the view that the appellant wanted to side-track the issue the Commissioner made an order on June 5, 1963 , the relevant portion of which reads as follows - They the appellant are thus guilty of violation of companydition No. 5 of Distillery Licence held by them in form D-2. The management of the distillery have thus rendered their licence in form D-2 granted in favour of the karnal Distillery Co. Ltd., Karnal, liable to cancellation or suspension under sec. 36 c of the Punjab Excise Act 1 of 1914 . However, instead of cancelling the licence, 1, in exercise of powers under sec- tion 80 2 of the Act ibid, hereby impose a penalty of Rs. 5001- on the management of the said distillery. The amount of penalty should be deposited by the management in the Government Treasury, Karnal, within a fortnight of the receipt of this order failing which action for cancellation of Distillery licence will be taken under S. 36 c idid. The appellant filed a Writ Petition No. 315 of 1964 in the High Court for quashing of the said order inter alia on the round that numbersufficient opportunity was given to it to represent its case before the making of the said order and that the Commissioner had numberpower to direct the appellant to companyer its uncovered storage tank. Both these companytentions were turned down by a Division Bench of the High Court but the learned Judge upheld the appellants companytention that the Commissioner was number entitled to recover the amount of penalty as arrears of land revenue observing in this companynection that It would thus follow from the order that in case the amount of penalty was number deposited within the prescribed time, the only action, which would be taken by the authority companycerned, was the cancellation of the distillery licence. In the result although the Writ Petition was dismissed the High Court quashed the proceedings which were being taken by the excise authorities for recovery of the amount of penalty is arrears of land revenue. The order of the High Court was passed on 20th August, 1964. The Commissioner followed this up by a numberice dated October 16, 1964. After referring to the earlier order of June 5, 1963 and the above order of the High Court the Commissioner stated Since you have number paid the amount of penalty within the period fixed your licence has to be cancelled in terms of the above cited order of the Excise and Taxation Commissioner. In case you have anything to say regarding the above action you may submit your representation in writing within seven days of the receipt of this numberice. The appellant replied by letter dated October 23, 1964 taking exception to the proposed action and companyplaining that the numberice to cancel the appellants licence for the trivial amount of Rs. 500/was mala fide and made out of personal animosity of the Financial Commissioner. It was further stated that the appellant was arranging to file an appeal in the Supreme Court against the order of the High Court of Punjab dated 20th August 1964 and a request was made to the Commissioner to stay his hands pending disposal of the same. The appellant enclosed a cheque for Rs. 5001- with the reply without prejudice to its rights. Nothing appears to have been done by the Commissioner for a long time thereafter. The cheque was number uncashed but sent back to the appellant on July 13, 1965. Another cheque for the amount was sent to the Commissioner in December 1966 which too was number encashed. Apparently the Commissioner stayed his hands because of the pendency of the application for leave to appeal to this Court which was ultimately rejected. He gave a hearing to the appellant on June 5, 1967 whereafter the matter was adjourned from time to time. After hearing the parties finally on December 5, 1967 he passed an order cancelling the distillery licence turning down the companytentions urged on behalf of the appellant. The appellant made another representation to the Commissioner on December 27, 1967 and this was rejected by an order dated December 28, 1967. Both these orders show that the Commissioner took the view that the period of 15 days mentioned in the order of June 5, 1963 was a term of the order and failure to companyply strictly therewith entailed the penal companysequences directly flowing therefrom. The Commissioner was also of the view that the department companyld number insist upon recovering the penalty and the only companyrse open was to companysider whether or number the licence required to be cancelled. As the appellant was found to have failed to carry out the directions given under the Excise Act and the rules, the only companyrse open was to cancel the licence. Mr. Sibbal learned advocate for the appellant raised various companytentions to show that the stand taken by the department was number justified and that the licence of the appellant companyld number be cancelled in the manner it was sought to be done. In our view, it is number necessary to deal with all the companytentions raised. Under s. 20 2 of the punjab Excise Act, 1914 numberdistillery or brewery can be companystructed or worked except under the authority ,and subject to the terms and companyditions of a licence granted in that behalf by the Financial Commissioner under S. 21. Under the latter section the Financial Commissioner, subject to such restrictions and companyditions as the State Government may impose, may make rules regarding the granting of licence for distilleries, stills or breweries, the security to be deposited by the licensee of a distillery or brewery etc. Section 36 provides that Subject to such restrictions as the State Government may prescribe, the authority granting any licence, permit or pass under this Act may cancel or suspend it a and b c in the event of any breach by the holder of such licence, permit or pass or by his servants, or by any one acting on his behalf with his express or implied permission, of any, of the terms or companyditions of such licence, permit or pass Section 80 1 gives the Collector the power to accept from any person reasonably suspected of having companymitted an offence punishable under s. 65 or s. 68 of the Act a sum of money by way of companyposition for such offence. Sub- s. 2 of the section lays down The cancellation or suspension of any licence, permit or pass under section 36 a , b or c of this Act may beforegone or revoked by and at the sole discretion of the authority having power to cancel or suspend it on payment by the holder of such licence, permit or pass of such penalty as such authority may fix. The Commissioner promulgated rules known as The Punjab Distillery Rules, 1932 under S. 59 of the Act. Rule 5 thereof shows that the licence to run a distillery must be in form D- Rule 37 lays down that The licensee shall have always in stock in a gur, molasses or mahua store to be provided by him and approved by the Financial Commissioner, a quantity of gur, molasses or mahua sufficient for the preparation of wash for the full working of all his stills, calculated upon the data set forth. . . . Assuming that this rule permitted the Commissioner to give a direction for increasing the companyered storage capacity of molasses or to companyer its uncovered molasses tank any violation of that direction companyld be met with an order for cancellation or suspension of the licence under s. 36 of the Act. Having- passed such an order of cancellation or suspension it would be open to the Commissioner or the authority companycerned to impose a penalty for the infraction companyplained of and give the distillery a numberice to the effect that the suspension or the cancellation would be revoked or foregone if the penalty was paid. The word revocation is only apposite when it is intended to repeal, annul or withdraw some order which has already become effective, To forego according to Shorter Oxford Dictionary means to go past to neglect, slight, to let go, give up etc. Fore going cancellation or suspension therefore would mean giving up or undoing ii-he effect of cancellation. In our opinion s 80 2 does number authorise the Commissioner to make a companyditional order in form in which he purported to do by his order of June 5, 1963. there was numbercancellation of licence by that order. The Commissioner merely intimated the appellant that its licence had become liable to cancellation or suspension but instead of cancelling the licence he was imposing a penalty of Rs. 500/- to be paid within a fortnight failing which action for cancellation would be taken under S. 36 c . The Commissioners show cause numberice dated October 16, 1964 proceeds on the basis that, as the penalty had number been laid within e period fixed, the licence had to be cancelled in terms of the order of June 5, 1963. Section 36 of the Act does number permit the taking of such a companyrse. The grounds for cancellation or suspension of the licence are specified in sub-cls. a to g of the section and default in payment of penalty levied under the Act does number find a place therein. The imposition of a penalty by way of threat of cancellation of licence was also number permissible under the Act. No doubt in his orders of December 18, 1967 and December 28, 1967 the Commissioner had relied on the fact that the appellant had failed to companyply with the direction to companyer the uncovered molasses storage tank. But this default was number the subject matter of the show cause numberice. If the Commissioner had issued a numberice to the effect that in spite of opportunities given to the appellant numberattempt had been made to companyer the storage tank and that the same called for a cancellation of the licence, there might be justification for the companyrse taken. In our view the Commissioner was number entitled to cancel the licence because of the default in the payment of penalty. The learned Attorney General companytended that tinder s. 80 of the Act it was number obligatory on the Commissioner first to pass an order of cancellation of licence for breach of any of its company- L5Sup CI NP /70-10 ditions and then revoke it on payment of a penalty. According to him the section permitted the making of an order directing payment of fine in lieu of cancellation and making the cancellation effective in default of payment of fine. We do number think the section bears that interpretation. In the result we hold that the orders of cancellation of the licence dated December 18, 1967 and December 28, 1967 were number authorised by law.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2203 of 1966. Appeal by special leave from the judgment and order dated November 8, 1965 of the Judicial Commissioners Court, Tripura in Writ Petition No. 27 of 1961. K. Ramamurthi and Shyamala Pappu, for the appellant. A Seyid Muhammad, S. P. Nayar and B. D. Sharma, for the,respondents. The Judgment of the Court was delivered by Shah, J. The appellant joined the Tripura Civil Service on October 30, 1949, and was posted as a probationer Divisional Purchasing Officer, Dharmnagar. In 1953 the Tripura Civil Service was split into two cadres-senior officers being absorbed as Sub-Divisional Officers and junior officers as Sub-Treasury Officers. The appellant was absorbed as Sub- Treasury Officer with effect from April 1, 1950. On May 10, 1954, the appellant was appointed officiating Sub-Divisional Officer with effect from September 10, 1953. By order dated May 12, 1954, the appellant was reverted to the post of Sub- Treasury Officer with effect from May 6, 1954. The appellant made several representations to the Chief Commissioner but without success. The appellant was suspended by order dated May 6, 1957, for failure to obey the orders of the Additional District Magistrate and he was dismissed with effect from July 3, 1958, by the order of the Chief Commissioner. The appellant moved a petition in the Court of the Judicial Commissioner at Tripura challenging the orders of suspension and dismissal. On February 19, 1960 the Court set aside the impugned orders. By order dated November 7, 1960 the Chief Commissioner reinstated the appellant to the post of Superintendent of Surveys and by the same order reverted him to his substantive post of Sub-Treasury Officer with retrospective effect, from June 7, 1957. The appeal of the appellant to the President having been rejected, he moved a petition in the Court of the Judicial Commissioner for a writ quashing the orders dated May 12, 1954 and November 7, 1960. The appellant companytended that in order of reversion cannot be made to have retrospective operation. The petition insofar as it relates to the first order was belated. Again there is numberground for holding that retrospective operation was in fact given to that order of reversion. By the order dated May 12, 1954 the appellant was reverted to the post of SubTreasury Officer, but the order did number state the date from which the order was to be effective. In summarising the averments made in the petition, the Judicial Commissioner stated that the petitioner had alleged that the order dated May 12, 1954, was to have effect from May 6, 1954. A companyy of that petition is number filed in this Court and we are unable to accept, especially having regard to the terms of the order, that any retrospective operation was sought to be given. In any event the Judicial Commissioner was justified in refusing to entertain any companytention as to the validity of the order of reversion made nearly seven years before the date on which the petition was filed, The second order dated November 7, 1960, passed by the Chief Commissioner companysists of two parts- i that the appellant be reinstated in the post of the Superintendent of Surveys with effect from the afternoon of May 7, 1957 and ii that the appellant be reverted to the substantive post of Sub- Treasury Officer with retrospective effect from June 7, 1957. The appellant, as already stated, was suspended on May 6, 1957. The order of suspension and the order of dismissal which followed it were set aside by the Judicial Commissioner, and the Chief Commissioner therefore reinstated the appellant with effect from the afternoon of May 7, 1957 to the post occupied by the appellant on the date on which he was suspended. But the appellant was number holding the post of Superintendent of Surveys substantively he was merely officiating in that post. He was therefore reverted with effect from June 7, 1957 to his substantive post. The order was passed because the post was filled by another officer approved by the U.P.S.C. Counsel for the appellant relied upon the observations made by S. R. Das, C.J., in Parshotam Lal Dhingra v. Union of India 1 But the mere fact that the servant has numbertitle to the post or the rank and the Government has, by companytract, express or implied, or under the rules, the right to reduce him to a lower post does number mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is number by way of punishment is to find out if the order for the reduction also visits the servant with any penal companysequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponment of his future chances of promotion. then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the companytract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. These observations. in our judgment, do number assist the appellant. The order reverting the appellant from June 7, 1957, to his substantive post does number entail forfeiture of his pay or allowances or loss of seniority in his substantive rank or stoppage or postponement of his future chances of promotion, 1 1959 S.C.R. 828, 863. Counsel for the appellant urged that whenever a person is reinstated as from the date on which his services were terminated he must be restored to the same office which he was holding at the date of the termination of employment or suspension and must receive salary upto the date of reinstatement which that office carried. We find numberwarrant for the submission. If the appellant had number been suspended, it was open to the Chief Commissioner still to revert him to his substantive post. We see numberreason for holding that the Chief Commissioner companyld number do so when he reinstated the appellant. There is numberground for thinking that the order was made maliciously. The reason for reversion was that since June 7, 1957 another officer was occupying the post of the Superintendent of Surveys. The post having been already filled, the appellant cannot claim that when he was reinstated lie should have been paid emoluments attached to the office of Sub- Divisional Officer on the footing that he companytinued to occupy that office which he was holding in an officiating capacity. The appeal therefore fails and is dismissed. Having regard to the circumstances of the case there will be numberorder as to companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2111 of 1966. Appeal by special leave from the judgment and decree dated July 9, 1965 of the Madhya Pradesh High Court, Indore Bench in Second Appeal No. 254 of 1962. Rameshwar Nath and Mahinder Narain, for the appellant. C. Bhandare, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondents. The Judgment of the Court was delivered by Shah., J. Of Khasra Nos. 33 34 of Maheshwar, District Khargone, Madhya Pradesh, Nathu Prasad-hereinafter called the plaintiff-is the recorded pattedar tenant. On May 20, 1955 he granted a sub-lease of the land, for a period of five years, to Ranchhod Prasad and Onkar Prasad-hereinafter companylectively called the defendants. On June 30, 1960 the plaintiff companymenced an action in the Court of the Civil Judge, Maheshwar against the defendants claiming that the sub-lease being in companytravention of s. 73 of the Madhya Bharat Land Revenue and Tenancy Act 77 of 1950 the defendants were trespassers in the land. The defendants companytended that the lease was valid, and since the plaintiff had received companysideration, he was estopped from setting up the plea of invalidity of the lease. The Trial Court decreed the action, holding that the defendants were tres- passers and companyld number acquire Bhumiswami rights claimed by them. The District Court agreed with the Trial Court. In second appeal the High Court of Madhya Pradesh allowed the appeal and dismissed the plaintiffs action. In the view of the High Court the defendants had acquired rights as occupancy ,tenants under S. 185 1 ii b of the Madhya Pradesh Land Revenue Code. In so holding the High Court relied upon the judgment of the Madhya Pradesh High Court Rao Nihalkaran v. Ramchandra 1 . With special leave, the plaintiff has appealed to this Court. Section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 Act No. 66 of 1950 provides No Pakka tenant shall sub-let for any period whatsoever any land companyprised in his holdings except in the cases provided for in section 74. Explanation Section 74 deals with sub-letting by disabled persons. Since the plaintiff is number a disabled person, the section need number be read. Section 75 provides A sub-lease of the whole or any part of the holding of a Pakka tenant effected properly and legally prior to the companymencement of this Act shall terminate after the expiry of the period of sub-lease or 4 years after the companymencement of this Act, whichever period is less. Section 76 provides. If the sub-lessee does number hand over possession of the land sub-let to him after the sub-lease ceases to be in force under sections 74 and 75 to the lessor or 1 1963 M. P. L. J. 314. his legal heir he shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of this Act. 2 . Section 78 provides Any possession who in companytravention of the provisions of this Act, obtains possession of any land by virtue of a bequest, gift, sale, mortgage or sub-lease, or of any agreement purporting to be a bequest, gift, sale, mortgage or sub-lease shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of section 58. . . . . . . The Madhya Bharat Legislature enacted the Madhya Bharat Ryotwari Sub-lessee Protection Act, 1955 Act 29 of 1955 . The Act came into force on October 19, 1955. The Act was en- acted to provide for stay of proceedings under s. 76 1 for the ejectment of sub-leases of ryotwari land after the termination of sub- leases according to s. 75 of the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007. Ryotwari sub-lessee was defined in cl. b of s. 2 as meaning a person to whom a pakka tenant of any Ryotwari land has sub-let on sub-lease any part of his Ryotwari land. Section 3 of Act 29 of 1955 provides Nothwithstanding anything companytained in section 76 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, during the companytinuance of this Act but subject to the provisions companytained in section 4 below, numberRyotwari sub-lessee other than a sub-lessee under section 74 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, and a sub-lessee deemed to be a trespasser under section 78 of the said Land Revenue and Tenancy Act, shall be ejected from his land. Section 3 clearly grants protection during the companytinuance of the Act to sub-lessees. But sub-lessees under s. 74 of the Madhya Bharat Land Revenue and Tenancy Act and a sub- lessee deemed to be a trespasser under s. 78 of that Act are outside that protection. The Madhya Pradesh Land Revenue Code Act 20 of 1959 was enacted by the State Legislature and was brought into force in the whole of the State of Madhya Pradesh. By that Code. Act 29 of 1955 was repealed. The expression tenant was defined in s. 2 y as meaning a person holding land from a Bhumiswami as an occupancy tenant under Chapter XIV. Section 185, insofar as it is relevant, provides Every person who at the companying into force of this Code holds- In the Madhya Bharat region- a any Inam land as a tenant, or as a sub- tenant or as an ordinary tenant or Explanation b any land as ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari Sub- lessee Protection Act, 1955 29 of 1955 or shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities companyferred or imposed upon an occupancy tenant by or under this Code. By s. 185 of the Madhya Pradesh Land Revenue Code a person who is holding land ,is a ryotwari sub-lessee under Act 29 of 1955 is deemed to be an occupancy tenant and is entitled to all the rights and is subject to all the liabilities companyferred or imposed upon an occupancy tenant by or under the Madhya Pradesh Land Revenue Code. A person inducted as a sub-lessee, but who by express pro- vision companytained in s. 73 read with s. 78 of Act 66 of 1950 is declared a trespasser, does number acquire the status of an occupancy tenant under s. 185 1 ii b of the Madhya Pradesh Land Revenue Code. Act 29 of 1955 companyferred protection only upon a ryotwari sub-lessee, and a ryotwari sub-lessee was defined in that Act as meaning a person in whose favour the land was settled. A person, the lease, in whose favour was declared void by virtue of Act 66 of 1950, companyld number claim the status of a sub-lessee. That is so enacted in s. 3 which excludes from the protection granted by Act 29 of 1955, amongst others, a sub-lessee deemed to be a trespasser under s. 78 of Act 66 of 1950. A person inducted as a sub-lessee companytrary to the provisions of s. 73 of Act 66 of 1950 did number therefore acquire any right under a companytract of sub-letting and his possession was number protected under Act 29 of 1955. Such a person is number a ryotwari sub-lessee as defined in the Madhya Pradesh Ryotwari Sub-lessee Protection Act 29 of 1955, and it is only on Ryotwari sub-lessee as defined in that Act that the right of occupancy tenant is companyferred by s. 185 1 ii b of the Madhya Pradesh Land Revenue Code. Krishnan, J., regarded himself bound by the following observation made by a Division Bench of the Madhya Pradesh High Court in Rao Nihalkarans case 1 1 1963 M.P.L.J. 314. By section 3 of this Act Act 29 of 1955 a bar was created to the ejectment of these sub- lessees whose companytinuance had become precarious under the existing law. The bar was to operate during the companytinuance of that Act which was for a definite duration numberwithstanding anything companytained in section 76 and 78 of the Madhya Bharat Land Revenue and Tenancy Act barring exceptions companytained in section 74 of that Act. The observation that protection was given to sub-lessees, numberwithstanding anything companytained in s. 78 was apparently made through oversight it is companytrary to the express provisions of the Act. The High Court was, in our judgment, in error in holding that the defendants had acquired the status of occupancy tenants by virtue of s. 185 1 ii b of the Madhya Pradesh Land Revenue Code Act 20 of 1959 . The appeal is allowed. The order passed by the High Court is set aside and the decree passed by the District Court is restored. There will be numberorder as to companyts in this Court and in the High Court.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 130 of 1966. Appeal from the judgment and decree dated December 13, 1961 of the Allahabad High Court in Special Appeal No. 217 of 1958. K. Daphtary, B. Sen, J, P, Goyal and A. Banerjee, for the appellants. B. Agarwala and O. P. Rana, for respondents Nos. 1, 2, 3 and 8. A. Ramachandran and R. N. Sachthey, for respondent No. 4. C. Chagla, G. D. Srivastava, B. Datta and J. B. Pada- chanji, for respondents Nos. 5 and 6. The Judgment of the Court was delivered by Shah, J. The Padrauna Rajkrishna Sugar Works Ltd.hereinafter called the Company carried on the business of manufacture and sale of sugar and supply of electricity. The Company was in financial difficulties in 1954 and was unable to meet its obligations. The principal liabilities of the Company in July 1955 were Rs. 81,821-2-0 due as income-tax provisionally assessed for the assessment year 1952-53 in respect of which an order for recovery was made under s. 46 2 of the Income-tax Act, 1922 Rs. 5,64,301-14-9 due as sugarcane cess under s. 29 of the Sugar Factories Control Act, 1938, for the years 1952-53 to, 1954-55 and Rs. 1,92,053-12-3 due by the Company to the Co-operative Development Union Ltd. as arrears of cane price for the year 1954-55. By order dated July 14, 1954, issued under the Essential Supplies Temporary Powers Act, the Government of U.P. appointed the Collector, Deoria as the Authorised Controller of the Company. On August 8, 1955 the Land Reforms Commis- sioner sanctioned the proposal submitted by the Collector, Deoria, to sell the holdings and the property of the Company for realizing Rs. 8,38,176-13-0. Sardar Jagjit Singh, Chief Engineer, Indian Institute of Sugar Technology, Kanpur, valued the movables belonging to the Company i.e. tools and workshop plant, mill stores, spare parts and furniture at Rs. 7 , 64,817/-,and the lands and the factory at Rs. 23,75,000/-. Thereafter a sale proclamation was issued on October 4, 1955, for recovery of the total amount of Rs. 8,38,176-13-0. The sale was fixed for November 8, 1955. In the first instance only the movables were put up for sale by the Collector, Deoria, but the highest bid offered was Rs. 2,75,000/-. The Collector then put up for sale the immov- able property for which a bid of Rs. 13,50,000/-was made and accepted. The movables were then put up for sale, and the highest bid for Rs. 2,75,000/- was accepted. The purchasers of both the lots were the Cawnpore Sugar Works Ltd., through their managing agent Tulsidas Mundra-respondent No. 7 in this appeal. On December 6, 1955, the Company moved an application before the Commissioner, Gorakhpur Division, under r. 285-1 of the P. Zamindari Abolition and Land Reforms Rules praying that the sale be set aside. The Commissioner rejected the peti- tion, observing that an application under r. 285-1 of the P. Zamindari Abolition and Land Reforms Rules, 1952, to set aside a sale on the ground of material irregularity or mistake in publishing or companyducting a sale may be granted only if the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake, and that numbermaterial irregularity or mistake was proved to be companymitted in publishing or companyducting the sale, far less, a mistake or irregularity which companyld have caused substantial injury to the applicant. The sale was companyfirmed by order dated July 2, 1956, by the Land Reforms Commissioner. On, July 30, a petition was moved by the Company in the High Court of Allahabad for a writ in the nature of certiorari quashing the order dated June 25, 1956, of the Commissioner, Gorakhpur Division. The petition was dismissed by Oak, J. In appeal under the Letters Patent the order was companyfirmed by the High Court. Mukherji, J., was of the view that s. 286 of the U.P. Zamindari Abolition and Land Reforms Act did number oblige the Collector to exhaust the processes prescribed by, cls. a to e in s. 279 of that Act before resorting to the sale of immovable property of the Company and that it was number proved that there was any material irregularity or mistake in publishing or companyducting the sale or that any substantial injury had resulted to the Company., Jagadish Sahai, J., was of the view that s. 2861 2 of the U.P. Zamindari Abolition and Land Reforms Act provides that where an amount is recoverable as arrears of land revenue, the Collector has first to attempt under cls. a to e of s.279 to recover the amount due, and if he is unable to recover the amount,, he may proceed to sell the immovable property of the defaulter. But the learned Judge was of the opinion that the provision was merely directory and number. mandatory. He observed the provision relating to the exhaustion of the processes companytemplated by clauses a to e of section 279 of the Act is merely directory. In view of the provisions of the various Acts which make the realization of sums becoming due under those Acts as arrears of land revenue and in view of the provisions of the Act the, Collector has got a duty and a statutory obligation to realise those sums. He has numberdiscretion in the matter. Consequently I read the words may realise the same from the interest of the defaulter in any immovable property in sub- section 1 or may be recovered from any immovable property of the defaulter in sub- section 2 as meaning that if the Collector does number succeed in- recovering the amount by having recourse to the processes mentioned in clauses a to e of section 279 of the Act he shall sell immovable property of the defaulter. The learned Judge also observed that the Collector acted inviolation of the statutory provision companytained in s. 286 2 of the Act in selling the immovable property before selling the movable property, but the sale companyld number be set aside, because substantial injury was number shown to have been caused. The Company has appealed to this Court against the order passed by the High Court companyfirming the order passed by Oak, J. In this appeal, it is urged in the first instance, that the Company possessed stocks of sugar of value exceeding the liability for payment of Rs. 8,38,000/- odd. But the stocks of sugar were number mentioned in the Collectors report to the Land Reforms Commissioner they were number included in the sale proclamation as property put up for sale, number were they valued in the report of Sardar Jagjit Singh. The Company asserted in the petition ,before the High Court that it possessed stocks of sugar worth Rs. 9 lakhs. which had number been, attached earlier, but numbersuch. companytention was advanced in support of the application for setting. aside the sale before the Commissioner, number was any argument advanced before the High Court. It appears that the stocks of sugar were mortgaged separately and the amount for which they were mortgaged was number included in the claim, made for which the property of the Company was to be put up for sale. It was then urged that under S. 286 2 of Act 1 of 1951, the Collector, was bound in the first instance to exhaust, the processes for recovery of arrears prescribed by cls. a to e of S. 279 of the Act and he companyld number attach and sell immovable property of the Company until those processes were exhausted. It was urged that s. 286 2 of the Act was mandatory and the Collector number having sold the movables in the first instance, the sale must be declared void. The amount for the recovery of which the sale of the assets of the Company was held, included income-tax dues, sugarcane cess and the amount due for cane supplied to the Company. This amount was recoverable as arrears of land revenue because of the provisions of the Indian Income-tax Act, 1922, the U.P. Sugar Factories Control Act, 1938, and the Co-operative Societies Act 1912. Section 286 2 of the U.P. Zamindari Abolition and Land Reforms Act provides Sums of money recoverable as arrears of land revenue, but number due in respect of any specific land, may be recovered by process under this section from any immovable property of the defaulter. Though the amount for which the property was put up for sale was recoverable as arrears of land revenue, numberpart of it was due in respect of any specific land. The amount companyld prima facie be recovered from the immovable property of the defaulter. But relying upon the expression under this section in S. 286 2 of Act 1 of 1951 it was companytended that the immovable property of the Company companyld be attached and sold only after the processes prescribed in s. 279 cls. a to e were resorted to and the Collector was unable to recover the dues. It was urged that this is the true effect of s. 286 1 and s. 279 of Act 1 of 1951. Section 286 1 provides It any arrears of land revenue cannot be recovered by any of the processes mentioned in clauses a to e of Section 279, the Collector may realize the same by attachment and sale of the interest of the defaulter in any other immovable property of the defaulter. Section 279 of the Act set-, out the procedure for recovery of land revenue. The section as it stood at the. date of We provided An arrear of land revenue may be recovered by any one or more of the following processes a by serving a writ of demand or a citation to appear on any defaulter, b by arrest and detention of his person,. c by attachment and sale of his movable property including produce, d by attachment of the holding in respect of which the arrear is due, e by sale of the holding in respect of which the arrear is due. f by attachment and sale of other immovable property of the defaulter. Section 280 deals with the mode of recovery prescribed by cl. a of s. 279 s. 281 with the mode prescribed by cl. b i.e. by arrest and detention and s. 282 with the mode prescribed by cl. c i.e. by attachment and sale of the movable property including produce. Section 284 sets out the procedure for sale of the holding in respect of which the arrear was due and s. 286 1 deals with the power to proceed. against the interest of the defaulter in other immovable property. For recovery of arrears of land revenue, the Collector is bound to resort to one or more of the processes mentioned in s. 279 read with ss. 280, 282, 284 285 of the Act, before he attaches and sells the immovable property of the defaulter, other than the holding in respect of which the land revenue is due. That clearly follows from the terms of sub-s. 1 of s. 286. Subsection 2 of s. 286 makes the same process applicable for recovery of sums of money which are recoverable as arrears of land revenue. But the liability to pay the amount so recoverable arises by virtue of the provisions of other Acts and is number due in respect of any holding of the defaulter. It is only recoverable as arrears of, land revenue by virtue of the provisions of the Act under which the liability has arisen. Since U.P. Act 1 of 1951 provides by s. 286 2 that sums of money recoverable as arrears of land revenue may be recovered from any immovable property of the defaulter, the procedure prescribed by the Act applies to such recovery. Because of the use of the expression under this section in sub-s. 2 of s. 286 it is number intended that the Collector must resort in the first instance to the processes prescribed by cls. a to e before he resorts to cl. f , of s. 279. Cls. d e of s. 279 have numberapplication, where income- tax dues and sugarcane cess or cane price are recoverable from the defaulter and cl. b is inapplicable where the defaulter is an artificial person like a Company. Power to recover arrears of land reve- nue from a defaulter is governed by the processes mentioned in S. 279 cls. a to e , and s. 286 1 places certain restrictions upon the power of the Collector to recover land revenue by attachment and sale of lands other than the holding in respect of which the land revenue is due. But the restrictions-on the power of the Collector operate only when land revenue is in arrears. Restrictions if any upon the power of the Collector to recover dues under other statutes, as arrears of land revenue arise from the statute which is the source of the liability and number from Act 1 of 1951 which merely sets out the processes for recovery of the dues. To hold that sub-s. 2 of s. 286 requires the Collector in the first instance to recover out of the movable property or by arrest and detention of the defaulter before immovable property of the defaulter is attached and sold is to amend the substantive provisions of the Acts under which the liability for money due is recoverable as land revenue. For instance , under s. 46 2 of the Indian Income-tax Act, 1922, it is provided The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908 V of 1908 , a Civil Court has for the purpose of the recovery of aim amount due under a decree. The power exercisable, by the Collector in recovering arrears of income-tax which are recoverable as arrears of land revenue are, it is clear, number restricted to the Land Revenue Code the Collector is entitled to exercise all the powers of a Civil Court for the purpose of recovery of an amount due under a decree under the Code of Civil Procedure, and the Code of Civil Procedure imposes numberobligation to recover the dues by sale of movables or by arrest and detention of the defaulter before, immovable property may be attached. Section 51 of the Code of Civil Procedure provides Subject to such companyditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree- a by delivery of any property specifically decreed b by attachment and sale or by sale without attachment of any property c by arrest and detention in prison d in such other manner as the nature of the relief granted may require Provided By virtue of 0. 2 1 r. 30 e of the Code of Civil Procedure simultaneous execution both against the property and person of the judgment-debtor is allowed. To hold, therefore, that in seeking to recover income-tax dues the Collector is in the first instance, by virtue of sub-s. 2 of s. 286, restricted to the recovery of arrears by attachment and sale of movables or by arrest and detention in prison of the defaulter and it he cannot recover the amount then and then only to have recourse to the immovable property of the judgment-debtor is to seek to amend both the, Income-tax Act, 1922, as well as the Code of Civil Procedure. The U . Legislature is companypetent to alter the provisions of the Income-tax Act. We are, therefore, unable to agree with the opinion expressed by jagadish Sahai, S., that the use of the words under this ,section points to the applicability of the whole section i.e. subsection 1 in the recovery dues recoverable under sub-section 2 of section 286, and that the two sub-sections have got to be read together and the effect of sub-section 2 is that even in companynection with the recovery of miscellaneous dues as arrears of land revenue it is permissible to sell immovable property of the defaulter but subject to what is provided for in sub-section 1 . We are also unable to agree with the observations made by the learned Judge that if sub-section 2 of section 286 of the Act were to be read in isolation and detached from subsection 1 it would become impossible to administer the same. Sub- section 2 only provides that the arrears of miscellaneous dues may be recovered from any immovable property of the defaulter without specifying the manner in which they are to be recovered, that is to say, without indicating whether it would be recovered from the usufruct of the property or by its sale or by mortgage or lease. The provisions of the Act which authorise recovery of sums of money as arrears of land revenue do number require the Collector to follow any sequence of the processes for recovery it is companypetent to the Collector to resort to any process prescribed by s. 279 in aid of recovery of the dues which are recoverable as arrears of land revenue. It is unnecessary in the circumstances to companysider whether the provisions of s. 286 1 are mandatory or directory. It was urged in the alternative that after selling the immovable property which realized more than Rs. 23,50,000/- the Collector should number have sold the movable property, for the claim for which the properties of the Company were put up for sale, was only Rs. 8,38,176-13-0. At first blush there is force in this argument. Why the Collector thought it necessary to sell the movables after the immovable property was knocked down to the Cawnpore Sugar Works Ltd. for Rs. 23,50,000/- was never explained. After the immovable property belonging to the Company was knocked down to the purchasers for an amount of Rs. 23,50,000/- it was apparently number necessary to hold the auction for sale of movables valued at Rs. 7,64,817/- and to accept a bid of only Rs. 2,75,000/-. The argument that the movables were of numberuse to any person other than the purchaser of immovable property is without substance. The movables sold were the tools and workshop plant, mill stores, spare parts and furniture, and it is difficult to accept the companytention that these movables were of numbervalue except to the purchaser. But the Company raised numbercontention in this behalf before the Commissioner, number in the petition before the High Court. The question was also number argued before the High Court in that form. We cannot at this stage investigate the reasons why movables valued at Rs. 7,64,817/- were put up for sale and sold when it was number necessary to sell them to realise the dues. It was then urged that the Income-tax Officer had, by intimation dated December 11, 1954, asked the Collector to stay the sale proceeding for recovery of income-tax dues amounting to Rs. 81,821-2-0. For some reason, which is number clear from the record, the Collector ignored the intimation given by the Income-tax Officer and proceeded to put the property to sale. He included the amount in the sale proclamation, overruling the protests of the Company, and sold the properties for recovery of a companysolidated amount which included Rs. 81,821-2-0 due as income-tax. But on that account the sale is number illegal or irregular. An amount exceeding Rs. 7 lakhs was recoverable for the sugarcane cess and the cane price and the immovable property of the Company companyld have been put up for sale for recovery of those dues. The sale is number proved to be vitiated on the ground of any material irregularity or mistake in publishing or companyducting it, and it is therefore number liable to be set aside. It was finally company that the Company was prevented from exercising its right under r. 285-H of the rules framed under U.P. Act 1 of 1951, because the purchaser at the sale was appointed, by order of the Central Government, Authoriged Con- troller of the factory of the Company, and all the properties of the Company were put in .he possession of the purchaser, and that the Company was unable to raise the requisite amount to be deposited under r. 285-H. Under r. 285-H any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collectors office- a for payment to the purchaser, a sum equal to 5 per cent. of the purchase money and b for payment on account of the arrear, the amount specified in the proclamation in A. Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account and c the companyt of the sale. If the deposit is made, the Collector shall pass an order setting aside the sale. It was open to the Company under r. 285-H even after the bids were accepted to deposit 5 per cent. of the sum realised by sale of the immovable property and to pay the amount due for the recovery of which the sale was ordered and the companyt of the sale. But numberattempt was made to deposit the amounts mentioned in cls. a , b c of r. 285-H. The companytention that the Company was unable to make the deposit under Rule 285-H because the purchaser was appointed Authorised Controller was also number raised before the Commissioner and the High Court. The argument that if the movable property had number been sold, the Company may have raised the amount liable to be deposited under cls. a , b c , but by sale of those properties and purchase of the same by a person who was shortly after the purchase appointed the Authorised Controller prevented the Company from exercising the right under r. 285-H is hypothetical. Again even that argument was number raised before the Commis- sioner, number in the petition, number in the arguments before the High Court. Evidently, the Company was required to companyply with the provisions of r. 285-H for having the sale set aside to deposit an amount of Rs. 9,50,000/- besides the companyt of the sale. Even if the movables had number been sold, and assuming that they were of the value of Rs. 7,64,817/- the movables were number sufficient to enable the Company to raise the amount required for deposit under r. 285-H. The companytentions raised by the Company fail and the appeal is dismissed.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1015 1968. Appeal from the judgment and Order dated April 30, 1964 of the Madras High Court in T.C. No. 194 of 1961 Reference No. 74 of 1961 . Narsaraju, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the appellant. Gopalkrishnan and R. Balasubramaniam, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Special Bench of the Madras High Court in which the sole question that has to be determined is whether Rule 24 of the Appellate Tribunal Rules, 1946, insofar as it enables the Tribunal to dismiss an appeal for default of appearance was ultra vires the provisions of s. 33 of the Income tax Act, 1922, hereinafter called the Act. The facts which gave rise to the reference which was made to the High Court by the Appellate Tribunal lie within a narrow companypass. The assessee owned 1674 shares in Asher Textiles Ltd. and 9 out of 20 shares in Textile Corporation Private Ltd. at Tiruppur. The latter companypany was the managing agents of the Asher Textiles Ltd. The assessee was a Joint Managing Director of the Textile Corporation Private Ltd. along with one P. D. Asher. The assessee sold on December 21, 1954 his entire holding in two companypanies to Asher and some of his relations. These sales resulted in a profit of Rs. 72,515/- and Rs. 3,14,100/- respectively. The Income tax Officer assessed these amounts to tax for the assesment year 1956-57 under s. 10 5A of the Act as companypensation earned for parting with the effective power of management. The assessment was upheld by the Appellate Assistant Commis- sioner. The assessee appealed to the Appellate Tribunal. After some adjournments the appeal was finally fixed for hearing on August 26, 1958. On that date numberone was present on behalf of the assessee number was there any application for an adjournment. On August 28, 1958 the Tribunal dismissed the appeal for default of appearance. This the Tribunal purported to do under Rule 24 of the Appellate Tribunal Rules, 1946 as amended by numberification dated January.26, 1948. Five weeks after the disposal of the appeal the assessee filed a petition before the Appellate Tribunal praying for its restoration. It was stated, inter alia, in that petition 11 Sup CI/69-3 that it was owing to some misapprehension on the part of the assessees auditors at Coimbatore that the date of the hearing of the appeal was number intimated to the companynsel at Madras who was companyvalescing there after a surgical operation. The Tribunal did number companysider that there was sufficient cause for restoration and rejected the petition. The assessee applied for a reference under S. 66 1 of the Act on two questions of law but that application was rejected by the Tribunal. The assessee approached the High Court under S. 66 2 of the Act and on April 5, 1960 the High Court directed the Tribunal to state the case on two questions. The matter was first heard by a division bench but owing to the validity of Rule 24 having been canvassed a special bench companysisting of the Chief Justice and two judges was companystituted. The special bench reframed the first question thus Whether rule 24 of the Appellate Tribunal Rules, 1946 in so far as it enables the tribunal to dismiss an appeal for default of appearance, is ultra vires. The second question was Whether on the facts and in the circumstances of the case the two sums of Rs. 72,515 and Rs. 3,14,100 were assessable to tax under s. 10 5A of the Income tax Act ? Rule 24 was framed under sub-s. 8 of s. 5A of the Act. This provision companyfers power on the Appellate Tribunal to frame Rules regulating its own procedure. Section 5A 8 reads Subject to the provisions of this Act, the appellate tribunal shall have power to regulate its own procedure and the procedure of Benches of the Tribunal in all matters arising out of the discharge of its functions, including the places at which the Benches shall hold their sittings. The Appellate Tribunal first made certain Rules which were published by means of a numberification dated Feburary 1, 1941. Rule 36 provided that the Tribunal shall determine the appeal on merits numberwithstanding the fact that the appellant did number choose to appear. The Tribunal was also empowered to restore an appeal which had been disposed of without hearing the appellant. The Rules made in 1941 were substituted by the Appellate Tribunal Rules, 1946 which were promulgated by means of Income-tax Appellate Tribunal Notification, dated October 31, 1946. Rule 24 was in the following terms Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appel- lant does number appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for defau lt or may hear it ex parte. This Rule was amended by means of a numberification dated January 26, 1948 and it took the following shape Where on the day fixed for hearing or any other day to which the hearing may be adjourned,, the appellant does number appear when the appeal is called on for hearing, the tribunal may dismiss the appeal for default. The Rule companytained numberprovision for restoring an appeal dismissed for default. The Special Bench of the High Court numbericed the previous history of Rule 24 as also the terms in which it came to be framed after the passing of the Income tax Act, 1961 which enables the Tribunal, in its discretion, either to dismiss the appeal for default or to hear it ex parte in case of number-appearance of the parties and further enables the Tribunal to set aside the dismissal on sufficient cause being shown for number-appearance. After referring to various decided cases and examining the relevant provisions of the Act, the Special Bench summed up the position thus To sum up the position, the Appellate Tribunal is the appointed machinery under the Act for finally deciding questions of fact in relation to, assessment of income-tax,. Its companyposition, companysisting as it does of qualified persons in law and accountancy, makes it peculiarly qualified to deal with all questions raised in a case, whether there be assistance from the party or his companynsel or number. Section 33 4 obliges it to decide an appeal, after giving an opportunity to the parties to put forward their case The giving of the opportunity only emphasises the character of the quasi-judicial function per- formed by the Appellate Tribunal. The fact that that opportunity is number availed of in a particular case, will number entitle the Tribunal number to decide the case. There can be numberdecision of the case on its merits if the matter is to be disposed of for default of appearance of the parties. Further, an adjudication on the merits of the case is essential to enable the High Court to perform its statutory duty and for the Supreme Court to hear an appeal filed under section 66-A Section 33 4 itself indicates by the use of the word thereon, that the decision should relate to the subject matter of the appeal. Rule 24, therefore, to be companysistent with s. 3 3 4 companyld only empower the Tribunal to dispose of the appeal on its merits, whether there be an appearance of the party before it or number. This was indeed the rule when it was first promulgated in the year 1941. The rule in its present form, as amended in the year 1948, in so far as it enables the dismissal of an appeal before the Income tax Appellate Tribunal for default of appearance of the appellant, Wm, therefore, be ultra vires, as being in companyflict with the provisions of Section 3 3 4 of the Act. On behalf of the appellant it was urged that the powers of the Appellate Tribunal relating to an appeal are derived from s. 3 3 4 as also from S. 5A 8 and the Rules made thereunder and when Rule 24 cannot be said to be ultra vires the latter provision it cannot be impugned as being repugnant to S. 33 4 . There is numberhing, either express or implied, in the language of S. 33 4 from which it companyld be held that the order of the Tribunal in an appeal must always be made on the merits. The decisions of the Allahabad, Madras and Punjab High Courts in Shri Bhagwan Radha Kishen v. Commissioner of Income tax, U.P., 1 Ruvula Subba Rao Ors. v. Commissioner of Income tax, Madras 2 and Mangat Ram Kuthiala Ors. v. Commissioner of Income tax, Punjab 3 have also been pressed in support of the appellants companytention. Now S. 5A of the Act appears in Chapter 2A relating to the Appellate Tribunal. Sub-ss. 1 to 4 provide for the companystitution of the Tribunal and the appointment of its President and Members. Sub-sections 5 to 7 provide for the manner in which the benches of the Tribunal have to function. Sub-section 8 is to this effect Subject to the provisions of this Act the Appellate Tribunal shall have the power to regulate its own procedure and the procedure of benches of the Tribunal in all matters arising out of the discharge of its functions including the places at which the bench shall hold their sittings. The powers, functions and duties of the Appellate Tribunal are set out in ss. 28, 33, 35, 37,48 and 66. For Our purpose reference may be made only to ss. 33 and 66. Sub- sections 1 and 2 of S. 33 give a right to the assessee and the Commissioner to appeal to the Appellate Tribunal against the order passed by the Appellate Assistant Commissioner within sixty days of the companynmunication of his order. Under sub.s. 2A the Tribunal can admit an appeal after the expiry of sixty days if it is, satisfied that there was sufficient cause for number presenting it within that period. Sub-section 3 lays down the formalities in the matter of the filing of an appeal. Sub-s. 4 is to the effect that the Appellate 1 22 I.T.R. 104. 3 38 I.T.R. 1. 2 27 I.T.R. 164. Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit and shall companymunicate any such orders to the assessee and to the Commissioner. Sub-s. 5 deals with the changes lo be made in the assessment as a result of the orders of the Appellate Tribunal Sub-section 6 makes the orders of the Tribunal on appeal final,, the only saving being with reference to the provisions of s. 66. Under that section the assessee or the Commissioner can require the Appellate Tribunal to refer to the High, Court any question. of law arising out of the order of the Appellate Tribunal and if the Tribunal refuses to state the case on the ground that numberquestion of law arises the assessee or the Commissioner can, within the prescribed period, apply to the High Court and the High Court can direct the Appellate Tribunal to state the case and make a reference. It is unnecessary to refer to all the previsions of s. 66 except to numberice the power of the High Court to decide the question of law which decision has to be implemented by the Appellate Tribunal. Now Rule 24 cannot be said to be ultra vires sub-s. 8 of s. 5A but what has to be essentially seen is whether it is repugnant to the provisions of s. 3 3 4 . The reasoning which prevailed with the Special Bench of the High Court, in the present case, was that under s. 3 3 4 the Tribunal is bound to dispose of the- appeal on the merits, numbermatter whether the appellant is absent or number. Reference in particular was made to the remedies, namely, the provisions companytained in s. 66 relating to reference on question of law and the further right of appeal to this Court under s. 66A if the case is certified to be fit one for appeal. The Special Bench found it difficult to accept that by exercising the power to dismiss an appeal for default of appearance under Rule 24, these remedies which were open to an aggrieved party companyld be defeated or ren- dered infructuous. The fact that there was numberprovision in Rule 24 or any other Rule for restoring an appeal once it was dismissed for default was also companysidered weighty in the matter. The cases in which the validity of Rule 24 has been upheld may number be companysidered. In Shri Bhagwan Radha Kishen Commissioner of Income tax, U.P. 1 the discussion on the question of validity of the rule is somewhat meagre. It was numberdoubt said that Rule 24 did number in any way companye into companyflict with s. 33 4 but hardly any reasons were given in respect of that view. It was recognoised that there was numberspecific rule empowering the Tribunal to restore an appeal dismissed for default of appearance but it was observed that the Tribunal would have inherent jurisdiction to set aside such an order if satisfied with regard to the existence of a sufficient cause. According to Ravula Subba Rao Ors. v. Commissioner of Income tax, kadras 2 a very- wide power was given to 1 22 I.T.R. 104. 2 27 I.T.R. 164. the Appellate Tribunal by s. 33 4 and it companyld pass any order which the circumstances of the one required. it was immaterial whether the opportunity of being heard had be en availed of by the party or number. This provision, it was held, did number make it obligatory for the Appellate Tribunal to dispose of the appeal on merits. In this case again there, was hardly much discussion and the Allahabad decision was simply followed. In Mangat Ram Kuthiala Ors. Commissioner of Income tax, Punjab 1 , the points raised were different and arose in a petition filed under Arts. 226 and 227 of the Constitution. It does number appear that the validity of Rule 24 was canvassed. The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of s. 33 4 and in particular the use of the word thereon that the Tribunal has to go into the companyrectness or otherwise of the points decided, by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving A decision on the merits on questions of fact and law and number by merely disposing. of the appeal on the ground that the party companycerned has failed to appear. As observed in Hukumchand Mills Ltd. v. Commissioner of Income tax, Central Bombay 2 the word thereon in s. 33 4 restricts the jurisdiction of the Tribunal to the subject matter of the appeal and the words pass such orders as the Tribunal thinks fit include all the powers except possibly the power of enhancement which are companyferred upon the Appellate Assistant Commissioner by S. 31 of the Act. The provisions companytained in s. 66 about making a reference on question of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been Properly filed, for default without making any order thereon in accordance with S. 33 4 . The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of s. 66. So far as the questions of fact are companycerned the decision of the Tribunal is final and refe- rence can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has numberappellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under s. 33 4 . It follows from all this that the Appellate Tribunal is bound to give approper decision on questions of fact as well as law which can only be done,if the appeal is disposed of on the merits 1 38 I.T.R. 1. 2 63 I.T.R. 232. 8 25 and number dismissed owing to the absence of the appellant. It was laid down as far back as the year 953 by S. R. Das, J. as he then was in Commissioner of Income tax,-Madras v Mtt. Ar. S. Ar. Arunahalam Chettiar 1 that the jurisdiction of the Tribunal and of the High Court is companyditional on there being an order by die Appellate Tribunal which may be said to be one under s. 33 4 and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in Commissioner of Income tax, Bombay Scindia Steam Navigation Co. Ltd. 2 indicating the necessity of the disposal of the appeal on the merits by,the Appellate Tribunal. This is how the learned judge had put the matter in the form of interrogation How can it be said that the Tribunal should seek for advice on a question which it was number called upon to companysider and in respect of which it had numberopportunity of deciding whether the decision of the Court should be sought. Thus looking at the substantive provisions of the Act there is numberescape from the companyclusion that under s. 33 4 the Appellate Tribunal has to dispose of the appeal on the merits and cannot short circuit the same by dismissing it for default of appearance. Now although Rule 24 provides for dismissal of an appeal for the failure of appellant to appear, the Rules at the material time did number companytain any provision for restoration of the appeal.- Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal vide Shri Bhagwan Radha Kishen v. Commissioner of Income tax, U.P. 3 and Mangat Ram Kuthiala Ors. v. Commissioner of Income tax, Punjab 4 . There is a companyflict of opinion among the High Courts whether there is any inherent power to restore fin appeal dismissed for default under the Civil Procedure. Code. Mulla, Civil. Procedure Code, Vol. II, pp. 1583, 1584 . It is unnecessary to resolve that companyflict in the present case. It is true that the Tribunals powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to- and identical with the power of an appellate companyrt under the Civil Procedure Code. Assuming that for the aforesaid reasons the Appellate Tribunal is companypetent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly companyes into companyflict with sub.-s. 4 of s. 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is 1 23 I.T.R. 180. 2 42 I.T.R. 589. 3 22 I.T.R. 104. 4 38 I.T.R. 1. the rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Beach of the High Court and hold that the answer to the question which was referred was rightly given in the affirmative. The appeal fails and it is dismissed with companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2459 of 1966. Appeal by special leave from the judgment and order dated August 2, 1965 of the Kerala High Court in Income-tax Referred Case No. 20 of 1964. Sukumar Mitra and B. D. Sharma, for the appellant. Swaminathan and R. Gopalakrishnan, for the respondent. The Judgment of the Court was delivered by Shah, J. For the assessment year 1952-53 respondents M s. Manick Sons were assessed to tax in the status of a registered firm and their income was companyputed at Rs. 15,331 inclusive of Rs. 15,000 being undisclosed income. For the assessment year 1953-54 the respondents returned Rs. 40,887 as their income from business. The Income-tax Officer discovered an aggregate amount of Rs. 74,692 as cash credits which, in his view, were number satisfactorily explained by the respondents. The Income-tax Officer accordingly brought to tax a total income of Rs. 1,31,179 being Rs. 56,487 as income from business and Rs. 74,692 as income from other sources and assessed the respondents as an unregistered firm. The Appellate Assistant Commissioner in appeal reduced the income of the respondents from business to Rs. 38,420 and income from other sources to Rs. 46,620. In second appeal the Tribunal reduced the income from business to Rs. 28,820 and companyfirmed the finding that the source of the cash credits aggregating to Rs. 46,620 had remained unexplained. But the Tribunal observed that there were certain special features in the case which needed proper companysideration in determining the final assessment. The Tribunal then aggregated the income for the assessment years 1952-53 and 1953-54 for the two years, which he rounded off at Rs. 1,00,000 and apportioned in equal shares in the two years. For the assessment year 1952-53, the Tribunal recorded that the respondents had given an undertaking to file a voluntary return for assessment on the basis of total income of- Rs. 50,000. At the instance of the Commissioner of Income-tax, four questions were referred to the High Court of Kerala Whether it was number beyond the jurisdiction of the Appellate Tribunal to reopen the companycluded assessment for assessment year 1952-53 and to direct that the income should, be revised in that year at Rs. 50,000 as against Rs. 15,331 already fixed ? Whether on the facts and circumstances of the case and the evidence on record, the Tribunal was justified in directing that any portion of the cash credits be assessed to income-tax in any year other than the assess- ment year 1953-54 ? Whether on the facts and circumstances of the case and evidence on record, the Tribunal was-,justified in finding that a portion of the cash credits were companyered by the intangible additions made in 1952-53 and 195354 assessment ? Whether on the facts and circumstances of the case and the evidence on record, the Tribunal as justified in directing that the income under the head business for the assessment year 1953-54 be reduced to Rs. 50,000 ? The High Court declined to answer questions 1 2 and answered questions 3 4 in the affirmative. The Commissioner appeals with special leave. The judgment of the Tribunal is number a reasoned decision on the questions arising before it it is cryptic and in parts obscure, and gives numbergrounds for its companyclusion. The judgment again lends companyntenance to a method of assessment which the Indian Income-tax Officer aggregated to Rs. 74692 which amount was the Tribunal observed that the cash credits discovered by the Income-tax Officer aggregated to Rs. 74692 which amount was reduced by the Appellate Assistant Commissioner to Rs. 50,620. It is companymon ground that the companyrect figure should be Rs. 46,620. The Tribunal then observed that on the evidence on record these residuary items must remain unexplained. But the Tribunal thought that because in the assessment year 1952-53 the total income of Rs. 15,331 was companyparatively small companypared to the income of the earlier years some of that years profits must have companye into the profits of the next year. The Tribunal then set out a companysolidated statement of account for two years Trade profits assessed for assessment Rs. year 1952-53 15,331 Trade profits on the basis of books and without the estimates and additions impugned in this appeal Rs. 56,487 less Rs. 45,600 40,887 Trading deficiency Palluruthy branch 1,000 Pavaratty branch 5,000 6,000 Unexplained cash Credits 50,620 Less set off- Intangible addition for 1952-53 Rs. 15,000 Intangible addition for 1953-54 as above. Rs. 6,000 21,000 29,620 ---------- Assessable for both the year 91,838 and observed The assessee has undertaken to file a voluntary return for assessment year 1952-53 on the basis of a total income of Rs. 50,000. In these circumstances, the total business income of the assessee for the year under appeal is reduced to Rs. 50,000 only. The unexplained cash credits found by the Appellate Assistant Commissioner and accepted by the Tribunal were Rs. 46,620. The total income of the two years on the basis adopted by the Tribunal was therefore Rs. 87,838. But the income of the two years was rounded off at Rs. 1,00,000 and divided equally between the two years. For making up a companysolidated statement of account the Tribunal gave numberreasons number did it give any reasons for debiting the intangible additions of Rs. 15,000 and Rs. 6,000 against the cash credits. Counsel for the respondents suggested that the Tribunal was presumably of the view that Rs. 15,000 brought to tax as business income in the assessment in 1952- 53 must have been entered in the books of account of the next year and that Rs. 6,000 called trading deficiency in the two branches was entered as cash credit. The appeal before the Tribunal raised a simple question-- whether the cash credits aggregating to Rs. 46,620 or any part thereof were liable to be taxed as income of the respondents in the year 1953-54. For that purpose the, Tribunal had to companysider whether the respondents furnished any explanation leading to a justifiable inference that the amount or a part thereof did number represent income of the respondents In the view of the Tribunal the cash credits had remained unexplained. But the Tribunal still reduced the cash credits by Rs. 21,000, and then proceeded to amalgamate the income for the two years and to divide it equally. For reducing the cash credits by Rs. 21,000 numberreasons have been given, and amalgamation of the income for the two years and apportionment is without authority of law. An assessment which has become final may be reopened in appeal by the Appellate Assistant Commissioner or the Tribunal or in revision by the Commissioner, or under an order of rectification of mistake, or pursuant to a numberice of reassessment. The Tribunal hearing an appeal may give directions for reopening assessment of the year to which the appeal relates it cannot give any directions to reassess in case of a period number companyered by that year. There is numbersanction in law to enforce the undertaking given by the respondent-when urging his appeal in respect of the year 1953-54, to make a voluntary return for the year 1952-53 and even if the respondents carried out that undertaking the assessment of 1952-53 companyld number be reopened otherwise than in the manner prescribed by law. The undertaking must therefore be ignored. Under S. 33 4 of the Income-tax Act, 1922, the Income-tax Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power companyferred by that sub-section is wide, but it is still a judicial power which must be exercised in respect of matters that arise in the appeal and according to law. The Tribunal in deciding an appeal before it must deal with questions of law and fact which arise out of the order of assessment made by the Income-tax Officer and the order of the Appellate Assistant Commissioner. It cannot assume powers which are inconsistent with the express provisions of the Act or its scheme. The Tribunal was entitled to enquire whether the source of the cash credits was explained if it held that they represented capital or income of earlier years, it companyld exclude them from income liable to be taxed in the year to which the appeal related. But the Tribunal had numberpower to find on amalgamation of income an average of more years than one, or to give credit for what is called intangible additions, without explaining why credit was given. There is numberwarrant for the claim made by companynsel for the respondents that the order passed by the Tribunal was by companysent. The Tribunal has number stated so, and if the order was made by companysent of the departmental authorities and the respondents, the objection should have been prominently raised when the Commissioner asked for a reference to the High Court. Counsel urged that the final order passed by the Tribunal operates to the prejudice of the respondents, and the Commissioner is number aggrieved by that order. Counsel said that even though the Tribunal has found that the total income for the two years in question was approximately Rs. 91,838 which if a companyrection account had been made would have been Rs. 87,838 , the Tribunal has directed assessment of Rs. 50,000 in the year 1952-53 and another Rs. 50,000 in the year 1953-54. But this is only a superficial way of looking at the matter. In the assessment year 195253 the respondents were assessed in the status of a registered firm and the income of the firm had to be distributed amongst the partners, and the shares of the partners companyld be assessed to tax in their hands. The rate of tax on this income unless the partners have large individual income would be companyparatively low. In the year 1953-54 the respondents were an unregistered firm and the total income of the unregistered firm was liable to be taxed. It was also companyn-tended that the arguments raised before this Court were never set up either before the Tribunal or before the High Court and should number be permitted to be raised. The question raised clearly flow from the companytentions raised before the Tribunal and companytemplate an enquiry into matters urged by companynsel by the Commissioner. The decision of this Court Commissioner of Income-tax, Madras v. S. Nelliappan 1 on which reliance was placed by companynsel for the respondents has little bearing in this case. In S. Nelliappans case 2 it was held that the companyclusion whether a cash credit in the books of account of an assessee is properly explained is one on a question of fact on which numberreference can be made to the High Court under s. 66 of the Indian Income-tax Act. The Court in that case did number lay down that it is open to the Tribunal to make a companysolidated assessment of tax in respect of the assessment of income for the two years and then divide the income in equal shares. Turning then to the questions companynsel for the respondents companyceded that the Tribunal had numberJurisdiction to direct the Income-tax Officer to reopen the assessment for the year 195253. He submitted however that the Tribunal did number give any such directions it merely recorded an undertaking given by the respondents that they will voluntarily submit a return for Rs. 50,000 for the year 1952-53. But the companytext in which the statement recording the undertaking occurs in paragraph 7 of the 1 66 I.T.R. 722. judgment of the Tribunal and the direction given in paragraph 8 leave numberroom for doubt that the Tribunal did give a direction to the Income-tax Officer to reassess the income for the year 1952-53. On the answer to the first question numberfurther enquiry need be made on the second question. The Tribunal has given numberreasons in support of the view that the intangible additions of Rs. 21,000 companyered a part of the cash credits. Our attention has also number been invited to any evidence which establishes a companynection between the cash credits for Rs. 21,000 and the additions of Rs. 15,000 made in the assessment for 1952-5.3 and Rs. 6,000 added in 1953-54. The fourth question companytemplates an inquiry whether the Tribunal was justified in directing that the income under the head business for the assessment year 1953-54 be reduced to Rs. 50,000. The question is somewhat misleading. The direction of the Tribunal was that the total income of the respondents be reduced to Rs. 50,000 for the year 1953- 54, the business income being Rs. 28,820 and the balance being income from other sources. For reasons already set out the Tribunal had numberjurisdiction to proceed to companybine the income for the two years 195253 and 1953-54 and to divide it for the purpose of assessment between the two years equally. The Tribunal had to assess the income for the year in question. The appeal is allowed, and the answers to the questions re- companyded by the High Court are discharged. The answers to the questions will be as follows Q. 1 -Tribunal had numberjurisdiction. Q. 2 -Tribunal had numberjurisdiction. Q. 3 -in the negative. Q. 4 -in the negative.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 681 of 1968. Appeal by special leave from the judgment and order dated September 29, 1961 of the Bombay High Court in Income-tax Reference No. 46 of 1969. N. Shroff, for the appellant. K. Mitra, S. A. L. Narayan Rao and B. D. Sharma, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Bombay High Court answering the following question referred to it by the Income Tax Appellate Tribunal in the affirmative and against the assessee Whether on the facts and circumstances of the case the receipt of Rs. 1,87,000 in the hands of the assessee is a revenue receipt and liable to income-tax ? The assessee used to carry on his business under the name and style of Milkhiram Bros. He was being assessed from the year 1945-46 onwards. On October 31, 1946 he secured a companytract for the purchase of approximately 1,28,499 parachutes from Tata Aircraft Ltd. The parachutes belonged to the Government of India and the Tata Aircrafts Ltd. was acting as the agent of the Government. The agreed purchase price of the parachutes was approximately Rs. 931 lakhs. The companytract was entered into by means of letters. The assessee addressed a letter, dated October 29, 1946 to Tata Aircraft Ltd. companytaining an offer. Tata Aircraft Ltd. sent a reply, dated. November 1, 1946, companyfirming the sale on the terms and companyditions given in that letter. The assessee had to make a deposit by way of earnest money of a sum of Rs. 10 lakhs. The assessee did number have enough funds with him. He entered into an arrangement with M s. Nathmal Nihalchand, Pokhraj Hirachand and Harilal Hargovandas for financing the business. The details of this arrangement were companytained in a letter, dated October 31, 1946. The amount of Rs. 10 lakhs was to be deposited by the latter who were to receive a net profit share of 9 As. in a rupee. The assessee later on arranged on November 30, 1946 with the financiers to withdraw from the old arrangement recorded in the letter, dated October 31, 1946. The benefits if the companytract of purchase of parachute were transferred to the firm styled as Pokhraj Hirachand for a sum of Rs. 3,00,000 on November 13, 1946. On November 14, 1946 the parties ap- proached Tata Aircraft Ltd. who agreed to accept M s. Pokhraj Hirachand as purchasers of parachutes on the terms and companyditions originally agreed to between the assessee and that companypany. On November 22, 1946 an agreement of partnership was entered into between six persons, namely, Nathmal, Pokhraj, Chandumal, Prithviraj, Shapoorji Co. Ltd. and Jamalbhai. This partnership took over the companytract of purchase entered into by Pokhraj Hirachand. It was registered by the Income tax authorities for the assessment year 1948-49. M s. Pokhraj Hirachand in their assessment claimed a deduc- tion of Rs. 3,00,000 being the payment made to the assessee under the arrangement mentioned above. The Income tax authorities disallowed the claim on the ground that it was a capital payment. The aforesaid firm appealed to the Tribunal which held that only a payment of Rs. 1,87,000 had been proved to have been made to the assessee. For the assessment year 1947-48 the Income Tax Officer reopened the assessment of the assessee under S. 34 of the Income Tax Act, hereinafter called the Act on the ground that the income of Rs. 3,00,000 had escaped assessment. The assessee companytended that only a sum of Rs. 1,87,000 had been received by him and number Rs. 3,00,000. The Tribunal decided that point in his favour in appeal after he had failed before the Appellate Assistant Commissioner. The assessees companytention before the Tribunal was that the nature of the receipt of Rs. 1,87,000 was capital and number revenue. According to him the amount received was in the nature of a premium for giving up his right to do business in parachutes. The Tribunal did number accede to his companytention and- held that the assessee had received profit in respect of a venture in the nature of trade. Thereupon the assessee moved the Tribunal and the question of law was referred. The High Court entertained numberdoubt on the facts which had been found that the receipt of Rs. 1,87,000 was a trading receipt. This was so because the assessee was a businessman dealing in articles including parachute silk. In the opinion of the High Court the companytract which he entered into with Tata Aircraft Ltd. was a companytract for the purchase of stock-in-trade for the business which he was carrying on. It was argued before the High Court that the amount in question had been received for relinquishing his right to participation in the profits of the partnership from which the assessee withdrew. According to the High Court such an argument had number been presented before the Appellate Tribu- nal. The letters which were exchanged between the companycerned parties were also companysidered and the companyclusion at which the High Court arrived was that the benefit of the companytract which the assessee had entered into with M s. Tata Aircraft Ltd. had been transferred by him in favour of Messrs. Pokhraj Hirachand for a companysideration of Rs. 3,00,000 out of which a sum of Rs. 1,87,000 only had been found to have been actually received by the assessee. That sum, therefore represented a receipt for transferring the benefits of the companytract entered into by the assessee in the ordinary companyrse of the business. On behalf of the assessee who is the appellant before us it is submitted that the sum of Rs. 1,87,000 received by him companyld number be regarded as income. The agreement which had been entered into by the appellant with M s. Tata Aircraft Ltd. was a capital asset or a source of possible income and the transfer which was made was number of the goods which were to be acquired under the companytract but the source of income itself, namely, the appellants share, right, title and interest was transferred. The second companytention which was also raised before the High Court is that the amount in question were received by the appellant for relinquishing his right to participate in the partnership which had been formed and from which he withdrew. It companyld number therefore partake of the character of a revenue receipt. It appears that before the Tribunal only the first companytention was raised. The Tribunal found as a fact that it was the appellant who had entered into a companytract with M s. Tata Aircraft Ltd. for the purchase of parachutes for a fixed sum. He intended to do and did a venture in the nature of trade. The Tribunal took into companysideration the well-known numbermal method of doing supply business in our companyntry. According to it, highly influential parties instead of doing the business themselves manage to secure companytracts and pass on the actual execution of the business to others in return for a fixed sum of money. This is what the appellant did and the income which he received was liable to income tax. It is difficult to see how on these findings the appellant companyld legitimately argue that the amount of Rs. 1,87,000 was a capital receipt. It is true that by means of the letter, dated October 31, 1946 M s. Nathumal Nihalchand, Pokhraj Hirachand etc. were given 9 As. share in a rupee in the transaction and a partnership agreement was purported to have been entered into. But this letter mere embodied an arrangement for financing a business venture into which the appellant had entered. He did number have the funds and a deposit of Rs. 10 lakhs had to be made immediately. M s. Nathumar Nihalchand, Pokhraj Huachand and others agreed to pay that amount to M s. Tata Aircraft Ltd. It must be remembered that it was the appellant who had entered into the companytract with M s Tata Aircraft Ltd. in respect of the purchase of parachutes. When he agreed to accept a sum of Rs. 1,87,000 from the aforesaid persons as companysideration for transferring the benefits of the companytract the appellant can well be said to have companycluded a deal which represented the profit which he anticipated by ac- quiring the parachutes. It has been submitted on behalf of the appellant that he was number carrying on the business of transferring or selling the benefits of companytracts and therefore the companytract entered into with M s. Tata Aircraft Ltd. companyld number be regarded as a part of his stock-in-trade It would seem that the Tribunal proceeded more on the footing that the companytract relating to the parachutes was a venture in the nature of trade than on the basis that it companystituted stock-in-trade of the appellant. It is, therefore, unnecessary to examine this aspect of the matter. It seems to us that the second companytention of the appellant ought number to have been entertained by the High Court. It was number raised before the Tribunal. At any rate, the High Court examined it fully and came to the companyclusion that the arrangement companytained in the letter, dated October 31, 1946 was one which had been made between a person in need of money and certain financiers and that numberpartnership had companye into existence. In that view of the matter there companyld be numberquestion of the appellant having relinquished a share in the partnership. We would accordingly hold that the answer returned by the High Court was companyrect. The appeal fails and is dismissed with companyts.	Case appeal was rejected by the Supreme Court
ORIGINAL JURISDICTION Writ Petition No. 65 of 1969. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights. V. Gupte, P. A. Choudhury and K. Rajendra Chaudhuri, for the petitioners. C. Setalvad, P. Ramachandra, Rao, Advocate-General, Andhra Pradesh, A. Raghubir and A. V. Rangam, for respondent No. 1. C. Setalvad and R. N. Sachthey, for respondent No. 2. V. Pillai, H. S. Gururai Rao and Subodh Markandeya, for respondents Nos. 3 to 45. Sardar Ali Khan, P. N. Duda and J. B. Dadachanji, for res- pondent No. 46. A. Choudhury, K. Rajendra Chaudhuri and C. S. Sreenivasa Rao, for the interveners. The Judgment of the Court was delivered by Hidayatullah, C.J. The petitioners are persons employed in the ministerial services of the Andhra Pradesh Government. All of them were working in various offices located in the cities of Hyderabad and Secunderabad. On January 19, 1969, leaders, of all political parties in the Legislature of the Andhra Pradesh State appeared to have met and reached the decision that to Implement what are called Telengana Safeguards, the following measures should be taken All number-domicile persons, who have been appointed either directly, by promotion or by transfer to posts reserved under the Andhra Pradesh Public Employment Requirement as to Residence Rules, 1959 for domiciles of Telengana region will be immediately relieved from service. The posts so rendered vacant will be filled by qualified candidates possessing domicile qualifications and in cases where such candidates are number available the posts shall be left unfilled till qualified domicile candidates become available Action on the -above lines will be taken immediately. All number-domicile employees so relieved shall be provided employment in the Andhra region without break in service and by creating supernumerary posts, if necessary. The Government of Andhra Pradesh then passed an order O.Ms. 36, G.A. SR Dept. on January 21, 1969 relieving before February 28, 1969 all number-domicile persons appointed on or after November 1, 1956 to certain categories of posts reserved for domiciles of Telengana under the Andhra Pradesh Public Employment Requirement as to Residence Rules, 1959. Names of such incumbents were to be shown in a proforma and they were to be employed in the Andhra region without break in service by creating supernumerary posts, if necessary. These supernumerary posts were to be treated as temporary addition to the strength of the office companycerned and were to be adjusted against future vacancies in companyresponding posts as they arose. The action was based upon s. 3 of the Public Employment Requirement as to Residence Act, 1957 44 of 1957 which was an Act of Parliament made in pursuance of cl. 3 of Art. 16 of the Constitution making special provision for requirement as to residence and brought into force on March 21, 1959. Section 3 of the Act gave the power to make Rules in respect of certain classes of employment in certain areas. It provided Power to make rules in respect of certain classes of public employment in certain areas.- The Central Government may, by numberification in the Official Gazette, make rules prescribing, in regard to appointments to- a any subordinate service or post under the State Government of Andhra Pradesh, or any requirement as to residence within the Telengana area or the said Union territory as the case may be, prior to such appointment. In this section,- a Telengana area companyprises all the territories specified in sub-section 1 of section 3 of the States Reorganisation Act, 1956. Under s. 4, the Rules had to be laid before each House of Parliament for a period of number less than 30 d s and Parliament companyld make such alterations as it liked. Under S. 5 the Rules had a life of 5 years but by subsequent legislation the period was extended to 10 years. It is said that the period is to be extended by another 5 years. The Rules were made on March 21, 1959. They are called the Andhra Pradesh Public Employment Requirement as to Residence Rules, 1959. Rule 3 provides Requirement as to residence Prior to Appointment A person shall number be eligible for appointment to a post within the Telengana area under the State Government of Andhra Pradesh or to a post under a local authority other than a cantonment board in the said area unless- he has been companytinuously residing within the said area for a period of number less than fifteen years immediately preceeding the prescribed date and he produces before the appointing authority ,concerned, if so required by it, a certificate of eligibility granted under these rules Provided that in relation to posts in the Secretariat Departments and the Offices of the Heads of Departments of the State Government of Andhra Pradesh situated in the cities of Hyderabad and Secunderabad, the requirement as to residence laid down in this rule shall apply to the filling of only the second vacancy in every unit of three vacancies which are to be filled by direct requirement Provided further that any period of temporary absence from Telengana area for the purpose of prosecuting his studies or for undergoing medical treatment or any period of such temporary absence number exceeding three months for any other reason shall number be deemed to companystitute a break in the companytinuity of such residence, but for purpose of calculating the said period of fifteen years any such period of temporary absence shall be excluded. The petitioners -were appointed between December 27, 1956 and July 4, 1968. They -challenge the Act, the Rules and the proposed action as ultra vires the Constitution. Their case is that Art. 16 3 under which the Act and the Rules purport to be made has been misunderstood as companyferring a power to make, a law prescribing requirement as to residence in a part of a State. For this reason S. 3 of the Act is challenged as ultra vires the Constitution. Article 16 on which the Act, the Rules and the present action are all based, reads Equality of opportunity in matters of public employment. There shall be equality of opportunity -for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall, on ground only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. 4 5 The question is one of companystruction of this article, particularly of the first three clauses, to find out the ambit of the law taking power of Parliament. The first clause emphasises that ware shall be in India equality of opportunity for all citizens in matters of employment or appointment to any office under the late. The word State here is to be understood in the extended use given to it by the definition of that word Art. 12. The second clause then specifies a prohibition against discrimination only on the grounds of religion, race, sex, descent, place of birth, residence or any of them. The intention here is make every office or employment open and available to every citizen, and inter alia to make offices or employment in one part India open to citizens in all other-parts of India. The third pause then makes an exception. This clause was amended by the Constitution Seventh Amendment Act, 1956. For the original words of the clause under any State specified in the First schedule or any local or other authority within its territory any requirement as to residence within-that State, the present words from under the Government to Union territory have been substituted. Nothing turns upon the amendment which seeks to apply of the exception in the clause to Union territory and to remove ambiguity in language. The clause thus enables Parliament to make a law in a special case prescribing any requirement As to residence within a State or Union territory prior to appointment, as a companydition of employment in the State or Union territory. Under Art. 35 a this power is companyferred upon Parliament but is denied to the Legislatures of the States, numberwithstanding anything in the Constitution, and under b any law in force immediately before the companymencement of the Constitution in respect to the matter shall subject to the terms thereof and subject to such adaptations that may be made under Art. 372 is to companytinue in force until altered or repealed or amended by Parliament. The legislative power to create residential qualification for employment is thus exclusively companyferred on Parliament. Parliament can make any law which prescribes. any requirement as to residence within the State or Union territory prior to employment or appointment to an office in that State or Union territory. Two questions arise here. Firstly, whether Parliament, while prescribing the requirement, may prescribe the requirement of residence in a particular part of the State and, secondly, whether Par- liament can delegate this function by making a declaration and leaving the details to be filled in by the rule making power of the Central or State Governments. Mr. S. V. Gupte, for the petitioners, points out that the Constitution is speaking of State and Union territory. It has already made a declaration that numberperson shall be disqualified for any office in the territory of India because of his residence in any particular part of India. The exception, therefore, must be viewed narrowly and number carried to excess by interpretation. The article speaks of residence in a State and means only that. If it chose to speak of residence in parts of State such as Districts, talauqas, cities, towns etc. more appropriate and specific language companyld have been used such as any requirement as to residence within that State or Union territory or part of that State or Union territory. Having used the word State, the unit State is only meant and number any part thereof. Reference is made to the history of the drafting of the Article and the debates in the Constituent Assembly which bear out this companytention. On the other hand, Mr. Setalvad bases his argument on two things. He companytends that the power is given to Parliament to make any law and, therefore, Parliament is supreme and can make any law on the subject as the article says. He very ingeniously shifts the emphasis to the words any requirement and companytends that the requirement may be also as to residence in the State or any particular part of state. The claim for supremacy of Parliament is misconceived. Par- liament in this, as in other matters, is supreme only in so far as the Constitution makes it. Where the Constitution does number companycede supremacy, Parliament must, act within its appointed functions and number transgress them. What the Constitution says is a matter for,construction of the language of the Constitution. Which is the proper companystruction of the two suggested? By the first clause equality of opportunity in employment or appointment to an office is guaranteed. By the second clause, there can be numberdiscrimination, among other things, on the ground of residence. Realising, however, that sometimes local sentiments may have to be respected or sometimes an inroad from more advance States into less developed States may have to be prevented, and a residential qualification may, therefore, have to be prescribed, the exception in clause 3 was made. Even so,, that clause spoke of residence within the State. The claim of Mr. Setalvad that Parliament can make a provision regarding residence in any particular part of a State would render the general prohibition lose all its meaning. The words any requirement cannot be read to warrant something which companyld have been said more specifically. These words bear upon the kind of residence or its duration rather than its location within the State. We accept the argument of Mr. Gupte that the Constitution, as it stands, speaks of a whole State as the venue for residential qualification and it is impossible to think that the Constituent Assembly was thinking of residence in Districts, Taluqas, cities, towns or villages. The fact that this clause is an exception and came as an amendment must dictate that a narrow companystruction upon the exception should be placed as indeed the debates in the Constituent Assembly also seem to indicate. We accordingly reject the companytention of Mr. Setalvad seeking to put a very wide and liberal companystruction upon the words any law and any requirement. These words are obviously companytrolled by the words residence within the State or Union territory which words mean what they say, neither more number less. It follows, therefore, that S. 3 of the Public Employment Requirement as to Residence Act, 1957, in so far as it relates to Telengana and we say numberhing about the other parts and Rule 3 of the Rules under it are ultra vires the Constitution. In view of our companyclusion on this point it is number necessary to express any opinion whether delegation to the Central and or State Governments to provide by rules for the further implementing of the law made by Parliament is valid or number. It was argued that the Mulki Rules existing in the former Hyderabad State must companytinue to operate by virtue of Art. 35 b in this area. This point is number raised by the petitions under companysideration and numberexpression of opinion by us is desirable. L12 Sup Cl/69-9 For the reasons given above we quash the orders passed and declare s. 3 of the Public Employment Requirement as to Residence Act, 1957 as also Rule 3 of the Rules ultra vires the Constitution.	Case appeal was accepted by the Supreme Court
ORIGINAL JURISDICTION Writ Petition No. 347 of 1968. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. Kanak Ghosh and B. Datta, for the appellant. Ram Reddy, A. V. V. Nair and P. Parameshwar Rao, for the respondent. The Judgment of the Court was delivered by Grover, J. This is a petition under Art. 32 of the Constitu- tion challenging, inter alia, the companystitutionality of ss. 46 and 47 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 Act No. 17 of 1966 , hereinafter called the Act and for issuance of a writ in the nature of mandamus or other appropriate writs and directions to the Commissioner of Hindu Religious and Charitable Endowments, hereinafter called the Commissioner , prohibiting him from exercising his powers or taking action under the aforesaid sections. The petitioner claims to be the Mathadhipathi of Shri Swami Hathiramji Math Tripathi-Thirumalla in the State of Andhra Pradesh. It is stated that this institution was founded several centuries ago and is one of the renowned Maths in India. Hundreds of Sadhus visit the Math throughout the year and it is the duty of the Mahant as its religious head to provide--the visiting Sadhus with food and shelter and to perform all religion duties With regard to the celebration of Hindu festivals, propagation of the cult of Shri Swami Hathiramji and performance of other religious functions. It is alleged that Mahant Chettandoss, the previous incumbent died on March 18, 1962. On March 24, 1962 the Commissioner took charge of the Math and its properties under s. 53 of the Andhra Pradesh Andhra Areas Hindu Religious Charitable Endowments Act, 1951, Act No. 19 of 1951, hereinafter referred to as the Repealed Act. The petitioner filed a suit on March 26, 1962 in the companyrt of the Subordinate Judge, Chittoor for a declaration-that he was the rightful successor. The Commissioner was impleaded as a party to the suit. He also filed a revisional application under s. 92 of the repealed Act to the State Government. The Government disposed of the revisional application on June 5, 1962. It appointed the petitioner as the interim Mahant subject to certain companyditions which need number be mentioned. Before this order was made the petitioner withdrew the suit filed by him in April 1962. Devendradoss, who was another claimant but who was a minor, filed a writ petition in the High Court challenging the above order of the Government but the same was rejected by the division Bench. Devendradoss then filed certain suits for a declaration of his title. On August 22, 1964, the Commissioner made an order directing the petitioner to show cause why the previous order appointing him as an interim p Mahant be number recalled. According to the petitioner this was done because the State Government started claiming, companytrary to the rule and custom which prevailed in the Math, that the amounts received on account of Padakanukas personal offerings should be paid to the Government and number taken by the Mahant. This order was challenged by the petitioner by means of a writ petition in the High Court. The High Court is issued a stay order which was later on clarified to mean that the State Government was free to take such further action under the Act as it companysi- dered necessary. On September 9, 1965 the State Government framed charges against the petitioner and directed him to furnish his explanation. The petitioner was placed under suspension with immediate effect. It was further directed that the Assistant Commissioner, Tirupathi should take charge of the Math and its affairs. Meanwhile another claimant Bhagwantdoss filed a suit on September 29, 1965, claiming title to the gaddi in his own right. The writ petition which -had been filed by the petitioner was allowed by the High Court on November-- 8, 1966. The matter ulti- mately came up in appeal to this Court, the judgment being reported in Secretary, Home Endowments , Andhra Pradesh V. Digyadarsam Rajindra Ram Dasjee 1 . The judgment of the High 1967 3 S.C.R. 891. Sup CI/69-8 Court was affirmed. The High Court had held that the petitioner had succeeded to the office of the Mahant on the death of Chetandoss on March 18, 1962 in his own right. This Court companycurred in that view and observed that the mere circumstance that the Government had also passed an order appointing him as the interim Mahant companyld number take away his right to function as a trustee on the basis of his original right. It followed that the Government had numberjurisdiction to pass an order placing him under suspension as that virtually amounted to a removal of the trustee of the Math which companyld only be done in the manner provided by s. 52 of the repealed Act. The Act received the assent of the President on December 6, 1966 and was enforced with effect from January 27, 1967. On May 30, 1967 the petitioner filed a petition under Art. 226 of the Constitution in the High Court for declaring the present impunged provisions of the Act as ultra vires. That petition was dismissed in limine as premature. An appeal to the Letters Patent bench failed. On companying to know that certain orders were going to be passed against the petitioner whereby charges on various matters were to be preferred and an inquiry made and that the suspension of the petitioner from Mahantship was going to be ordered, the present petition was filed under Art. 32 of the Constitution in October 1968. In this petition, apart from challenging the provisions of the Act a case of mala fide action has been sought to be made out against the respondent. In the order which was made by the Government on November 18, 1968, as many as 14 charges have been preferred against the petitioner and his suspension has been duly ordered. The Assistant Commissioner Endowments Department has been directed to attend to the day-today administration of the Math temporarily and its Endowments until the disposal of the inquiry. Now the Act has been enacted to companysolidate and amend the law relating to the administration and governance of charitable and Hindu religious institutions and endowments in the State of Andhra Pradesh. Chapter I companytains the definitions of various expressions used in the Act including the word Commissioner. Chapter II provides for the appointment of Commissioner, Joint Commissioners etc., and gives their powers and functions. Chapter III deals with administration and management of charitable and Hindu religious institutions and endowments. Chapter IV provides for registration of such institutions and endowments. Section 42 in Chapter V defines the word mathadhipathi to mean any person whether known as mohant or by any other name, in whom the administration of a math or specific endowment attached to a math are vested. Sections 46 and 47 are in the following terms 446. 1 The Commissioner may suo motu or on an application of two or more persons having interest, initiate proceedings for removing a mathadhpathi or a trustee of a specific endowment attached to a math, if he- a is of unsound mind b is suffering from any physical or mental defect or infirmity which renders him unfit to be a mathadhipathi or such trustee c has ceased to profess the Hindu religion or the tenets of the math d has been sentenced for any offence involving moral turpitude, such sentence number having been reversed e is guilty of breach of trust or misappropriation in respect of any of the properties of the math f companymits persistent and wilful default in the exercise of his powers or performance of his functions under this Act g violates any of the restrictions imposed or practices enjoined by the custom, usage or the tenets of the math, in relation to his personal companyduct, such as celibacy, renunciation and the like h leads an immoral life. The Commissioner shall frame a charge on any of the grounds specified in sub-section 1 against the mathadhipathi or trustee companycerned and give him an opportunity of meeting such charge, of testing the evidence adduced and of adducing evidence in his favour. After companysidering the evidence adduced and other material before him, the Commissioner may, by order exonerate the mathadhipathi or trustee, or remove him. Every such order shall state the charge framed against the mathadhipathi or the trustee, his explanation and the finding on such charge together with the reasons therefor Provided that in the case of a math or specific endowment attached thereto whose annual income exceeds rupees one lakh, the order of removal passed by the Commissioner against the mathadhipati Or trustee shall number take effect unless it is companyfirmed by the Government, Pending the passing of an order under sub-section 2 the Commissioner may suspend the mathadhipathi or the trustee. 4 a Any mathadhipathi or trustee aggrieved by an enquiry in this behalf that an arrangement for the 2 may, within ninety days from the date of receipt of such order, institute a suit in the companyrt against such order. An appeal shall lie to the High Court within ninety days from the date of a decree or order of the companyrt in such suit. 47. 1 Where a temporary vacancy occurs in the office of the mathadhipathi and there is dispute in regard to the right of succession to such office, or where the mathadhipathi is a minor an has numberguardian fit and willing to act as guardian, or where the mathadhipathi is under suspension under sub-section 3 of section 46, the Commissioner shall, if he is satisfied after making an inquiry in this behalf that an arrangement for the administration of the math and its endowments or of the specific endowments, as the case may be, is necessary, make such arrangement, as he thinks fit until the disability of the mathadhipathi ceases or another mathadhipathi succeeds to the office, as the case may be. In making any such arrangement, the Commissioner shall have due regard to the claims, if any, of the disciples of the math. 3 Section 83 companyfers powers on the Government to call for and examine the record of the Commissioner in respect of, any proceedings number being a proceeding in respect of which a suit or an appeal or application or reference to a companyrt is provided by the Act, to satisfy themselves as to the regularity of such proceedings or the companyrectness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the Government that such decision or order should be modified, annulled, reversed or remitted for companysideration they may pass orders accordingly. Under s. 104 where a Commissioner makes an enquiry or hears an appeal under the Act, the inquiry has to be made and the appeal has to be heard as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits or the hearing of appeals and the provisions of the Indian Evidence Act and the Indian Oaths Act have also been made applicable. Learned companynsel for the petitioner has assailed the companystitutionality of s. 46 although he has sought to read s. 47 along with it so as to establish that the companybined effect of the provisions company- tained in both the sections would be hit by Arts. 14, 19 1 f , 25, 26 and 31 of the Constitution. Before the submissions, which have been made, are examined reference may be made to The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1 in which the companystitutionality of various provisions of the repealed Act was challenged. That case related to the Shirur Math which was one of the 8 maths situate at Udipi in the district of South Kanara. The Hindu Religious Endowments Board functioning under the Madras Hindu Religious Endowments Act 1927 had taken action to frame a scheme for the administration of the affairs of the math. The challenge in the companyrts was companyfined to the companystitu- tional validity of the repealed Act. B. K. Mukherjea, J., as he then was dealt exhaustively with the rights of a Mahant to hold office as well as enjoy the property of the institution. The following observations at pp. 1019, 1020 are numbereworthy As said above, the ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a Mahant altogether. It is true that the beneficial interest which he enjoys is appurtenant to his duties and as he is in charge of a public institution, reasonable restrictions can always-be placed upon his rights in the interest of the public. But the restrictions would cease to be reasonable if they are calculated to make him unfit to discharge the duties which he is called upon to discharge. A Mahants duty is number simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a companypetent line of teachers who companyld impart religious instructions to the disciples and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to be adherents. This purpose cannot be served if the restrictions are such as would bring the Mathadhipathi down to the level of a servant under the State department. It is from this standpoint that the reasonableness of the restrictions should be judged. It was held that the Mahant was entitled to claim the protection of Art. 19 1 f . The same Shirur Math figured in another case 1 1954 S. C. R. 1005. which came up to this Court and the decision in which is reported in H. H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious Charitable Endowments, Mysore 1 . There the companystitutionality of S. 52 1 f of the repealed Act, as amended, was unsuccessfully assailed. The scheme of that section was similar to S. 92 of the Code of Civil Procedure. The Commissioner or any two or more persons having interest or having obtained the companysent in writing of the Commissioner companyld institute a suit in the companyrt to obtain a decree for removing a trustee of a math or a specific endowment attached to a math for any one or more reasons given in clauses. a to f which were similar to clauses a to f of sub-s. 1 of s. 46 of the Act. Whereas previously the Commissioner companyld only institute a suit in a companyrt, he has number been empowered under the Act by s. 46 to initiate proceedings himself for removing a mathadhipathi on the grounds mentioned in clauses a to h . Clauses g and h are new and sub-s. 2 gives the procedure for making the inquiry. If the matriadhipathi is aggrieved by the order made by the Commissioner, he has been given the right to institute a suit against such order in the companyrt by sub-s. 4 .The difference, in other words, is that previously the removal companyld be ordered only by the companyrt but under s. 46 the Commissioner can order the removal after following the procedure laid down and his order is final except that it can be challenged by means of a -suit by the mathadhipathi. It also requires companyfirmation by the Government where the annual income of the math exceeds rupees one lakh. An additional power has been companyferred on the Commissioner by sub-s. 3 to suspend the mathadhipathi pending the passing of an order- under sub-s. 2 . , The view which was taken in the above case was that S. 52 1 f of the repealed Act did number in effect seek to cut down the authority of the Mahant which was traditionally recognized and that the said provision which authorised the institution of a suit for removal of a Mahant where he was found to have wasted the property of the math or applied such funds or property for purposes wholly unconnected with the institution did number amount to an unreasonable restriction upon the exercise of the rights of the Mahant. On behalf of the petitioner a strenuous attempt has been made to show that s. 46 of the Act is quite different from its companynterpart companytained in the repealed Act, namely, s. 52 and that the powers which have been companyferred are clearly violative of the fundamental right to hold the office of the Mahant as also the property of the math. In H. H. Sudhundra Thirtha Swamiars 1 case it has been emphasised that the Mahant by virtue of his office is under an obligation to discharge the duties as a 1 1963 Supp. 2 S. C. R. 302. A trustee and is answerable as such. He enjoys large powers for the benefit of the institution of which he is the head. He is to incur expenditure for the math i.e. for carrying on the religious worship for the disciples and for maintaining the dignity of his office but the property is attached to the office and the Mahant cannot incur expenditure for personal luxury or objects incongruous with his position as a Mahant. Keeping all this in view it is difficult to see how the provisions of s. 46 would be violative of Art. 19 1 f of the Constitution. The grounds on which his removal as mathadhipathy can be ordered have- been specifically provided and numberexception has been or can be taken to them. The main attack is based on the power given to the Commissioner instead of the companyrt to make an inquiry into or try the allegations or charges against the Mahant and order his removal if such charges are established. It is number possible to see how a procedural change of this nature can be regarded as companytravening either Art. 19 1 f or Art. 14 of the Constitution which is the other Article which has been pressed into service. The procedure which has been laid down makes all the proceedings before the Commissioner quasi-judicial. This is particularly so when the provisions of s. 104 of the Act are kept in view. Moreover if any order of removal is made that can be challenged in a companyrt of law and there is a further right of appeal to the High Court. Learned companynsel for the petitioner had finally to build his argument on the provisions of sub-s. 3 which give power to the Commissioner to suspend the mathadhipathi during the pendency of an inquiry and before any order in the matter of removal is made. It is pointed out that such suspension would seriously interfere with the numerous duties which a mathadhipathi has to perform as the head of a spiritual fraternity. The petitioner, in this manner, has been debarred from number only managing the institution but also from carrying out the essential work which according to the tenets and custom of the fraternity he is under an obligation to do For instance he cannot look after the Sadhus and other disciples who companystantly visit the math and companye for religious instruction there number can he preside over religious functions and other periodical festivities which are held in the seat of the math. Thus, it is urged, that there is a clear violation of Art. 19 1 f which guarantees the petitioners right to hold and enjoy the property, apart from the interference with his right to practise and propagate religion and manage the affairs of the math in matters of religion which rights are guaranteed by Arts. 25 and 26 of the Constitution. As regards Art. 19 1 f it has to be seen whether the restrictions which have been imposed by the impugned provisions of the Act are reasonable and at in the interest of the general public. There can be little or numberdoubt that if a mathadhipathi is of an unsound mind or suffers from any physical or mental defect or infirmity or has ceased to profess Hindu religion or the tenets of the math or if his case falls within clauses d to h of s. 46 1 his removal would be in the interest of the general public. A mathadhipathi cannot possibly perform his duties either as a spiritual or a temporal head number can be properly administer or manage the trust property if he falls within the categories mentioned in clauses a to d or has been guilty of breach of trust or wilful default etc. or leads an immoral life vide clauses e to h of S. 46 1 . Even under the Civil Procedure Code his removal companyld have been ordered in proceedings under S. 92 for similar reasons. The suspension of a mathadhipathi, during the inquiry, is a necessary and reasonable part of the procedure which has been prescribed by s. 46. If he is allowed to function during the pendency of an inquiry the entire purpose of the enquiry might be defeated. The mathadhipathi, may, during the pendency of the inquiry, do away with most of the evidence or tamper with the books of account or otherwise companymit acts of misappropriation and defalcation in respect of the properties of the math. It is essential, therefore, in these circumstances to make a-provision for suspending him till the enquiry companycludes and an order is made either exonerating him or directing his removal. On the question whether ss. 46 and 47 of the Act companytravene Articles 25 and 26, a good deal of reliance has been placed on the observations in the first Shirur Math 1 case. Mukherjea, J. as he then was delivering the judgment of the companyrt had examined the scope of the language of Arts. 25 and 26. It was indicated by him that freedom of religion in our Constitution is number companyfined to religious beliefs only, it extends to religious practice as well as subject to the restrictions which the Constitution itself has laid down. Under Art. 26 b , therefore, -a religious denomination or Organisation enjoys companyplete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion and numberoutside authority has any jurisdiction to interfere with its decision in such matters. Moreover under Art. 26 d it is the fundamental right--of a religious denomination or its representative to administer its property in accordance with law and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. It was further laid down that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause d of Art. 1 1954 SUPP. S. C. R. 1005. Now under s. 47 of the Act where a mathadhipathi is under suspension the Commissioner can make such arrangement as he thinks fit for the administration of the math until another mathadhipathi succeeds to the office and in making such arrangement he has to have due regard to the claims of the disciples of the math. It is maintained on behalf of the petitioner that the appointment of Assistant Commissioner, Endowments Department, Tirupathi as the day to-day administrator-- of the math and its endowment as a two-fold effect. The first is that the companyplete autonomy which a religious denomination like the math in question enjoys in the matter of observance of rights and ceremonies essential to the tenets of the religion has been interfered with. The second is that the right of administration has been altogether taken away from the hands of the religious- denomination by vesting it in the Assistant Commissioner. This clearly companytravenes the provisions of clauses b and d of Art. 26 within the rule laid down in the first Shirur Math case. By doing so in exercise of the powers under s. 47 the Commissioner has also debarred the petitioner from practising and propagating religion freely which he is entitled to do under Art. 25 1 . The attack on the ground of violation of Art. 25 1 can be disposed of quite briefly. It has numberhere been established that the petitioner has been prohibited or debarred from professing, practising and propagating his religion. A good deal of material has been placed on the record to show that the entire math is being guarded by police companystables but that does number mean that the petitioner cannot be allowed to enter the math premises and exercise the fundamental right companyferred by Art. 25 1 of the Constitution. As regards he companytravention of clauses b and d of Art. 26 there is numberhing in ss. 46 and 47 which empowers the Commissioner to interfere with the autonomy of the religious denomination in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion the denomination professes or practises number has it been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day to-day affairs is interfering in such matters, Section 47 of the Act deals only with a situation where the.--- is a temporary vacancy in the office of the mathadhipathi by reason of -any dispute in regard to the right of succession to the office or the other reasons stated therein as also because the mathadhpathi has been suspended pending an inquiry under s. 46. Its provisions do number take away the right of administration from the hands of a religious denomination altogether and vest it for all times in a person or authority who is number entitled to exercise that right under the customary rule and custom prevailing in the math. In the first Shirur math case, s. 56 of the repealed Act before its amendment by Act 12 of 1954 was struck down as power had been given to the Commissioner to require the trustee to appoint a manager for the administration of the secular affairs of the institution and the Commissioner himself companyld also make the appointment. It was pointed out that this power companyld be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and numberpre-requisites like mismanagement of property or maladministration of trust funds were necessary to enable the trustee to exercise such drastic power. The effect of the section really was that the Commissioner was at liberty, at any moment, to deprive the Mahant of his right to administer the trust property even if there was numbernegligence or maladministration on his part. Such a restriction was held to be opposed to the provisions of Art. 26 d of the Constitution. Section 47 of the Act is number in pari materia with S. 56 of the repealed Act. On the companytrary S. 47 indicates quite clearly the companyditions and situations in which the Commissioner can appoint someone to carry on the administration of the math and its endowments. In the present case, the Assistant Commissioner has been appointed as a- day to-day admi- nistrator because of the inquiry which is pending against the petitioner and in which serious charges of misappropriation and defalcation of trust funds and leading an immoral life are being investigated. It cannot be said that S. 47 would be hit by Art. 26 d of the Constitution as the powers under it will be exercised, inter alia, when mismanagement of property or maladministration of trust funds are involved. Counsel for the petitioner has number made any serious attempt to argue that in the view that we are inclined to take there would be any companytravention of Art. 31 1 of the Constitution. He has, however, pressed for the petitioner being allowed to take the padakanukas which are receivable by the Mahant of which he will keep an account as was directed by this Court when disposing of the stay petition on December 13, 1968. Counsel for the respondent agrees to this and has also agreed to keep accounts of whatever amount is spent on feeding the sadhus and on, the management of the math property. He has further given an undertaking that the inquiry which is being companyducted under s. 46 of the Act will be companycluded within a period of -three months. It may be made clear that the Assistant Commissioner who is in charge of the day-to-day administration temporarily of the math and its endowments shall be fully entitled to take necessary steps for recovery of all debts and claims which companyld have been recovered by the Mahant from various debtors etc. The writ petition, however, fails and it is dismissed, but in view of the entire circumstances we make numberorder as to companyts.	Case appeal was rejected by the Supreme Court
ORIGINAL JURISDICTION Writ Petitions Nos. 173 to 175 of 1967. Petition under Art. 32 of the Constitution of India for enforcement of the fundamental rights. K. Sen -and E. C. Agrawala, for the petitioners in P. No. 173 of 1967 . Frank Anthony, E. C. Agrawala and A. T. M. Sampat, for the petitioners in W.P. No. 174 of 1967 . K. Daphtary, E. C. Agrawala, A. T. M. Sampat, S. R. Agarwala and Champat Rai, for the petitioners in W.P. No. 175 of 1967 . Niren De, Attorney-General, N. S. Bindra and R. N. Sachthey, for respondents Nos. 1 to 6 in all the petitions . R. Gokhale and Harbans Singh, for respondents Nos. 7 and 26 in all the petitions . The Judgment of the Court was delivered by Hegde, J. These petitions are brought by some of the Gazet- ted Officers serving in the forest department of the State of Jammu and Kashmir. Some of them are serving as Conservators of Forests, some as Divisional Forest Officers and others as Assistant Conservators of Forests. All of them feel aggrieved by the selections made from among the officers serving in the forest department of the State of Jammu and Kashmir to the Indian Forest Service, a service companystituted in 1966 under s. 3 1 of the All India Services Act, 1951 and the rules framed thereunder. Hence they have moved this Court to quash numberification No. 3/24/66-A-15 IV dated the 29th July 1967 issued by the Government of India, Ministry of Home Affairs, as according to them the selections numberified in the said numberification are violative of Arts. 14 and 16 of the Constitution and on the further ground that the selections in question are vitiated by the companytravention of the principles of natural justice. They are also challenging the vires of s. 3 of the All India Services Act, rule 4 of the rules framed under that Act and Regulation 5 of the Indian Forest Service Initial Recruitment Regulations 1966, framed under the aforementioned rule 4. Section 2 A of the All India Services Act, 1951 authorises the Central Government to companystitute three new All India Services including the Indian Forest Service. Section 3 provides that the Central Government shall after companysulting the Government of the States companycerned including that of the State of -Jammu and Kashmir to make rules for the regulation of recruitment and the companyditions of service of persons appointed to those All India Services. Sub-s. 2 of S. 2 prescribes that all rules made under that section shall be laid for number less than fourteen days before Parliament as soon as possible after -they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they are so laid. In pursuance of the power given under S. 3, rules for the recruitment to the Indian Forest Service were made in 1966- Indian Forest Service Recruitment Rules, 1966. The only rule relevant for our present purpose is rule 4 1 which reads As soon as may be, after the companymencement of these rules, the Central Governme nt May recruit to the service any person from amongst the members of the State Forest Service adjudged suitable in accordance with such Regulations as the Central Government may make in companysultation with the State Governments and the Commission. The Commission referred to in the above rule is the Union Public Service Commission. The Proviso to that sub-rufe is number relevant for our present purpose. We may next companye to the Regulations framed under rule 4 1 . Those Regulations are known as the Indian Forest Service Initial Recruitment Regulations, 1966. They are deemed to have companye into force on July 1, 1966. Regulation 2 defines certain expressions. Regulation 3 provides for the companystitution of a special selection board. It says that the purpose of making selection to State cadre, the Central Government shall companystitute a special selection board companysisting of the Chairman of the Union Public Service Commission or his numberinee, the Inspector General of Forests of the Government of India, ad officer of the Government of India number below the rank of Joint Secretary, the Chief Secretary to the State Government companycerned or the Secretary of that Government dealing with the forests and the Chief Conservator of Forests of the State Government companycerned. Regulation 4 prescribes the companyditions of eligibility. That Regulation companytemplates the formation of a service in the senior scale and a service in the junior scale. Regulation 5 is important for our present purpose. It deals with the -preparation of the list of suitable candidates. It reads The Board shall prepare, in the order of preference, a list of such officers of State Forest Service who satisfy the companyditions specified in regulation 4 and who are adjudged by the Board suitable for appointment to posts in the senior and junior scales of the Service. The list prepared in accordance with sub-regulation 1 shall then be referred to the Commission for advice, by the Central Government along with - a the records of all officers of State Forest Service included in the list b the records of all other eligible officers of the State Forest Service who are number adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their number-inclusion in the list and c the observations, if any, of the Ministry of Home Affairs on the recommendations of the Board. On receipt of the list, along with the other documents received from the Central Government the Commission shall forward its recommendations to that Government. Regulation 6 stipulates that the officers recommended by the Commission under sub-r. 3 of Regulation 5 shall be appointed to the service by the Central Government subject to the availability of vacancies in the State cadre companycerned. In pursuance of the Regulation mentioned above, the Central Government companystituted a special selection board for select- ing officers to the Indian Forest Service in the senior scale as well as in the junior scale from those serving in the forest department of the State of Jammu and Kashmir. The numberinee of the Chairman of the Union Public Service Commission, one M. A. Venkataraman was the Chairman of the board. The other members of the board were the Inspector General of Forests of the Government of India, one of the Joint Secretaries in the Government of India, the Chief Secretary to the State Government of Jammu and Kashmir and Naqishbund, the Acting Chief Conservator of Forests of Jammu and Kashmir. The selection board met at Srinagar in May, 1967 and se- lected respondents 7 to 31 in Writ Petition No. 173 of 1967. The cases of respondents Nos. 32 to 37 were reserved for further companysideration. The selections in question are said to have been made solely on the basis of the records -of officers. Their suitability was number tested by any examination, written or oral., Nor were they interviewed. For several years before that selection the adverse entries made in the character rolls of the officers had number been companymunicated to them and their explanation called for. In doing so quite clearly the authorities companycerned had companytravened the instructions issued by the Chief Secretary of the State. Sometime after the afore-mentioned selections were made, at the instance of the Government of India, the adverse remarks made in the companyrse of years against those officers who had number been selected were companymunicated to them and their explanations called for. Those explanations were companysidered by the State Government and on the basis of the same, some of the adverse remarks made against some of the officers were removed. Thereafter the selection board reviewed the cases of officers number selected earlier as a result of which a few more officers were selected. The selections as finally made by the board were accepted by the Commission. On the basis of the recommendations of the Commission, the impugned list was published. Even after the review Basu, Baig and Kaul were number selected. It may also be numbered that Naqishbunds name is placed at the top of the -list of selected officers. Naqishbund had been promoted as Chief Conservator of Forests in the year 1964. He is number yet companyfirmed in that post. G. Basu, Conservator of Forests in the Kashmir Forest Ser- vice who is admittedly senior to Naqishbund had appealed to the State Government against his supersession and that appeal was pending with the State Government at the time the impugned selections were made. M. I. Baig and A. N. Kaul Conservators of Forests also claim that they are seniors to Naqishbund but that fact is denied by Naqishbund. Kaul had also appealed against his alleged supersession but it is alleged that appeal had been rejected by the State Government. Naqishbund was also one of the candidates seeking to be selected to the All India Forest Service. We were told and we take it to be companyrect that he did number sit in the selection board at the time his name was companysidered for selection but admittedly he did sit in the board and participate in its deliberations when the names of Basu, Baig and Kaul, his rivals, were companysidered for selection. It is further admitted that he did participate in the deliberations of the board while preparing the list of selected candidates in order of preference, as required by Regulation 5. The selection board was undoubtedly a high powered body. That much was companyceded by the learned Attorney-General who appeared for the Union Government as well as the State Government. It is true that the list prepared by the selection board was number the last word in the matter of the selection -in -question. That list along with the records of the officers in the companycerned cadre selected as well as number selected had to be sent to the Minis- try of Home Affairs. We shall assume that as required by Regulation 5, the Ministry of Home Affairs had forwarded that list with its observations to the Commission and the Commission had examined the records of all the officers afresh before making its recommendation. But it is obvious that the recommendations made by the selection board should have weighed with the Commission. Undoubtedly the adjudging of the merits of the candidates by the selection board was an extremely important step in the process. It was companytended before us that s. 3 of the All India Services Act, rule 4 of the rules framed thereunder and Regulation 5 of the Indian Forest Service Initial Recruitment Regulations 1966 are void as those provisions companyfer unguided, uncontrolled and uncanalised power on the companycerned delegates. So far as the vires of s. 3 of the Indian Administrative Act is companycerned, the question is numbermore res integra. It is companycluded by the decision of this Court in D. S. Garewal v. The State of Punjab and Anr. 1 We have number thought it necessary to go into the question of the vires of rule 4 and Regulation 5, as we have companye to the companyclusion that the impugned selections must be struck down for the reasons to be presently stated. There was companysiderable companytroversy before us as to the nature of the power companyferred on the selection board under rule 4 read with Regulation 5. It was companytended on behalf of the petitioners that that power was a quasi-judicial power whereas the case for the companytesting respondents was that it was a purely administrative power. In support of the companytention that the power in question was a quasi-judicial power emphasis was laid on the language of rule 4 as well as Regulation 5 which prescribe that the selections should be made after adjudging the suitability of the officers belonging to the State service. The word adjudge we were told means to judge or decide. It was companytended that such a power is essentially a judicial power and the same had to be exercised in accordance with the well accepted rules relating to the exercise of such a power. Emphasis was also laid on the fact that the power in question was exercised by a statutory body and a wrong exercise of that power is likely to affect adversely the careers of the officers number selected. On the other hand it was companytended by the learned Attorney-General that though the selection board was a statutory body, as it was number required to decide about any right, the proceedings before it cannot be companysidered quasi- judicial its duty was merely to select officers who in its opinion were suitable for being absorbed in the Indian Forest Service. According to him the word adjudge in rule 4 as well as Regulation 5 means found worthy of selection. 1 1959 1 Supp. S.C.R. 792. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power companyferred, the person or persons on whom it is companyferred, the framework of the law companyferring that power, the companysequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and companytrolled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The companycept of rule of law would lose its vitality if the instrumentalities of the State are number charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is numberhing but a requirement to act justly and fairly and number arbi- trarily or capriciously. The procedures which are companysidered inherent in the exercise of a judicial power are merely those which facilitate if number ensure a just and fair decision. In recent years the companycept of quasi-judicial power has been undergoing a radical change. What was companysidered as an administrative power some years back is number being companysidered as a quasi-judicial power. Me following observations of Lord Parker C.J. in Regina v. Criminal Injuries Compensation Board, Ex. Parte Lain 1 are instructive. With regard to Mr. Bridges second point I cannot think that Atkin, L.J. intended to companyfine his principle to cases in which the determination affected rights in the sense of enforceable rights. Indeed, in the Electricity Commissioners case, the rights determined were at any rate number immediately enforceable rights since the scheme laid down by the companymissioners had to be approved by the Minister of Transport and by resolutions of Parliament. The companymissioners nevertheless were held amenable to the jurisdiction of this companyrt. Moreover, as can be seen from Rex. v. Postmaster-General, Ex-parte Carmichael 2 and Rex. v. Boycott Ex parte Keasley 3 the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected. The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought number to be specifically defined. They have varied 1 1967 2 Q.B. 864, 881. 2 1928 1 K.B.291. 3 1939 2 K.B. 651. from time to time being extended to meet changing companyditions. At one time the writ only went to an inferior companyrt. Later its ambit was extended to statutory tribunals determining a lis inter parties. Later again it extended to cases where there was numberlis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only companystant limits throughout were that it was performing -a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from companytract, that is, from the agree- ment of the parties companycerned. Finally, it is to be observed that the remedy has number been extended, see Reg. v. Manchester Legal Aid Committee, Ex parte R. A. Brand Co. Ltd. 1 to cases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi-judicial character. In such a case this companyrt has jurisdiction to supervise that process. We have as it seems to me reached the position when the ambit of certiorari can be said to companyer every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment companyes fairly and squarely, within the jurisdiction of this companyrt. It is as Mr. Bridge said, a servant of the Crown charged by the Crown, by execu- tive instruction, with the duty of distributing the bounty of the Crown. It is clearly, therefore, performing public duties. The Court of Appeal of New Zealand has held that the power to make a zoning order under Dairy Factory Supply Regulation 1936 has to be exercised judicially, see New Zealand and Dairy Board v. Okita Co-operative Dairy Co. Ltd. 2 . This Court in The Purtabpore Co. Ltd. v. Cane Commissioner of Bihar and Ors. 3 held that the power to alter the area reserved under the Sugar Cane Control Order 1966 is a quasi-judicial power. With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does number become a new despotism, companyrts are gradually evolving 1 1952 2 Q.B. 413 2 1953 New Zealand Law Reports p. 366. 3 1969 2 S.C.R. 807. the principles to be observed while exercising such powers. In matters like these, public good is number advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible number desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case we shall ,assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selections on that basis. It is unfortunate that Naquishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be companysidered as the most -appropriate person to be in the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the selection board. He was one of the persons to be companysidered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did number participate in the deliberations of the companymittee when his name was companysidered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was companysidered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of this participation in the deliberations of the selection board there was a companyflict between his interest and duty. Under those circumstances it is difficult to believe that he companyld have been impartial. The real question is number whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is number sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into companysideration human probabilities and ordinary companyrse of human companyduct. It was in the interest of Naqishbund to keen out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates. The members of the selection board other than Naqishbund, each one of them separately, have filed affidavits in this Court swearing that Naqishbund in numbermanner influenced their decision in making the selections. In a group deliberation each member of the group is bound to influence the others, more so, if the member companycerned is a person with special knowledge. Ms bias is likely to operate in a subtle manner. It is numberwonder that the other members of the selection board are unaware of the extent to which his opinion influenced their companyclusions. We are unable to accept the companytention that in adjudging the suitability of the candidates the members of the board did number have any mutual discussion. It is number as if the records spoke of themselves. We are unable to believe that the members of selection board functioned like companyputers. At this stage it may also be numbered that at the time the selections were made, the members of the selection board other than Naqishbund were number likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government. Therefore there was numberoccasion for them to distrust the opinion expressed by Naqishbund. Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naqishbund. This takes us to the question whether the principles of natural justice apply to administrative proceedings similar to that with which we are companycerned in these cases. According to the learned Attorney General those principles have numberbearing in determining the validity of the impugned selections. In support of his companytention he read to us several decisions. It is number necessary to examine those decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is companystanlty expanding. The question how far the principles of natural justice govern administrative enquiries came up for companysideration before the Queens Bench Division in In re H. K. An Infant 1 . Therein the validity of the action taken by an Immigration Officer came up for companysideration. In the companyrse of his judgment Lord Parker, C.J. observed thus But at the same time, I myself think that even if an immigration officer is number in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is number, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require number merely impartiality, number merely bringing ones mind to bear on the problem, but acting fairly and to the limited extent that the circumstances of any particular case allow, and within the legislative frame work under 1 1967 2 Q.B. 617, 630. which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the companyrts do seem to have drawn a strict line in these matters according to whether there is or is number a duty to act judicially or quasi-judicially. In the same case Blain, J. observed thus I would only say that an immigration officer having assumed the jurisdiction granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction whether it be administrative, executive or quasi-judicial, fairly, by which I mean applying his mind dispassionately to a fair analysis of the particular problem and the information available to him in analysing it. If in any hypothetical case, and in any real case, this companyrt was satisfied that an immigration officer was number so doing, then in my view mandamus would lie. In State of Orissa v. Dr. Miss Binapani Dei and Ors. 1 Shah, J. speaking for the Court, dealing with an enquiry made as regards the companyrect age of a government servant, observed thus We think that such an enquiry and decision were companytrary to the basic companycept of justice and cannot have any value. It is true that the order is administrative in character,but even an administrative order which involves civil companysequences as already stated, must be made companysistently with the rules of natural justice after informing the first respondent of the case of the State The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas number companyered by any law validly made. In other words they do number supplant the law of the land but supplement it.-The companycept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely 1 numberone shall be a judge in his own case Nemo debet esse judex propria causa and 2 numberdecision shall be given against a party without affording him a reasonable hearing audi alteram partem . Very soon there- after a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and number arbitrarily 1 1967 2 S.C.R. 625. or unreasonably. But in the companyrse of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the companyrts that unless the authority companycerned was required by the law under which it functioned to act judicially there was numberroom for the application of the rules of natural justice. The validity of that limitation is number questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is number easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were companysidered administrative at one time are number being companysidered as quasijudicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decison in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George The University of Kerala and Ors. 1 the rules of natural justice are number embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the companystitution of the Tribunal or body of persons appointed for that purpose. Whenever a companynplaint is made before a companyrt that some principle of natural justice had been companytravened the companyrt has to decide whether the obser- vance of that was necessary for a just decision on the facts of that case. It was next urged by the learned Attorney-General that after all the selection board was only a recommendatory body. Its recommendations had first to be companysidered by the Home Ministry and .hereafter by the U.P.S.C. The final recommendations were made by the U.P.S.C. Hence grievances of the petitioners have numberreal basis. According to him while companysidering the validity of administrative actions taken, all that we have to see is whether the ultimate decision is just or number. We are unable to agree with the learned Attorney-General that the recommendations made by the selection board were of little companysequence. Looking at the companyposition of the board and the nature of the duties entrusted to it we have numberdoubt that its recommendations should have carried companysiderable weight with the U.P.S.C. If the decision of the selection board is held to have been vitiated, it is -clear to our mind that the final recommendation made by the Commission must also be held to have been vitiated. The recommendations made by the Union Public Service Commission cannot be disassociated from the selections made by the selection board which 1 1969 1 S.C.R. 317. is the foundation for the recommendations of the Union Public Service Commission. In this companynection reference may be usefully made to the decision in Regina v. Criminal Injuries Compensation Board Ex. Parte Lain 1 . It was next urged by the learned Attorney-General that the mere fact that one of the members of the Board was biased against some of the petitioners cannot vitiate the entire proceedings. In this companynection he invited our attention to the decision of this Court in Sumer Chand Jain v. Union of India and another 2 . Therein the Court repelled the companytention that the proceedings of a departmental promotion companymittee were vitiated as one of the members of that companymittee was favourably disposed towards one of the selected candidates. The question before the Court was whether the plea of mala fides was established. The Court came to the companyclusion that on the material on record it was unable to uphold that plea. In that case there was numberquestion of any companyflict between duty and interest number any members of the departmental promotion companymittee was a judge in his own case. The only thing companyplained of was that one of the members of the promotion companymittee was favourably disposed towards one of the companypetitors. As mentioned earlier in this case we are essentially companycerned with the question whether the decision taken by the board can be companysidered as having been taken fairly and justly. One more argument of the learned Attorney-General remains to be companysidered. He urged that even if we are to hold that Naqishbund should number have participated in the deliberations of the selection board while it companysidered the suitability of Basu, Baig and Kaul, there is numberground to set aside the selection of other officers. According to him it will be sufficient in the interest of justice if we direct that the cases of Basu, Baig and Kaul be reconsidered by a Board of which Naqishbund is number a member. Proceeding further he urged that under any circumstance numbercase is made out for disturbing the selection of the officers in the junior scale. We are unable to accept either of these companytentions. As seen earlier Naqishbund was a party to the preparation of the select list in order of preference and that he is shown as No. 1 in the list. To that extent he was undoubtedly a judge in his own case, a circumstance which is abhorrent to our companycept of justice. Now companying to the selection of the officers in the. junior scale service, the selections to both senior scale service as well as junior scale service were made from the same pool. Every officer who had put in a service of 8 years or more, even if he was holding the post of an Assistant Conservator of Forests was eligible for being selected for the senior scale service. In fact some 1 1967 2 Q.B. 864. Writ Petition No. 237/1966 decided on 4-5-1967. Assistant Conservators have been selected for the senior scale service. At the same time some of the officers who had put in more than eight years of service had been selected for the junior scale service. Hence it is number possible to separate the two sets of officers. For the reasons mentioned above these petitions are allowed and the impugned selections set aside. The Union Government and the State Government shall pay the companyts of the petitioners.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 882 of 1968. Appeal by special leave from the judgment and order dated July 1, 1966 of the Calcutta High Court in Civil Reference No. 20 of 1963. N. Mukherjee and Sunil Kumar Ghosh, for the appellant. K. Sen, Sukumar Ghose and Krishna Sen, for respondent No. 1. Sen, Sukumar Basu and P. K. Chakravarti, for respondent No. 2. Niren De, Attorney-General, V. A. Seyid Muhammad, R. H. Dhebar and S. P. Nayar, for the Union of India. The Judgment of the Court was delivered by Bhargava, J. Rama Sundari Debi, the first respondent in this appeal by special leave, instituted a suit for the ejectment of Indu Bhusan Bose appellant who was a tenant in premises No. 18, Riverside Road, owned by respondent No. 1, situated within the cantonment area of Barrackpore. The agreed rent was Rs. 250/per mensem but there was a dispute as to whether the owner or the tenant was liable to pay rates and taxes. On an application presented by the appellant, the Rent Controller fixed fair rent under s. 10 of the West Bengal Premises Tenancy Act No. XII of 1956 hereinafter referred to as the Act at Rs. 170/per month inclusive of all cantonment taxes, and, in appeal, the amount was enhanced to Rs. 188/- per month inclusive of all cantonment taxes. Respondent No. 1, in December, 1960, served a numberice on the appellant to quit and, on failing to get vacant possession, filed a suit in the Court of the Munsif. In the plaint, respondent No. 1 claimed that, regulation of house accommodation including companytrol of rents being a subject in entry No. 3 of List I of the Seventh Schedule to the Constitution, the State Legislature companyld number companypetently enact a law on the same subject for cantonment are-as, so that the appellant was pot entitled to protection under the Act which had been extended to that area by the State Government. It was urged that the extension of that State Act to the cantonment area was ultra vires and void. The Munsif, thereupon, made a reference under s. 113 of the Code of Civil Procedure to the High Court of Calcutta for decision of this companystitutional question raised in the suit before him. The High Court decided the reference by making a declaration that the numberification, whereby the State Government had extended the provisions of the Act to the Barrackpore cantonment area, was ultra vires and void. This is the decision of the High Court that has been challenged in this appeal. It has been companytended on behalf of the appellant that the High Court is number companyrect in holding that the field of legislation companyered by the Act, which is primarily companycerned with companytrol of rents and eviction of tenants, is included within the expression regulation of house accommodation in cantonment areas used in entry No. 3 of List I. That entry is as follows - Delimitation of cantonment areas, local self government in such areas, the companystitution and powers within such areas of cantonment authorities and the regulation of house accommodation including the companytrol of rents in such areas. The submission made is that regulation of house accommodation will number include within it laws or rules on the subject of relationship of landlord and tenant of buildings situated in the cantonment areas. On the other hand, according to the appellant, legislation on this subject can be made either under entry No. 18 of List II, or entries Nos. 6, 7 and 13 of List 111, so that a State ,Legislature is companypetent to legislate and regulate relationship between landlord and tenant even in cantonment areas. These relevant entries are reproduced below List II Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the companylection of rents transfer and allenation of agricultural land land improvement and agricultural loans companyonisation. List III Transfer of property other than agricultural land registration of deeds and documents. Contracts, including partnership, agency, companytracts of carriage, and other special forms of companytracts, but number including companytracts relating to agricultural land. Civil procedure, including all matters included in the Code of Civil Procedure at the companymencement of this Constitution, limitation and arbitration. On the scope of entry 3 of List 1, the argument advanced is that Parliament is empowered to legislate in respect of house accommodation situated in cantonment areas only to the extent that that house accommodation is needed for military purposes and laws are required for requisitioning or otherwise obtaining possession of that accommodation for such purposes. In the alternative. the submission- made is that regulation of house accommodation by parliamentary law should be companyfined to houses acquired,. requisitioned or allotted for military purposes. This -entry 3, according to the appellant, should number be read as giving Parliament the power to legislate, on the relationship of landlord and tenant in respect of houses situated in cantonment areas if such houses are let out privately by a private owner to his tenant and have numberhing at all to do with the requirements of the military. We are unable to accept this submission. The language of the entry itself does number justify any such interpretation. In the entry, when power is granted to Parliament to make laws for the regulation of house accommodation in cantonment areas, there are numberqualifying words to indicate that the house accommodation, which is to be subject to such legislation, must be accom- modation required for military purposes, or must be accommodation that has already been acquired, requisitioned or allotted to the military. In fact, if a legislation in respect of any cantonment was to be undertaken by Parliament for the first time under this entry, there would be, at the time of that legislation, numberhouse in the cantonment already acquired, requisitioned or allotted for military purposes and, if the interpretation sought to be put on behalf of the appellant were accepted, the power of Parliament to pass laws cannot be exercised by Parliament at all. It is also significant that, in the entry, various items, which can be the subject-matter of legislation by Parliament, are mentioned separately, and these are - Delimitation of cantonment areas local self-government in such areas the companystitution and powers within such areas of cantonment authorities and the regulation of house accommodation including the companytrol of rents in such areas. In numbere of these clauses there is any specification that the legislation is to be companyfined to areas or accommodation required for military purposes. When legislating in respect of local self government in cantonment areas, it is obvious that Parliament will have to legislate for the entire cantonment area including portions of it which may be in possession of civilians and number military authorities or military officers. Similarly, the powers of the cantonment authorities, which companyld be granted by legislation by Parliament cannot be companyfined to those areas or buildings which are in actual possession of military authorities or officers and must be in respect of the entire cantonment area including those buildings and lands which may be in actual ownership as well as occupation of civilians. In these circumstances, there is numberreason to narrow down the scope of legislation on regulation of house accommodation and companyfine it to houses which are required or are actually in possession of military authorities or military officers. The power to regulate house accommodation by law must extend to all house accommodation in the cantonment area irrespective of its being owned by, or in the possession of, civilians. In fact, if a law were to be made for the first time under this entry, all the houses would be either vacant or occupied by owners or occupied by tenants of owners under private agreements and the law, when first made, will have to govern such houses. The scope of the expression regulation of house accommodation in this entry cannot, therefore, be companyfined as urged on behalf of the appellant. It is, in the alternative, companytended that, even if the expression regulation of house accommodation in this entry includes regulation of houses in private occupation, it should number be interpreted as giving Parliament the power even to legislate for eviction of tenants who may have occupied the houses under private arrangement with the owners. It should be companyfined to legislation for the purpose of obtaining possession and allotment of such accommodation to military authorities or military officers. We cannot accept that the, word regulation can be so narrowly interpreted as to be companyfined to allotment only and number to other incidents, such as termination of existing tenancies and eviction of persons in possession of the house accommodation. The dictionary meaning of the word regulation in the Shorter Oxford Dictionary is the act of regulating and the word regulate is Given the meaning to companytrol, govern or direct by rule or regulation. This entry, thus, gives the power to Parliament to pass legislation for the purpose of directing or companytrolling all house accommodation in cantonment areas. Clearly, this power to direct or companytrol will include within it all aspects as to who is to make the companystructions under what companyditions the companystructions can be altered, who is to occupy the accommodation and for how long, on what terms it is to be occupied, when and under what circumstances the occupant is to cease to occupy it, and the manner in which the accommodation is to be utilised. All these are ingre- dients of regulation of house accommodation and we see numberreason to hold that this word regulation has number been used in this wide sense in this entry. It appears that, in the Government of India Act, 1935, the companyresponding entry No. 2 in List I of the Seventh Scheiule to that Act was similar to this entry No. 3 of List I of the Seventh Schedule to the, Constitution, but the expression including centrol of rents which is number in entry No. 3 of List I within brackets did number exist. An argument was sought to be built on it that regulation of house accommodation was number intended to companyer companytrol of rents when that expression was used in the companyresponding entry in the Government of India Act, and that this expression used in the Constitution should also be interpreted to companyer the same field, so that, but for the addition made within brackets, Parliament companyld number have legislated for companytrol of rents of house accommodation within cantonment areas. It is further urged that, if the expression regulation of house accommodation is interpreted as number including within it regulation or companytrol or rents, it should also be held that it will number include regulation of eviction of private tenants. This argument is based on the premise that the words including companytrol of rents was introduced in entry 3 of List I of the Seventh Schedule to the Constitution for the purpose of en- larging the scope, of the legislative authority of Parliament and making it wider than that of the Federal Legislature under the Government of India Act. Such an assumption is number necessarily justified. It may be that the words including the companytrol of rents were introduced by way of abundant caution or to clarify that the regulation of house accommodation is wide enough to include companytrol of rents. The addition may have been made so as to companycentrate attention on the fact that legislation was needed for companytrol of rents in the situation that existed at the time when the Constitution was passed by the Constituent Assembly. It has to be remembered that cantonments are intended to be and are, in fact, military enclaves and regulation of occupation of house accommodation in the cantonment areas by parliamentary law is necessary from the point of view of security of military installations in cantoriments and requirements of military authorities and personnel for accommodation in such areas. Such a purpose companyld only be served by ensuring that Parliament companyld legislate in respect of house accommodation in cantonment areas in all its aspects, including regulation of grant of leases, ejectment of lessees, and ensuring that the accommodation is available on proper terms as to rents. On an interpretation of the companytents of the entry itself, therefore, we are led to the companyclusion that Parliament was given the exclusive power to legislate in respect of house accommodation in cantonment areas for regulating the accommodation in all its aspects. In this companynection, we may refer to three decisions which explain the object of legislation on the subject of rent companytrol. In Prout v. Hunter 1 , Scrutton, L.J., dealing with the legislation during the war in England, held- Great public feeling was aroused by the exorbitant demands for rent that were made and the ejectments for numberpayment of it, with the result that Parliament passed the Rent Restriction Acts with the two-fold object, 1 of preventing the rent from being raised above the prewar standard, and 2 of preventing tenants from being turned out of their houses even if the term for which they had originally taken them had expired. 1 1924 2 K.B. 736. In Property Holding Company Limited v. Clark 1 , it was held - There are certain fundamental features of all the Rent Restriction legislation, or at any rate of the legislation from 1920 to 1939. The two most important objects of policy expressed in it are 1 to protect the tenant from eviction from the house where he is living, except for defined-reasons and on defined companyditions 2 to protect him from having to pay more than a fair rent. The latter object is achieved by the provisions for standard rent with a only permitted in- creases, b the provisions about furniture and attendant liabilities from the landlord to the tenant which would undermine or nullify the standard rent provisions. The result has been held to be that the Acts operate in rem upon the house and companyfer on the house itself the quality of ensuring to the tenant a status of irremovability. In this description of the distinguishing characteristics companyferred by statute upon the clouse, the most salient is the tenants security of tenure-his protection against eviction although the scope of the statutory policy about a fair rent must also be borne in mind especially in companynexion with the provisions relating to furniture, attendance, services and board. In Curl v. Angelo and Another 2 , Lord Greene, R., dealing with Rent Restrictions Act, held The companyrts have had to companysider what the over-riding purpose and intention of the Acts are, and I cannot put it in a more clear or authoritative way than by using the words of Scrutton, L.J., in Skinner v. Geary 1931 2 B., 546,560 , that the object was to protect the person residing in a dwelling-house from being turned out of his home. All these three cases clearly show that whenever any legislation is passed relating to companytrol of rents, that legislation can be effective and can serve its purpose only if it also regulates eviction of tenants. Consequently, when in entry 3 of List I the power is granted to Parliament specifically to legislate on companytrol of rents, that power cannot be effectively exercised unless it is held that Parliament also has the power to regulate eviction of tenants whose rents are to be companytrolled. Such power must, therefore, be necessarily read in the expression regulation of house accommodation. Of companyrse, it has to be remembered that this power 1 1948 1 K.B. 630. 2 1948 2 All E.R. 189. reserved for Parliament is to be exercised in respect of house accommodation situated in cantonment areas only and number other areas the legislative power in respect of which is governed by entries either in List II or in List III. This view that we are taking is also borne out by the historical background provided by the legislation relating to cantonments and house accommodation in cantonments in India. Carnduff in his book on Military and Cantonment Law in India has indicated how the need for legislating with the object of overcoming difficulties experienced by military officers in obtaining suitable accommodation in cantonments came under companysideration, and has stated In the early days of the British dominion in India, the camps, stations, and posts of the field army gradually developed into cantonments, where troops were regularly garrisoned. The areas so occupied were at first set apart exclusively for the military and intended for occupation by them only but, by degrees, number-military persons were admitted land was taken possession of by them, and houses were built under companyditions laid down by the Government from time to time. These companyditions were undoubtedly framed with the main object of rendering accommodation always primarily available for the military officers whose duties necessitated their residence within cantonment limits. p. clxii . He goes on to relate that a Bill which ultimately became the Contonments Act, 1889, originally companytained a set of provisions on the subject, insisting on the prior claim of military officers to occupy houses in cantonments and proposing that disputes as to the rent to be paid and the repairs to be executed should be referred to, and settled by, companymittees of arbitration. That part of the Bill was, however, omitted as it evoked companysiderable opposition and a separate measure was, companysequently, taken up, but number till after many years of discussion. The new Bill was introduced in the Governor-Generals Council in 1898, and was passed into law as the Cantonments House-Accommodation Act II of 1902. The main provision in this Act was that, on the Act being applied to any cantonment, every house situated therein became liable to appropriation at any time for occupation by a military officer. It recognised the paramount claim of the military authorities to insist upon houses in cantonments being, where necessary, made primarily available for occupation by the military officers stationed therein. In addition, a provision was made in s. 10 that numberhouse in any cantonment or part of a cantonment was to be occupied for the purposes of a hospital, bank, hotel, shop or school, or by a railway administration, without the previous sanc- tion of the General Officer of the Command, given with the companycurrence of the Local Government. This provision, thus, clearly regulated the letting out of houses in a cantonment even for some of the civilian purposes, such as hospital, bank, etc. The reason obviously was that it was companysidered inappropriate that a house occupied for such a purpose should be required to be vacated in order to make the house available -for military officers. Keeping the primary object of facilitating availability of house accommodation for military officers in view, even private letting out was, thus, regulated at that earliest stage. Subsequently came the Cantonments House-Accommodation Act VI of 1923 which was in force when the Government of India Act was enacted, as well as at the time when the Constitution came in-to force. This Act also companytained similar provisions which permitted military authorities to direct an owner to lease out a house to the Central Government, to require the existing occupier to vacate the house and to refrain from letting out any house for purposes of a hospital, school, school hostel, bank, hotel, or shop, or by a railway administration. a companypany or firm engaged in trade or business or a club, without the previous sanction of the Officer Commanding the District given with the companycurrence of the Commissioner or, in a Province where there are numberCommissioners, of the Collector. This Act also, thus, interfered with and regulated letting out of house accommodation by owners for civilian purposes even though, at the time of letting, the house was number required for any military purpose. It was in the background of this legislative history that provision was made in the Government of India Act in entry 2 of List I of the Seventh Schedule reserving for the Federal Legislature the power to legislate so as to regulate house accommodation in cantonment areas. and the same power with further clarification was reserved for Parliament in entry 3 of List I of the Seventh Schedule to the Constitution. Obviously, it companyld number be intended that Parliament should number be able to pass a law companytaining provisions similar to the provisions in these earlier Acts which did interfere with private letting out of house accommodation in cantonment areas by owners for certain purposes. Another aspect that strengthens our view is that if we were to accept the interpretation sought to be put on behalf of the appellant that the power of Parliament is companyfined to legislation for the purpose of obtaining house accommodation in cantonment areas for military purposes and excludes legislation in respect of house accommodation number immediately required for military purposes, all that Parliament will be able to do will be to make provision for acquisition or requisition of house accommodation. On the house accommodation being acquired or requisitioned, it will be available for use by military authorities. Such power, obviously, companyld riot be intended to be companyferred by entry 3 in List I when the same power is specifically granted companycurrently to both Parliament and the State Legislatures under entry 42 of List III of the Seventh Schedule to the Constitution. On behalf of the appellant, reliance was placed on some decisions of some of the High Courts in support of the proposition that the power of Parliament under entry 3 of List I does number extend to regulating the relationship between landlord and tenant which power vests in the State Legislature under entry 18 of List II. The first of these cases is A. C. Patel v. Vishwanath Chada 1 where the Bombay High Court was dealing with entry 2 of List I of the Seventh Schedule to the Government of India Act, 1935 and entry 21 of List 11 of that Act. The Court was companycerned with the applicability of the Bombay Rent Restriction Act No. 57 of 1947 to cantonment areas. Opinion was first expressed that the Rent Restriction Act had been passed by the Provincial Legislature under Entry 21 of List II and reliance was placed on the English interpretation Act to hold that land in that entry would include buildings so -as to companyfer jurisdiction on the Provincial Legislature to legislate in respect of house accommodation. Then, in companysidering the effect of Act 57 of 1947, the Court said - As the preamble of the Act sets out, the Act was passed with a view to the companytrol of rents and repairs of certain premises, of rates of hotels and lodging houses, and A evictions. Therefore, the pith and substance of Act LVII of 1947 is to regulate the relation between landlord and tenant by companytrolling rents which the tenant has got to pay to the landlord and by companytrolling the right of the landlord to evict his tenant. Can it be said that when the Provincial Legislature was dealing with these relations between landlord and tenant, it was regulating house accommodation in cantonment areas ? In our opinion, the regulation companytemplated by Entry 2 in List I is regulation by the State or by the Government. Requisitioning of property, acquiring of property, allocation of property, all that would be regulation of house accommodation, but when the Legislature merely deals with relations of landlord and tenant, it is number in any way legislating with regard to house accommodation. The house accommodation remains the same, but the tenant is protected quae his landlord. We have felt companysiderable doubt whether the power of legislating on relationship between landlord and tenant in respect of house accommodation or buildings would -appropriately fall in Entry 21 of List II of the Seventh Schedule to the Government of India I.L.R. 1954 Bom. 434. 3SupCI69- 15 Act, 1935, or in the companyresponding Entry 18 of List II of the Seventh Schedule to the Constitution. These Entries permit legislation in respect of land and explain the scope by equating it with rights in or over land, land tenures including the relation of landlord and tenant, and the companylection of rents. It is to be numbered that the relation of landlord and tenant is mentioned as being included in land tenures and the expression land tenures would number, in our opinion, appropriately companyer tenancy of buildings or of house accommodation. That expression is only used with reference to relationship between landlord and tenant in respect of vacant lands. In fact, leases in respect of number- agricultural property are dealt with in the Transfer of Property Act and would much more appropriately fall within the scope of Entry 8 of List III in the seventh Schedule to the Government of India Act read with Entry 10 in the same List, or within the scope of Entry 6 of List III in the Seventh Schedule to the Constitution read with Entry 7 in the same List. Leases and all rights governed by leases, including the termination of leases and eviction from pro- perty leased, would be companyered by the field of transfer of property and companytracts relating thereto. However, it is number necessary for us to express any definite opinion in this case on this point because of our view that the relationship of landlord and tenant in respect of house accommodation situated in cantonment areas is clearly companyered by the Entries in List I. In the Constitution, the effect of Entry 3 of List I is that Parliament has exclusive power to make laws with respect to the matters companytained in that Entry, numberwithstanding the fact that a similar power may also be found in any Entry in List 11 or List III. Article 246 of the Constitution companyfers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List 1, numberwithstanding the companycurrent power of Parliament and the State Legislature, or the exclusive power of the State Legislature in Lists III and 11 respectively. The general power of legislating in respect of relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List II or Entries 6 -and 7 of List III is subject to the overriding power of Parliament in respect of matters in List 1, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated in cantonment areas, Parliament alone can legislate and number the State Legislatures. The submission made that this interpretation will lead to a companyflict between the powers companyferred on the various Legislatures in Lists I, II and III has also numberforce, because the reservation of power for Parliament for the limited purpose of legislating in respect of cantonment area only amounts to exclusion of this part of the legislative power from the general powers companyferred on State Legislatures in the other two Lists. This kind of exclusion is number companyfined only to legislation in respect of house accommodation in cantonment areas. The same Entry gives Parliament jurisdiction to make provision by legislation for local self-government in cantonment areas which is clearly a curtailment of the general power of the State Legislatures to make provision for local self government in all areas of the State under Entry 5 of List R. That Entry 5 does number specifically exclude cantonment areas and, but for Entry 3 of List I, the State Legislature would be companypetent to make provision for local government even in cantonment areas. Similarly, power of the State Legislature to legislate in respect of i education, including universities, under Entry 1 1 of List 11 is made subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III ii regulation of mines and mineral development in Entry 23 of List II is made subject to the provisions of List I with respect to regulation and development under the companytrol of the Union iii industries in Entry 24 of List 11 is made subject to the provisions of Entries 7 and 52 of List 1 iv trade and companymerce within the State in Entry 26 of List II is made subject to the provisions of Entry 33 of List III v production, supply and distribution of goods under Entry 27 of List 11 is made subject to the provisions of Entry 33 of List III and vi theatres and dramatic performances cinemas in Entry 33 of List 11 is made subject to the provisions of Entry 60 of List I. Thus, the Constitution itself has specifically put down entries in List II in which the power is expressed in general terms but is made subject to the provisions of entries in either List I or List III. In these circumstances, number-anomaly arises in holding that the exclusive power of Parliament for regulation of house accommodation including companytrol of rents in cantonment areas has the effect of making the legislative powers companyferred by Lists 11 and III subject to this power of Parliament. In this view, we are unable to affirm the decision of the Bombay High Court in A. C. Patels case 1 which is based on the interpretation that Entry 2 in List I of the Seventh Schedule to the Government of India Act only permitted laws to be made for requisitioning of property, acquiring of property and allocation of property only. The same High Court, in a subsequent case in F. E. Darukhanawalla v. Khemchand Lalchand 2 , placed the same interpretation on Entry 3 of List I of the Seventh Schedule to the Constitution. That decision was also based on the same interpretation of the scope of regulation of house accommodation as was accepted by that Court in the earlier case. The Nagpur High Court in Kewalchand v. Dashrathlal 3 pro- ceeded on the assumption that the decision in the case of A. Patel v. Vishwanath Chada 1 companyrectly defined the scope of Entry I.L.R. 1954 Bom. 434. 2 I.L.R. 1954 Bom. 544. I.L.R. 1956 Nag. 618. 3 Sup. CI 69-16. 2 in List I of the Seventh Schedule to the Government of India Act, and companysidered the narrow question whether the relationship of landlord and tenant specifically mentioned in Entry 21 in List It of that Act companyered the requirement of permission to serve a numberice for eviction in regulating the relation of landlord and tenant and fell within the scope of Entry 21 in List II or in Entry 2 in List I of that Act. The Court held that it-substantially fell in Entry 21 in List II and number in Entry 2 in List I. That Court did number companysider it necessary to express -any opinion on the question whether the expression regulating of house accommodation included something besides what Chagla, C.J., had said was its ambit in the case of A. C. Patel v. Vishwanath Chada 1 , but expressed the opinion that the expression companyld number be stretched to include the aspect of the -relation of landlord and tenant involved in that particular case. It is clear that, in, that case also, a narrow interpretation of the expression regulation of house accommodation was accepted, because it appears that there was numberdetailed discussion of the full scope of that expression. Similar is the decision of the Patna High Court in Babu Jagtanand v. Sri Satyanarayanji and Lakshmiji Through the Shebait and Manager Jamuna Das 2 . In fact, this last case merely followed the decision a the Bombay High Court in the case of F. E. Darukhanawalla v. Khemchand Lalchand 3 . On the other hand, the Rajasthan High Court in Nawal Mal v. Nathu Lal 4 held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings is to be found in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and number in Entry 18 of List 11, and that that power was circumscribed by the exclusive power of Parliament to legislate on the samesubject under Entry 3 of List I. That is also the view which the Calcutta High Court has taken in the judgment in appeal before us. We think that the decision given by the Calcutta High Court is companyrect and must be upheld. The appeal fails and is dismissed with companyts payable to plaintiff respondent only. K.P.S. I.L. R. 1954 Bom. 434. I.L.R. 40 Patna 625. I.L.R. 1954 Bom. 544. I.L.R. 11 Raj.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1526 of 1968. Appeal under S. 116-A of the Representation of the People Act, 1951 from the judgment and order dated May 4, 1968 of the Madhya Pradesh High Court in Election Petition No. 39 of 1967. L. Sanghi, Sobhag Mal Jain and B. P. Maheshwari, for the appellant. R. Gokhale, P. L. Dubey, Rameshwar Nath and Mahinder Narain, for respondent No. 1. C. Parashar, for respondent No. 4. The Judgment of the Court was delivered by Shah, J. At the general elections held in February 1967, Brijraj Singh first respondent in this appeal was declared elected to a seat in the Madhya Pradesh Legislative Assembly from the Sabalgarh Constituency defeating his rival candidate Raja Pancham Singh by 1706 votes. The appellant Ram Dayal who is a voter in the companystituency moved an election petition in the High Court of Madhya Pradesh for an order setting aside the election on two grounds 1 that the numberination paper of one Dhani Ram was illegally rejected by the Returning Officer and 2 that Brijraj Singh and his agents companymitted several companyrupt practices in relation to the election. A third ground that Dataram third respondent in this appeal when his numberination was accepted was below the age of 25 and was on that account incompetent to stand for election, was sought to set up a new ground made after the expiry of the period prestion. The application was disallowed by the High Court. The High Court held that an application for amendment which sought to be set up by an application for amendment of the election peticribed for filling an election petition cannot be entertained. On a companysideration of the evidence the High Court rejected the other grounds, and dismissed the petition. The appellant has appealed to this Court. An election petition has, under S. 81 1 of the Representation of the People Act, 1951, to be filed within 45 days of the date of the publication of the result of the election. An application for setting aside the election, that Dataram was below the age of 25 and on that account the election was liable to be set aside under S. 100 1 d i of the Act made on August 15, 1967, would plainly have been barred, and by amendment the ground companyld number be permitted to be added. This Court in Harish Chandra Bajpai v. Triloki Singh 1 held that the Election Tribunal has power to allow an amendment in respect of particulars of illegal and companyrupt practices, or to permit new instances to be included. provided the grounds or charges are specifically stated in the petition, but its power to permit amendment of a petition under O. VI r. 17 of the Code of Civil Procedure will number be exercised so as to allow new grounds or charge, to be raised or the character of the petition to be so altered as to make it in substance a new petition, if a fresh petition on those allegations would on the date of the proposed amendment be barred. By the amendment a new ground for setting aside the election was sought to be introduced, and the High Court was right in rejecting the application for amendment. The plea that the rejection of the numberination paper of Dhani Ram by the Returning officer was illegal has numbersubstance. On January 19, 1967 Dhani Ram delivered to the Returning Officer two numberination papers signed by him. Each numberination paper bore a thumb impression of one Gokla as the proposer. But the thumb impressions were number authenticated or attested in the presence of the Returning officer or any other officer specified in the Rules. The Returning Officer rejected the numberination papers. Sec. 33 1 of the Representation of the People Act, 1951, requires that each candidate shall deliver to the returning officer a numberination paper companypleted in the prescribed form and signed by the candidate and by an elector of the companystituency as proposer. The expression sign is defined in s. 2 1 of the Act as amended by Act 27 of 1956 as meaning in relation to a person who is unable to write his name authenticate in such manner as may be prescribed. Rule 2 2 of the Conduct of Election Rules, 1961 provides For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if- 1 1957 S.C.R. 370. a he has placed a mark on such instrument or other paper in the presence of the Returning officer or the Presiding officer or such other officer as may be specified in this behalf by the Election Commission. b such officer on being satisfied as to his identity has attested the mark as being the mark of that person. Where a person is unable to write his name, he may place his mark on the instrument or other paper and the requirements of law are companyplied with, provided he puts the mark in the presence of the Returning officer or the Presiding officer or such other officer as may be specified in that behalf by the Election Commission and such officer on being satisfied as to his identity attests the mark as being the mark of that person. Gokla was illiterate. He impressed his thumb mark on the numberination paper but it was number placed in the presence of any of the designated officers, number was there any authentication or attestation of the thumb-mark The requirement under s. 33 1 of the Act that the numberination -shall be signed by the candidate and by the proposer is mandatory. Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Attestation is number a mere technical or unSubstantial, requirement within the meaning of s. 36 4 of the Act and cannot be dispensed with. The attestation and the satisfaction must exist at the stage of presentation and omission of such an essential feature may number be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all companyld have been Rattan Anmol Singh and Another v. Atma Ram Others. 1 . The numberination papers of Dhani Ram were filed on the last day fixed for receiving the numberination papers. Not being attested as required by law on the date of filing, the defect companyld number be rectified at the time of scrutiny. Evidence of witnesses for the appellant who deposed that that at the date of scrutiny. Gokla was present outside the office of the Returning Officer and that Dhani Ram brought to the numberice of the Returning Officer that Gokla was present and that his signature may be attested, and that the Returning officer declined to accede to the request need number be companysidered. The Returning officer companyld number allow Dhani Ram or his proposer to rectify the defect in the numberination papers after the last date of numberination. Several companyrupt practices were set up in the petition. The companyrupt practices relied upon by the appellant in this appeal may be broadly classified under three heads 1 1955 1 S.C.R. 481. 1 that on January 19, 1967, Brijraj Singh paid Rs. 250 to Sone Ram respondent No. 5 at Morena and successfully persuaded him number to file his numberination paper. 2 that Brijraj Singh and his agents toured the companystituency in a jeep fitted with a microphone and visited many villages and delivered speeches reflecting upon the character and companyduct of Raja Pancham Singh a candidate sponsored by the Congress Party. One Chhotey Lal respondent No. 4 was made to companytest the election by Brijraj Singh to divide the votes of Raja Pancham Singh and that Chhotey Lal who supported the candidature of Brijraj Singh made statements between January 20, 1967 and February 19, 1967 and distributed leaflets companytaining statements of fact relating to the personal character and companyduct of Raja Pancham Singh which were false to the knowledge of Chhotey Lal or who did number believe them to be true, and that the leaflets were issued and circulated with the companysent of Brijraj Singh, and 3 that the Maharaja Scindia of Gwalior accompanied by Brijraj Singh visited several villages in a helicopter and addressed election meetings in support of the candidature of Brijraj Singh and the Maharaja acted as his agent and incurred expenditure for carrying on election propaganda if the expenditure incurred for the purpose of obtaining the use of the helicopter and a fleet of motor cars used by him were taken into account, such expenses being incurred or authorised by Brijraj Singh would companysiderably exceed the limit prescribed by the statute. In the view of the High Court Chhotey Lal did companymit a company- rupt practice in that he distributed on January 29, 1967 at Kelaras village leaflets companytaining statements of fact relating to the personal companyduct of Raja Pancham Singh, but it was number proved that Chhotey Lal companytested, the election at the instance of Brijraj Singh to divide the votes of Raja Pancham Singh or that he was the agent at any time of Brijraj Singh number was it proved that Chhotey Lal had ever supported the candidature of Brijraj Singh or that any pamphlet of the nature circulated by Chhotey Lal was issued or circulated by Brijraj Singh. In that view the High Court held that the election of Brijraj Singh was number materially affected by the candidature of Chhotey Lal. Me High Court rejected the companytention of the appellant that Brijraj Singh companymitted other companyrupt practices alleged. The High Court accord- ingly passed an order declaring that the appellant had failed to establish that Brijraj Singh had companymitted any companyrupt practice with which he was charged. The High Court dismissed the election petition filed by the appellant with companyts, but declared that the 4th respondent Chhotey Lal was guilty of the companyrupt practice within the meaning of s. 123 4 of the Act and was on that account disqualified for a period of six years from the date of the order under s. 8A of the Act. Against that order this appeal has been preferred by the appellant. Chhotey Lal has number appealed against the order recorded against him. He is impleaded as a party-respondent and he has appeared before this Court through companynsel. At the hearing companynsel appearing for Chhotey Lal urged that the finding of the High Court that Chhotey Lal was guilty of the companyrupt practice charged against him is companytrary to evidence. But in the absence of an appeal filed by Chhotey Lal the ground cannot be permitted to be agitated by him. The appeal was filed by the appellant challenging the order of the High Court refusing to set aside the election of Brijarj Singh on the three grounds set out hereinbefore. the scope of the appeal cannot be expanded by permitting chhotey lal who companyld have but has number chosen to appeal, to plead that he has number companymitted any acts amounting to a companyrupt practice. The case that Brijraj Singh gave Rs. 250 to Sone Ram and induced him to withdraw his candidature is unreliable. One Shanker Lal deposed that on January 19, 1967, he met Brijraj Singh and Sone Ram in the companypound of the office of the Collector, Morena, and the former induced Sone Ram number to companytest the election and offered to pay a bribe of Rs. 250, and paid Rs. 250 to Sone Ram. According to the witness there were several persons present at the time when the bribe was offered and paid, but numbere of those persons was called as a witness on behalf of the appelant. One Tikaram who was alleged to be present was examined on behalf of Brijraj Singh and he denied that any such offer was made or bribe paid. Sone Ram also denied that he had received any bribe from Brijraj Singh. He stated that he had borrowed Rs. 200 from his maternal uncle to deposit the amount for his candidature but since his maternal uncle declined to incur any further expenditure and dissuaded him from companytesting the election he had to abandon his candidature. In the opinion of the Trial Judge the witness Shanker Lal was an untruthful witness and we see numberreason to disagree with that view. We may number turn to the plea that Brijraj Singh made false allegations against the personal companyduct and character of Raja Pancham Singh orally and by circulating pamphlets, on which a great deal of argument was advanced before us. It was the case Sup, C.1.169-5 of the appellant that Brijraj Singh and his two workers Laxmi chand and Shankarlal visited several villages between February 2, 1967 and February 26, 1967, in companynection with the election campaign and made false statements against the character and companyduct of Pancham Singh in the meetings held in those villages, and in door to door canvassing in those villages. Those allegations are denied by Brijraj Singh and by Laxmichand and Shankar lal. The case of the appellant was that these allegations were made in the companyrse of the election propaganda in ten villages. but evidence was led in respect of statements made in six villages. It is said that Brijraj Singh and his supporters visited the village Narhela and held a meeting in that village. One Dhaniram stated that a meeting was held at the village Narhela, but the witness did number say that either Brijraj Singh or his workers made any allegations against the personal character of Pancham Singh. According to this witness Brijraj Singh merely requested the persons assembled therein the. meeting to vote for him. Witness Ghansu stated that a meeting was held at the village Narhela and the same was addressed by Brijraj Singh and Laxmichand and that these two persons stated that Pancham Singh was associating with dacoits and had misappropriated money belonging to a school and had got the school closed and that whenever any member of the legislative assembly sought to visit him be set his dogs at him. In the election petition there was numberreference to any meeting held at Narhela or of any offending statements made at any such meeting. It was stated in paragraph III a of the election petition, in setting out the details of the companyrupt practices, that the first respondent accompanied by Laxmichand and Shankerlal toured in a jeep fitted with a microphone and visited the village Narhela on February 2, 1967 and canvassed votes going from door to door. The witness Ghansu did number belong to Narhela, and numberwitness from village Narhela was examined. Laxmichand, Shankerlal and Brijlal Singh denied that any statement against the personal companyduct and character of Pancham Singh was made by them at Narhela either in any meeting or in door to door canvassing. Phoolsingh-the only witness examined on behalf of the appellant-did number support his case that Singh at Budhreta. About the village Khirla, witness Kesharsingh stated that Brijraj Singh and Laxmichand had held meetings and had -made statements against the personal companyduct and character of Pancham Singh. But the witness did number belong to the village Khirla he is a resident of Pahadgarh village which is at a distance of fifteen miles from Khirla. No witness from Khirla was examined. Witness Dataram said that at a meeting held at Sujarma, Brijraj Singh had made any statements derogatory of Pancham Pancham Singh. But the testimony of the witness who is said to be companystantly under police surveillance is unreliable. About the meeting held at Village Kelaras the appellant examined three witnesses-Narayan, Kanhaiyalal and Sardarsingh. The first two. witnesses said numberhing about any statement made about the personal character of Raja Pancham Singh at the meeting. Sardarsingh supported the case, of the appellant, but the testimony of the witness was inconsistent with the case of the appellant. About the meeting held at village Kulouli the appellant examined witness Badri who stated that both Brijraj Singh and Laxmichand had made statements derogatory of Pancham Singh. His explanation about his presence at the village Kulouli was apparently untrue and his testimony was otherwise unreliable. The learned Judge summarised the evidence of the witnesses. on behalf of the appellant and companycluded that the appellant had, miserably failed to establish that Brijraj Singh and his agents Laxmichand and Shankar Lai had made any statements derogatory to the personal character of Pancham Singh. In the view of the learned Judge it was number proved that Brijraj Singh and his two agents had made statements that Pancham Singh was an associate of dacoits, number was the statement that Pancham Singh had misappropriated the funds of the school proved. The learned Judge, also held that the statement alleged to have been made by Brijraj Singh and his agents that Pancham Singh was responsible for getting the school at Pahadgarh closed and that he lets loose ferocious dogs towards the persons who go to see him were trivial and did number involve any moral turpitude, and even assuming that those statements were made, numbercorrupt practice companyld we said to have been companymitted on that account under s. 123 4 of the Act. The learned Trial Judge found that Chhotey Lal companymitted a companyrupt practice by distributing pamphlets casting reflections upon the personal character of Pancham Singh. But in the view of the learned Trial Judge there was numberreliable evidence to prove that Chhotey Lal acted on behalf of Brijraj Singh. or that the latter defrayed the expenses of the pamphlet or that the agents of Brijraj Singh distributed the offending pamphlets. The learned Judge has carefully companysidered the evidence and numberserious argument has been advanced before us on that part of the case which may justify as in taking a different view. Not a word was said that the expenses incurred by Chhotey Lal for getting the pamphlets printed were reimbursed, number was the evidence of the witnesses Sanwaldas Gupta, Kalyansingh Tyagi examined on behalf of the appellant hat Brijraj Singh and his agents circulated the Pamphlets true. The learned Judge observed that the story that out of the 2,500 companyies of the pamphlets printed, 2,000 companyies of the pamphlet had been handed over by Chhotey Lal to Brijraj Singh on the night on January 19, 1967, was a clumsy and crude invention of these wo witnesses, and was utterly false and unreliable. After company- sidering the various improbabilities and the discrepancies relating to the testimony of the witnesses Sanwaldas Gupta and Kalyansingh Tyagi, the learned Judge observed that these witnesses invented lies and did their best to introduce clumsy and crude improvements at the stage of evidence with the object of bolstering up the appellants case and through him that of Raja Pancham Singh. In his view the story that the pamphlet Annexure A was issued or circulated with the companysent of Brijraj Singh was false. The learned Judge also found on a companysideration of the evidence that at numberstage did Chhotey Lal support the candidature of Brijraj Singh and that it was number proved that the pamphlet Annexure A was ever issued or circulated with the companysent ,of Brijraj Singh. In his view Brijraj Singh had numberconnection -with the printing and publication of the pamphlet and on that account the plea of companyrupt practice set out and founded on the ,circulation of the pamphlet was number proved. We see numberreason to disagree with the view expressed by the learned Judge. It was then urged that the Maharaja Scindia of Gwalior in- curred companysiderable expenditure as agent of Brijraj Singh in canvassing votes and the expenditure so incurred was liable to be included in the election expenses of Brijraj Singh. It was claimed -that the, Maharaja and the Rajmata of Gwalior as agents of Brijraj Singh took a leading part in canvassing votes in different villages .and in doing so used a helicopter and a fleet of motor cars and spent large sums of money which were number disclosed in the account ,of election expenses filed by the St respondent Brijraj Singh. Brijraj Singh had companytested the election as an independent candidate. But the appellant says that the, Maharaja and the Rajmata of Gwalior addressed election meetings and in those meetings they declared that Brijraj Singh was sponsored as a candidate by them, and that the voters should support Brijraj Singh. Brijraj Singh in his evidence stated that the Maharaja had the Central Election office of Maharaja Gwalior representing the alliance of various political parties and individuals opposed to the Congress candidate and in propagating its views and policy during the election this Organisation also supported the candidates who ,opposed Pancham Singh. There was numberreliable evidence that the candidature of Brijraj Singh was sponsored by the Maharaja and the Rajmata of Gwalior. The opinion expressed by the witness Dataram cannot do duty for evidence in support of the case of the appellant. Sanwaldas Gupta and Kalyansingh Tyagi stated that they had requested the Maharaja to adopt Chhotey Lal as his candidate for election but they were told by the Maharaja that he had already decided to set up Brijral Singh as his candidate -and that they also should actively -support him. The evidence of these witnesses was found to be unreliable by the High Court. In our judgment the High Court has rightly rejected their testimony. It was said that in certain villages speeches were made by Brijraj Singh that he was set up as a candidate by the Rajmata of Gwalior. But there is numberreliable evidence in support of that case. Reliance was strongly placed upon visits made by the Rajmata of Gwalior at villages Kelaras and Sabalgarh on Feb. 4 or Feb. 5, 1967, with a fleet of motor cars and about the speeches delivered in those villages declaring that Brijraj Singh was set up by her and that the voters should vote for him -and strengthen her hands. It is also said that the Maharaja visited Kelaras, Pahadgarh, Sujarma, Budhreta, Kulhouli, Sabalgarh, Jhunpura and Narhela on Feb. 11 or 12, 1967 in a helicopter and addressed meetings in those villages and in Ms speeches declared that Brijraj Singh was sponsored as a candidate by him and his mother -and the voters should vote for him. A large number of witnesses Keshrisingh, Narayan Sardar- singh, Dhaniram, Phoolsingh, Kanhaiyalal, Mata Prasad, Dwarka Prasad, Sanwaldas Gupta, Kalyansingh Tyagi, besides the appellant, were examined in support of that case. Brijraj Singh admitted that on Feb. 4 or 5, 1967, the Rajmata had visited the villages Kelaras and Sabalgarh and had addressed meetings in those villages. But he denied that she declared in those meetings that he was set up as a candidate by her. He further stated that the Maharaja had visited on Feb., 11 or 12, 1967, five villages, Kelaras, Pahadgarh, Budhreta, Jhundpura and Sabalgarh in a helicopter and addressed meetings in those villages. But in numbere of those meetings did he declare that Brijraj Singh was a candidate set up by the Maharaja. The witnesses examined on behalf of the appellant were, in view of their general tenor, found unreliable. The learned Judge therefore stated his companyclusion that on Feb. 4 or 5, 1967 the Rajmata of Gwalior visited two villages, Kelaras and Sabalgarh and addressed meetings there and her -son the Maharaja visited five villages, namely, Kelaras, Pahadgarh, Budhreta, Thundpura and Sabalgarh in a helicopter on or about Feb. II or 12, 1967 and addressed meetings there, but there was numberreliable evidence to prove that Brijrai Singh was sponsored as a candidate by the Rajmata or the Maharaja of Gwalior. In the view of the learned Judge the testimony of the witnesses on behalf of the appellant was so thoroughly unreliable that numberreliance companyld be placed upon it. He companycluded, after companysidering the evidence of Budharam, that Brijraj Singh was an independent candidate and companytested the election as an independent candidate, and even though meetings were addressed by the Maharaja and his mother-the Rajmata-they did number say that Brijraj Singh was set up as their candidate. We have carefully gone through the evidence of the witness and heard the arguments ad at the Bar and see numberreason to disagree with the view taken by the learned Judge. The evidence of the witnesses that Brijraj Singh travelled with the Maharaja of Gwalior in his helicopter and visited several villages for his election campaign was also unreliable and was, in our judgment, rightly disbelieved. The evidence shows that when the Maharaja visited the village Kelaras the only occupants in the helicopter were the Maharaja and the pilot and that Brijraj Singh was number in the helicopter when the Maharaja visited Kelaras. Similarly about the village Jhundpura there is evidence that Brijraj Singh was number with the Maharaja in the helicopter. About the village Budhreta the witness Phoolsingh deposed that Brijraj Singh was in the helicopter travelling with the Maharaja. But from the cross-examination of the witness it appears that his testimony was worthless. The testimony of Phoolsingh was inconsistent with the testimony of Ramcharanlal-Sarpanch of the village. Similarly about the visit to Sabalgarh village two of the witnesses examined were Budhram and Sanwaldas Gupta. Budhram said numberhing about Brijraj Singh accompanying the Maharaja in the helicopter. Sanwaldas Gupta supported the case of the appellant, but having regard to his interest in the appellant and the general unreliability of his testimony, he companyld number be believed. About the village Pahadgarh, according to Mata Prasad examined on behalf of the appellant, Brijraj Singh was in the helicopter and the witness claimed that he had taken photographs of Brijraj Singh while he was in the helicopter. We have seen the original photographs Exts. P-11A, P-11B, P-12A, P-12B, P- 13A and P-14A which are in respect of the journeys by the helicopter, the helicopter getting ready for take off, of the meetings addressed by the Maharaja and of the occupants in the helicopter. Some of the photographs are so hazy and indistinct that it is impossible to identify any one in the group. For instance the photograph Ext. P-13A in which it is claimed that Brijraj Singh was in the helicopter shows merely a smudge and it is impossible to say that any one was sitting in the helicopter. In the view of the learned Judge the witness Mata Prasad and Dwarka Prasad had been tutored to give false testimony that Brijraj Singh had accompanied the Maharaja at the time when the helicopter landed and also when it took off and on the companysideration of the evidence it was established that Brijraj Singh was number with the Maharaja of Gwalior either at the time when the helicopter landed at the five villages--Kelaras, Jhundpura, Budhreta, Sabalgarh and Pahadgarh or when the helicopter took off. The learned Trial Judge disbelieved the witness Mata Prasad. We have scrutinized the evidence of Mata Prasad and have seen the original photographs and have numberdoubt that the learned Judge was right in holding that the testimony of the witness Mata prasad was unreliable. In the absence of any companynection between the canvassing activities carried on by the Maharaja and the Rajmata with the candidature of Brijraj Singh, it is impossible to hold that any expenditure was incurred for Brijraj Singh which was liable to be included in the election expenses of the first respondent. Under s. 123 6 of the Representation of the People Act, 1951, the incurring or authorizing of expenditure in companytravention of S. 77 is -a companyrupt practice and s. 77 provides, insofar as it is material Every candidate at an election shall, either by himself or by his election agent, keep a separate and companyrect account of all expenditure in companynection with the election incurred or authorised by him or by his election agent between the date of publication of the numberification calling the election and the date of declaration of the result thereof, both dates inclusive. 2 The total of the said expenditure shall number exceed such amount as may be prescribed. Unless it is established that the expenditure was incurred in companynection with the election by the candidate or by his, election agent or was authorised by him it is number liable to be included under s. 77 of the Representation of the People Act. We agree with the High Court that under s. 77 1 only the expenditure incurred or authorised by the candidate himself or by his election agent is required to be included in the account or return of election expenses and thus expenses incurred by any other agent or person without any- thing more need number be included in the account or return, as such incur-ring of expenditure would be purely voluntary. Assuming that expenditure was incurred by the Maharaja and the Rajmata for the purpose of canvassing votes against Raja Pancham Singh, in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of Brijraj Singh or the expenditure was authorised by Brijraj Singh it was number liable to be included in the account of the election expenses. We agree with the High Court that there is numberevidence on the record to prove that Brijraj Singh actually spent any money on the helicopter used by the Maharaja in visiting the five villages and the two cars used by the Rajmata in visiting the two villages. There is numberevidence on the record direct or circumstantial to prove that Brijraj Singh had authorised the Maharaja and his mother to incur the expenditure on the helicopter and the two cars. It is number necessary then to companysider whether the expenditure incurred by the Maharaja and the Rajmata of Gwalior in respect of the helicopter and the motor cars can be said to be expenditure incurred by a political party for carrying on propaganda to promote their views and their party interest and their policies and to educate the electoral companystituency, and on that account is number liable to be included in the election expenses of the candidate. Having carefully companysidered the evidence and having heard the arguments advanced at the Bar at companysiderable length, we are ,of the view that the appellant has failed to establish that Brijraj Singh was set up as a candidate by the Maharaja or the Rajmata of Gwalior as their numberinee or that the Maharaja and the Rajmata had incurred any expenditure as an agent of Brijraj Singh or the expenditure incurred by the Maharaja and the Rajmata of Gwalior was authorized by Brijraj Singh and was liable to be included in his account of election expenses under s. 77 of the Representation of the People Act, 1951. The appeal fails and is dismissed with companyts in favour of the first respondent. The order of companyts in favour of the 4th respondent passed by the High Court is set aside.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 5. of 1967. Appeal by special leave from the judgment and order dated May 11, 1966 of the Calcutta High Court in Criminal Revision No. 188 of 1966. Sukumar Ghose, for the appellant. N. Mukherjee, for respondents Nos. 1 to 8. K. Chakravarti, for respondent No. 9. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court at Calcutta allowing the criminal revision and acquitting the respondents of the charge under S. 447, I.P.C. The only question which arises in the, present appeal is whether on the facts and circumstances of the case the intent to annoy the appellant has been established. The law on the point is number settled by this Court in Mathuri and Others v. State of Punjab 1 . Das Gupta, J., speaking for the Court, after reviewing the authorities, stated the law thus The companyrect position in law may, in our opinion, be stated thus In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry that it is number sufficient for that purpose to show merely that the natural companysequence of the entry was likely to be annoyance, intimidation or insult, and that this likely companysequence was known to the person entering that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to companysider all the relevant circumstances including the presence of knowledge that its natural companysequences would be such annoyance, intimidation or insult and including also the probability of something else then the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry. This judgment was number brought to the numberice of the High Court in this case. In view of this judgment it is number necessary to re. view the earlier High Court cases. The appellant gave the history of the dispute between himself and the respondents in his evidence. He stated that he and his three brothers filed title suit No. 404 of 1951 in the first Court of Munsiff at Serampur against the respondent Fagu Shaw praying for ejectment and khas possession of the land in dispute the, respondent Fagu Shaw companytested the suit on May 23, 1954, a decree of ejectment was passed against the judgment and decree the respondent Fagu Shaw preferred an appeal before the District Judge and the appeal was dismissed the respondent Fagu Shaw preferred a second appeal to the Calcutta High Court which was dismissed summarily the appellant executed the decree and in September 1962 when the Nazir of Serampur Civil Court with process servers went to take delivery of possession of the case, 1 1964 5 S.C.R. 916, 927. land the respondent resisted and refused to give possession however on February 3, 1963, the Nazir with police help went to the spot for delivery of possession and the appellant obtained actual physical possession. The appellant further stated that the land was in their possession from February 3, 1963 upto February 17, 1963, when the present occurrence took place. It appears that the respondents trespassed on the land on the, night of February 16, 1963, and on February 17, 1963, they were found making preparations for companystruction of bamboo structures on the case land and some bamboo pegs had already been posted. Now the question arises whether the intention of the respon- dents was to annoy the appellant or number within the meaning of s. 441, I.P.C. It seems to us that on the facts of this case there cannot be any doubt that the intention of the respondents was to annoy the appellant who was in possession of the case land. There companyld have been numberhope on the part of the respondents that they would be able to stay in possession of the land. The litigation started in 1951 and it was on February 3, 1963 that the appellant was able to obtain possession. It is only after two weeks after that day that the respondents chose to trespass and start companystruction. In this case we cannot find any other domi- nant intention which prompted the trespass. The High Court seems to have proceeded on the footing that the appellant was number in actual possession of the property and further that the law requires that the companyplainant must number only be in actual possession but also be present at the time of trespass so as to bring the offence within the provisions of s. 441/447, I.P.C. In our view the High Court was in error in holding that the appellant was number in actual possession of the property. The land in dispute was lying vacant after the appellant obtained possession and the actual possession must be of the appellant. Further the law does number require that the intention must be to annoy a person who is actually present at the time of the trespass. In the result the appeal is allowed, the judgment of the High Court set aside and the judgment and order of t he Magistrate 1st Class Serampur, which was affirmed by the learned Additional Sessions Judge, Hoogly, restored. We may mention that the Magistrate sentenced the respondents to pay a fine of Rs. 100 each and in default to suffer rigorous imprisonment for one month.	Case appeal was accepted by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 6 of 1969. Appeal from the judgment and order dated May 2, 1968 of the Delhi High Court in Criminal Revision Nos. 339-D of 1965 and 185-D of 1968. Sardar Bahadur Saharya and Yougindra Khushalani, for the appellant. C. Mazumdar and Yogeshwar Dayal, for the respondents. The Judgment of the Court was delivered by Sikri, J. This appeal by certificate of fitness granted by the High Court of Delhi arises out of an application under S. 488, Cr. P.C. filed on September 4, 1963, in the Court of Magistrate, 1st Class, Delhi, by four children of the respondent, Nanak Chand. The first applicant, Chandra Kishore, was born on January 23, 1942, the second, Ravindra Kishore, was born on September 23, 1943, the third Shashi Prabha, was born on February 23, 1947, and the fourth, Rakesh Kumar, was, born on September 21, 1948. The first two applicants were thus majors at the time of the appli- cation, the third though a minor at the time of the application was a major on the date of the order passed by the Magistrate, i.e., on March 26, 1965. The learned Magistrate allowed the application and ordered the, respondent, Nanak Chand, to pay Rs. 35 p.m. to Chandra Kishore for four months only, Rs. 36 p.m. to Ravindra Kishore for 3 years only in case he companytinued his medicine studies, Rs. 45 p.m. to Shashi Prabha as her maintenance allowance and education expenses and Rs. 45 p.m. to Rakesh Kumar as his maintenance allowance and education expenses, from March 26, 1965. Both the applicants and the respondent, Nanak Chand, filed revisions against the order of the Magistrate, to the Additional Sessions Judge, who dismissed the revision petition filed by the respondent, Nanak Chand, and accepted the revision petition of the applicants. The Additional Sessions Judge submitted the case to the High Court with the recommendation to enhance the maintenance allowance of the applicants in terms of the proposals made by him. The Additional Sessions Judge observed that the maintenance under s. 488 did number include the companyts of companylege education, and therefore he did number propose to allow Chandra Kishore and Ravindra Kishore the expenses of their companylege education. But taking into companysideration the income of the respondent and the status of the family, the Additional Sessions Judge proposed to allow Chandra Kishore and Ravindra Kishore Rs. 100 p.m. each as maintenance allowance until they finished their companyrses of Com. and M.B.B.S., respectively. He further proposed to allow to Rakesh Kumar and Shashi Prabha each a monthly maintenance allowance of Rs. 50 until Shashi Prabha was able to earn or was married, whichever was earlier, and until Rakesh Kumar was able to maintain himself. The High Court accepted the reference made by the learned Additional Sessions Judge, and dismissed the criminal revision filed by the respondent. The High Court granted the certificate under art. 134 1 c of the Constitution because there is companyflict of opinion on the question of the interpretation to be given to the word child in s. 489, Cr. P.C. The learned companynsel for Nanak Chand has raised three points before us first, that s. 488, Cr. P.C. stands impliedly repealed by s. 4 of the Hindu Adoptions and Maintenance Act, 1956 78 of 1956 --hereinafter referred to as the Maintenance Act--insofar as it is applicable to Hindus secondly, that the word child in s. 488 means a minor and thirdly, that the maintenance fixed for Chandra Kishore and Ravindra Kishore was based on wrong principles and was excessive inasmuch as expenses for education have been taken into companysideration. Section 4 of the Maintenance Act reads Save as otherwise expressly provided in this Act,- a b any other law in force immediately before the companymencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions companytained in this Act. The learned companynsel says that s. 488 Cr. P.C., insofar as it provides for the grant of maintenance to a Hindu, is inconsistent with Chapter III of the Maintenance Act, and in particular, s. 20, which provides for maintenance to children. We are unable to Sup. Cl/69-7 see any inconsistency between the Maintenance Act and S. 488, Cr. P.C. Both can stand together. The Maintenance Act is an act to amend and companyify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and numberody ever suggested that Hindu Law, as in force immediately before the companymencement of this Act, insofar -as it dealt with the maintenance of children, was in any way inconsistent with s. 488, Cr. P.C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has numberrelationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State 1 , before the Calcutta High Court in Mahabir Agarwalla v. Gitia Roy 2 and before the Patna High Court in Nalini Ranjan v. Kiran Ran 3 . The three High Courts have, in our view, companyrectly companye to the companyclusion that s. 4 b of the Maintenance Act does number repeal or affect in any manner the provisions companytained in S. 488, Cr. P.C. On the second point there is sharp companyflict of opinion amongst the High Court and indeed amongst the Judges of the same High Court. In view of this sharp companyflict of opinion we must examine the terms of s. 488 ourselves. Section 488 1 reads as follows 488 1 . If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such manthly rate, number exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. We may also set out sub-s. 8 of S. 488 because some companyrts have placed reliance on it 488 8 . Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child. The word Child is number defined in the Code itself. This word has different meanings in different companytexts. When it is used in A.I.R. 1963 All. 355. 2 1962 2Cr.L.J.528. A.I.R. 1965 Pat. 442. companyrelation with father or parents, according to Shorter Oxford Dictionary it means As companyrelative to parent. The offspring, male or female, of human parents. Beaumont, C.J., in Shaikh. Ahmed Shaikh Mahomed v. Fatma 1 observed The word child according to its use in the English language has different meanings according to the companytext. If used without reference to parentage, it is generally synonymous with the word infant and means a person who has number attained the age of majority where the word child is used with reference to parentage, it means a descendant of the first degree, a son or a daughter and has numberreference to age. In certain companytexts it may include descendants of more remote degree, and be equivalent to issue. But, at any rate, where the word child is used in companyjunction with parentage it is number companycerned with age. No one would suggest that gift to all my children or to all the children of A should be companyfined to minor children. In s. 488 of the Criminal Procedure Code the word is used with reference to the father. There is numberqualification of age the only qualification is that the child must be unable to maintain itself. In my opinion, there is numberjustification for saying that this section is companyfined lo children who are under the age of majority. We agree with these observations and it seems to us that there is numberreason to depart from the dictionary meaning of the word. As observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur v. Jaswant Singh 2 Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. If the companycept of majority is imported into the section a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section. If this companycept is number imported, numberharm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself. The older a person becomes the more difficult it would be to prove that he is unable to maintain himself. It is true that a son aged 77 may claim maintenance under the section from a father who is 97. It is very unlikely to happen but if it does happen and the father is T.L.R. 1943 Bom. 38, 40. 2 1964 2 S.C.R. 73, 84. able to maintain while the son is unable to maintain himself numberharm would be done by passing an appropriate order under s. 488. We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is number as if such cases have number arisen. As long ago as 1873, Pearson, J. In the matter of the Petition of W. B. Todd 1 had to deal with a major son who was deaf and dumb, and he had numberhesitation in granting an order of maintenance. The same companyclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh v. Emperor 2 and he allowed maintenance to a young man of about 20 who was very lame having a deformed foot. We have seen numbercase in which a man of 77 has claimed maintenance and -we think, with respect, that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance. It is number necessary to review all the case law. The latest judgment which was brought to our numberice is that of the Madras High Court in Amirithammal v. Marimuthu 3 in which Natesan, J. has written a very elaborate judgment. He has referred to all the Indian cases and a number of English cases and statutory provisions both in England and in India. We are unable to derive any assistance from the statutory provisions referred to by him or from the English Law on the point. He relied on the use of the word itself in s. 488 as showing that what was meant was a minor child. We are unable to attach so much significance to this word. It may well be that it is simpler or more companyrect to use the word itself rather than use the words himself or herself. We may mention that Das Gupta, J., in Smt. Purnasashi Devi Nagendra Nath 4 and Mudholkar, J., in State v. Ishwarlal 5 came to the same companyclusion as we have done. In view of the reasons given above we must hold that the word child in s. 488 does number mean a minor son or daughter and the real limitation is companytained in the expression unable to maintain itself. Coming to the third point raised by the learned companynsel we are of the view that the learned Additional Sessions Judge and the High Court were right in taking into companysideration the existing situation the situation being that at the time the order was -passe Chandra Kishore was a student of M.Com. and Ravindra Kishore was a student of M.B.B.S. companyrse. We need number decide in this 1 1873 5 N.W.P. High Court Reports 237. 2 6 T.C. 960. A.I.R. 1967 Mad. 77. A.T.R. 1950 Cal. 465 T.L.R. 1951 Nag. 474. case whether expenses for education can be given under s. 488 because numbersuch expenses have been taken into companysideration in fixing the maintenance in this case. It has number been shown to us that the amount fixed by the learned Additional Sessions Judge and companyfirmed by the High Court is in any way excessive or exorbitant. In the result the appeal fails and is dismissed.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 942 and 943 of 1966. Appeals by special leave from the judgment and order dated june 18, 1965 of the Kerala High Court in Writ Appeals Nos. 139 and 140 of 1964. Jagdish Swarup, Solicitor-General, T.A. Ramachandran and Sharma, for the appellant in both the appeals . T. Desai, M.C. Chacko, A.K. Verma, J.B. Dadachanji, and O.C. Mathur, for respondent No. 1 in C.A. No. 942 of 1966 . G. Pudissery, for respondents Nos. 2 and 3 in C.A. No. 942 of 1966 . B. Dadachanji, for respondents Nos. 1 and 2 in C.A. NO. 943 of 1966 . G. Pudissery, for respondents Nos. 7 and 8 in C.A. No. 943 of 1966 . The Judgment of the Court was delivered by Grover, J. These two appeals by special leave involve a companymon question relating to the validity of a numberification issued by the Government of Kerala in August 1963 empowering certain revenue officials including the Taluka Tahsildar to exercise the powers of a Tax Recovery Officer under the Income Tax Act 1961, hereinafter called the Act. The numberification was expressly stated to be effective from 1st April 1962--a date prior to the date of the numberification. The facts in one of the appeals C.A. 942/66 may be stated One Kunchacko of Alleppey allowed the income tax dues from him to fall into arrears. The Income Tax Officer took steps to recover the arrears through the Tahsildar. Certain shares standing in the name of the assessee were attached by the Tahsildar. The first respondent Ponnoose claimed to have obtained a decree for a certain sum against the assessee. He also got the shares standing in the name of the assessee attached in execution proceedings, Ponnoose filed a petition under Art. 226 of the Constitution in the High Court of Kerala in which he challenged the action taken by the revenue officials including the Tahsildar for getting the shares, which had been attached, sold for satisfaction of the income tax dues of the assessee. The learned Single Judge held that the numberification empowering the Tahsildar to exercise the powers of a Tax Recovery Officer under the Act with retrospective effect was invalid. Consequently the attachments made by the Tahsildar were quashed. This view was affirmed by a division bench in appeal. The Act came into force on first April 1962. Section 2 44 defined the expression Tax Recovery Officer in the following. terms-- Tax Recovery Officer means-- a Collector an additional Collector or any other officer authorised to exercise the powers of a Collector under any law relating to Land revenue for the time being in force in a State or any gazetted officer of the Central or a State Government who may be authorised by the Central Government by numberification in the Official Gazette, to exercise the powers of a Tax Recovery Officer. Section 4 of the Finance Act, 1963 substituted a new definition for the original definition of Tax Recovery Officer. It was provided that the new definition shall be and shall be deemed always to have been substituted. The new definition was as follows Tax Recovery Officer means-- a Collector or an additional Collector any such officer empowered to. effect recovery of arrears of land revenue or other public demand under any law relating to land revenue or other public demand for the time being in force in the State as may be authorised by the State Government, by general or special numberification in the Official Gazette, to exercise the powers of a Tax Recovery Officer any Gazetted Officer of the Central or a State Government who may be authorised by the Central Government, by general or special numberi- fication in the Official Gazette, to exercise the powers of a Tax Recovery Officer. The impugned numberification dated August 14, 1963 which was published in the Kerala Gazette dated August 20, 1963 referred to the powers companyferred by sub-clause ii of clause 44 of s. 2 of the Act read with sub-rule 2 of rule 7 of the Income tax Certificate Proceedings Rules, 1962 and authorised the various revenue officials mentioned therein including the Taluk Tahsildar to exercise the powers of a Tax Recovery Officer under the Act in respect of the arrears etc. The companycluding portion was, This numberification shall be deemed to have companye into force on the first day of April 1962. The Tahsildar had effected attachment of the shares subsequent to first April 1962 but prior to August 14, 1963. In other words on the date on which he had effected attachment he was number a Tax Recovery Officer but he got the powers of a Tax Recovery Officer by virtue of the numberification dated August 14, 1963. The short question for determination, therefore, was and is whether the State Government companyld invest the Tahsildar with the powers of a Tax Recovery Officer under the aforesaid provisions of the Act with effect from a date prior to the date of the numberification, i.e., retroactively or retrospectively. Now it is open to a sovereign legislature to enact laws which have retrospective operation. Even when the Parliament enacts retrospective laws such laws are-in the words of Willes J. in Phillips v. Eyre 1 --no doubt prima facie of questionable policy and companytrary to the general principle that legislation by which the companyduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought number to change the character of past transactions carried on upon the faith of the then existing law. The companyrts will number, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may number be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority companycerned to make a rule or regulation with retrospective effect. But where numbersuch language is to be found it has been held by the companyrts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect see Subba Rao J. in Dr. lndramani Pyarelal Gupta v. W. R. Nathu 1 40 Law J.Rep. N.S. Q.B. 28 at p. 37. Others 1 --the majority number having expressed any different opinion on the point Modi Food Products Ltd. v. Commissioner of Sales Tax U.P. 2 India Sugar Refineries Ltd. v. State of Mysore 3 and General S. Shivdev Singh Another v. The State of Punjab Others 4 . it can hardly be said that the impugned numberification promulgates any rule, regulation or bye-law all of which have a definite signification. The exercise of the power under sub-clause ii of cl. 44 of s. 2 of the Act is more of an executive than a legislative act. It becomes, therefore, all the more necessary to companysider how such an act which has retrospective operation can be valid in the absence of any power companyferred by the aforesaid provision to so perform it as to give it retrospective operation. In Strawboard Manufacturing Co., Ltd. v. Gutta Mill Workers Union 5 an industrial dispute had been referred by the Governor to the Labour Commissioner or a person numberinated by him with the direction that the award should be submitted number later than April 5, 1950. The award, however, was made on April 13, 1950. On April 26, 1950 the Governor issued a numberification extending the time up to April 30. It was held that in the absence of a provision authorising the State Government to extend from time to time the period within which the Tribunal or the adjudicator companyld pronounce the decision the State Government had numberauthority to extend the time and the award was, therefore, one made without jurisdiction and a nullity. This decision is quite apposite and it is difficult to hold in the present case that the Taluka Tehsildar companyld be authorised by the impugned numberification to exercise powers of a Tax Recovery Officer with effect from a date prior to the date of the numberification. It may next be companysidered whether by saying that the new definition. of Tax Recovery Officer substituted by s. 4 of the Finance Act, 1963 shall be and shall be deemed always to have been substituted it companyld be said that by necessary implication or intendment the State Government had been authorised to invest the officers mentioned in the numberification with the powers of a Tax Recovery Officer with retrospective effect. The only effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted. The legal fiction companyld number be extended beyond its legitimate field and the aforesaid words occurring in s. 4 of the Finance Act 1963 companyld number be companystrued to embody companyferment of a power for a retrospective authorisation by the State in the absence of any express 1 1963 S.C.R. 721. 2 A.I.R. 1956 All. 35. A.I.R. 1960 Mys, 326 4 1959 P.L.R. 514. 5 1953 S.C.R. 439. provision in s. 2 44 of the Act itself. It may be numbericed that in a recent decision of the Constitution Bench of this Court in B. 8. vadera etc., v. Union of India Others 1 it has been observed with reference to rules framed under the proviso to Art. 309 of the Constitution that these rules can be made with retrospective operation. This view was, however, expressed owing to the language employed in the proviso to Art. 309 that any rules so made shall have effect subject to the provisions of any such Act. As has been pointed out the clear and unambiguous expressions used in the Constitution, must be given their full and unrestricted meaning unless hedged in by any limitations. Moreover when the language employed in the main part of Art. 309 is companypared with that of the proviso it becomes clear that the power given to the legislature for laying down the companyditions is identical with the power given to the President or the Governor, as the case may be, in the matter of regulating the recruitment of Government servants and their companyditions of service. The legislature, however, can regulate the recruitment and companyditions of service for all times whereas the President and the Governor can do so only. till a provision in that behalf is made by or under an Act of the appropriate legislature. As the legislature can legislate prospectively as well as retrospectively there can be hardly any .justification for saying that the President or the Governor should number be able to make rules in the same manner so as to give them prospective as welt as retrospective operation. For these reasons the ambit and companytent of the rule making power under Art. 309 can furnish numberanalogy or. parallel to the present case.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 579 of 1966. Appeal by special leave, from the judgment and order dated August 20, 1964 of the Calcutta High Court in Civil Rule No. 1715 of 1961. N. Mukherjee, for the appellant. C. Mitra and S. C. Majumdar, for respondent No. 1. The Judgment of the Court was delivered by Hidayatullah, C.J. This is an appeal by special leave from the judgment and order of the High Court of Calcutta, August 20, 1964, in an application under S. 115 of the Code of Civil Procedure, reversing the judgment of the Subordinate Judge, Howrah. The facts are as follows One Haji Abdul Karim, grandfather of respondents 2 to 4 exe- cuted a Wakf al-al-aulad on March 30, 1917. He companystituted himself as the first Mutwali and named his two sons and widow as Mutwalis after his own death. The Wakf provided for the benefit of the family and after the extinction of all the family a scheme for feeding,the poor. On February 14, 1956 the present appellant Ayesha Bibi filed a suit claiming -1 /16th of the property as a sharer after the death of her husband Abdul Hamid. This claim was made against respondents 2 to 4 who were the Mutwalis. Ayesha Bibi joined the Commissioner of Wakfs, West Bengal as a defendant to the suit. The suit was filed in the Court of Munsif, Howrah and reliefs claimed were a declaration that the Wakf was invalid, inoperative and void and that its enrolment in the Wakf Office was wrongly done and was of numberavail. She also asked for a permanent injunction restaining the Commissioner of West Bengal and other respondents from interfering with the possession of the property. The Commissioner of Wakfs appeared in answer to the numberice of the suit and filed a written-statement on April 4, 1956. He companytended that the properties were governed by the Wakf which was valid and also that he was entitled to a numberice under S. 80 of the Code of Civil Procedure before the suit was filed. He stated that although he was entitled to a numberice under s. 70 1 of the Bengal Wakfs Act, 1934 it was, number necessary to add him as a defendant and he denied companylusion between himself and the other defendants. He observed that the other defendants were interested in secularising the wakf property for their own selfish ends. On November 15, 1957 an application for amendment of the relief against the Wakf Commissioner was made to which the Wakfs Commissioner objected. In his objections he stated that the suit was of a companylusive nature as was apparent from the nature of the pleadings of the plaintiff and defendants other than himself. The petition, however, was allowed. No action was taken by the Commissioner to get that order set aside. On May 15, 1958 the parties to the suit, other than the Commissioner, filed an application of companypromise and May 22, 1958 was fixed for decision. On the same day an application for striking off the name of the Commissioner from the array of the defendants was made. This was heard in the presence of the companynsel for the Commissioner and he did number object to the name being struck, off. As a result the name of the Commissioner was struck off -as a defendant. The suit was also decreed the same day on companypromise declaring the Wakf to be invalid and void and granting a perpetual injunction. On June 20, 1958 the Commissioner made an application under s. 70 4 of the Act for a declaration that the decree was void as numbernotice was given to him under s. 70 1 of the Act. The appellant objected but on April 20, 1960 the Munsif allowed the application and declared the decree to be void. The appellant appealed to the Court of the Subordinate Judge, Howrah and the appeal was allowed. It was held that the application under s. 70 4 was incompetent as the Commissioner was present in the suit and the companypromise decree was passed with the knowledge of the Commissioner and there was numberneed for a fresh numberice to him under s. 70 1 of the Act. The Commissioner then filed a revision under s. 115, C.P.C. and a learned single Judge of the High Court by the order, number under appeal, reversed the decision of the Subordinate Judge and restored the decree of the Munsif. The order is challenged in this appeal. Before we companysider the question whether the Commissioners application under s. 70 4 was proper it is necessary to examine the scheme of the Wakf Act. The Act was passed to make provision for proper administration of Wakf properties in Bengal. It applies to all wakfs whether created before or -after the companymencement of the Act, any property of which is situated in Bengal. By Chapter 11 a Wakf Board is companystituted and a whole-time Officer called the Commissioner of Wakfs is appointed. Chapter III lays down the functions of the Board and the Commissioner and one of the functions under S. 34 is the protection of Wakfs-al- al-aulad. Chapter IV deals with the enrolment of the Wakfs for which purpose a register of Wakfs is maintained. Under s. 45 the Commissioner has the power to enrol wakfs and also to amend the register from time to time. Under s. 46A the decision of the Commissioner is final subject to a decision of a companypetent companyrt. Chapter V deals with wakf accounts and Chapter VI with statements of wakfs al-al-aulad. Chapter VII creates a bar to transfer of immovable property of wakfs. Chapter VIII lays down the, duties of Mutwalis with other ancillary matters. Chapter,IX deals with finance and Chapter X deals with judicial proceedings. Chapter XI, XII and XIII deal with amendments and appealed, rule-making power of the Provincial Government and power of the Board to make by laws and include some miscellaneous provisions. We are companycerned in this case with Chapter X which deals with judicial proceedings. Section 69 in this Chapter provides as follows Bar to companypromise of suit or proceeding without sanction of Court. No suit or proceeding by or against a mutwali as such in any Court shall be companypromised without the sanction of the trying Court. Section 70 then provides Notice of suits etc., to be given to the Commissioner. In every suit or proceeding in respect of any wakf property or of a mutwalli as such except -a suit or proceeding for the recovery of rent by or on behalf of the mutwalli the Court shall issue numberice to the Commissioner at the companyt of the party instituting such suit or proceeding. Before any wakf property is numberified for sale in execution of a decree, numberice shall be given bv the Court to the Commissioner. Before any wakf property is numberified for sale for the recovery of -any revenue, cess, rates or taxes due to the Crown or to local authority numberice shall be given to the Commissioner by the Court, Collector or other person under whose order the sale is numberified. In the absence of a numberice under sub- section 1 any decree or order passed in the suit or proceeding shall be declared void, if the Commissioner, within one month of his companying to know of such suit or proceeding, applies to the Court in this behalf. In the absence of a numberice under sub-section 2 or sub-section 3 the sale shall be declared void, if the Commissioner within one month of his companying to know of the sale, applies in this behalf to the Court, or other authority under whose order the sale was held. Section 71 enables the, Commissioner to join as a party in any lit gation on his own application and to companyduct or defend certain suits or proceedings on behalf of or in the interest of the wakf. It will be numbericed from the analysis of the Act that the Commissioner has a definite duty to perform in all suits in which the interests of the wakfs are involved. Sub-s. 1 of s. 70 requires that in every suit or proceedings in respect of any wakf property the companyrt shall issue a numberice to the Commissioner. This was done here because the Commissioner was a party and a summons had gone to him from the Court. It is companytended before us that this was number a numberice but only a summons but we that numberhing much turns upon this distinction. The Commissioner had numberice of the proceedings. He appeared in the case, defended the wakf, characterised the suit -as companylusive and he was fully company- nizant of- all that was happening in the suit. The learned Judge in the High Court also held that there was numberneed to give the Commissioner another numberice under sub-s. 1 because the Commissioner had already numberice of the suit. The question, therefore, is whether in the -absence of a numberice under sub-s. 1 the decree companyld be declared to be void. Here the argument of the Commissioner in the High Court was that he had been removed from the array of the defendants and that he was, therefore, entitled to a special numberice of the petition of companypromise in the case. It is to be numbericed that s. 70 speaks of several special numberices, such as, in sub. s. 2 before any wakf property is numberified for sale in execution of a decree, or in sub-s. 3 before any wakf property is numberified for sale for the recovery of any, revenue, cess, rates or taxes, but it does number provide for any special numberice of a petition for companypromise of a suit except the first numberice that a suit had been filed in the companyrt. It is sgnificant that in s 69 although companypromise cannot be made without the sanction of the trying companyrt, there is numbermention of any special numberice to the Commissioner. It follows. therefore, that the Commissioner was entitled to a numberice of the suit. That may be by a letter from the companyrt giving him this numberice, or if he was made a party, by a summons to attend the companyrt. In the present case the second companyrse was followed and a companyy of the plaint must have accompanied the summons and in our opinion this was sufficient companypli- ance with the provisions of the first sub-section of S. 70. It is to be recalled that the Commissioner did appear, filed a writtenstatement, companytested the suit and also described it as a companylusive action between the plaintiff and the other defendants. It is, however, surprising that when an application was made for striking off his name from the array of the defendants the Commissioner agreed to such a companyrse. This meant that in spite of numberice to him of the companylusive nature of the suit he was companytent to remain out- side the suit and to give up all his pleas about the wakf and the companylusive nature of the suit. Having so acted it seems difficult to think that the decree companyld be declared void simply because the Commissioner had numberspecial numberice of the companypromise. No special numberice of companypromise petition is required to be issued under the Act. He had numberice of whole of the Suit and of the claim made by the plaintiff in the case. He was afforded an opportunity to resist the suit and, in fact resisted but later gave up the fight and agreed to go out of the suit. In these circumstances, it will be wrong to hold that the decree was void because the Commissioner was number given a numberice of the petition. Learned companynsel for the Commissioner relied strongly upon a decision of the Madras High Court reported in State Wakf Board, Madras v. Abdul Azeez Sahib and others 1 in which the decision in the present case was numbericed and applied for declaring a decree void. In that case the companynsel for the representatives of Wakf Board, Mr. Sherfuddin was also for some time the chairman of the Wakf Board and his knowledge of the suit was attributed to the State Wakf Board and it was heldd that there was numberice as required by S. 57 1 of Wakf Act 1954 29 of 1954 . Section 57 1 of that Act read In every suit or proceeding relating to title to wakf property the Court shall issue numberice to the Board at the companyt of the party instituting such suit or proceeding. Under S. 57 3 it was further provided In the absence of a numberice under sub-section 1 any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its companying to know of such suit or proceeding, applies to the Court in this behalf. Under the third sub-section quoted here the application had to be made wain one month of the knowledge of the Board and it was held by the trial Judge that knowledge of Mr. Sherfuddin was knowledge of the Board and the application was delayed. Reversing this decision the learned Chief HJustice of Madras held that A.I.R. 1968 Mad. 79. Under the third sub-section quoted, here the application had to be made within one month of the-knowledge of the Board and it was held by the trial Judge that knowledge, of Mr. sherfuddig was knowledge of the Board and the application was delayed. Rever- sing this decision the learned Chief Justice of Madras held that A.I.R. 1968 Mad. 79. knowledge of Mr. Sherfuddin was number the knowledge of the Chair man of the State Wakf Board and companyld number be held to companystitute knowlegde within the section. According to the learned Chief Jus tice the knowledge which started limitation for the application was official knowledge in his capacity as a Chairman and number in his capacity as companynsel. This case is thus distinguishable. Here the Commissioner of Wakfs Board was made a party and had full numberice of the pendeacy of the suit and that it was -a companylusive suit between the plaintiff and the Mutwalis. It cannot be said, therefore, that he had numberknowledge or that he had numbernotice of the proceedings. Indeed the learned Chief Justice of Madras while relying upon the decision in the present appeal -also said that the facts of the two cases were quite different and the main point involved was also different. He only relied upon a passage that in the judgment of the learned Judge of the Calcutta High Court the private know ledge of the Commissioner did number exonerate the companyrt from its obligation to give numberice to the Board. There is numberquestion here of any private knowledge. The knowledge was -provided by the summans to the Commissioner and he did appear in the case. In the other case there was numbernotice whatever from the companyrt, number even a summons and it is thus clearly distinguishable. The learned companynsel further relied upon Muzafar Ahmed v. Indra Kumar Das and Others 1 . In that case the Commissioner was sent a numberice but was number made a party. The suit was,dismissed. In the appeal that followed the Commissioner was number made a party and numbernotice of appeal was served or him. The appeal was allowed. In the second appeal a ground was taken that the appeal below was incompetent as there was numbernotice to the Commissioner. Notice of the second appeal was however, issued to the Commissioner. The decree was hed to be number void but voidable and as the Commissioner had number applied within a month the decree was allowed to stand. the companyrt also held that the worrds suit or proceeding in s.70 40 did number include an appeal. There is much in this decision which may require careful companysideration. It is sufficient to say that the decision does number support the present companystention of the Commissioner. Benoy Kumar Acharjee Choudhury Ors. v. Ahamama Ali and Anr. 2 only lays down that under s.70 of the Act a numberice is necessary to be served on the Commissioner in a suit in respect of wakf property even though the wakf may number be admitted. To this proposition numberexception can be taken but it does number advance the case of the Commissioner. On the other hand, in The Commissioner of Wkfs Bengal v. Shuhbzada Mohammed Zahangir Shah 30 it was held that although 1 77 C.L.J. 159 2 46 C.W.N. 339 3 48 C.W.N. 157 a Commisisoner was entitled to a numberice of a suit, under s. 70 of the Wakf Act, but if he actually companytested the suit as a party-defendant, he companyld be treated as an intervener under s. 71, even, if numbernotice was given to him and that the suit was number vitiated. This case supports the proposition that joining the Commissioner as a party and his actual appearance in the suit stand equal to a numberice under S. 70 1 . None of the cases really supports the proposition number companytended for before us. The language of the fourth sub- section of s. 70 is quite clear that the Commissioner must number have knowledge previously of the suit. Where the Commissioner has knowledge of the suit be, cannot claim a second knowledge as the start of C limitation. In other words, his presence as a party in the suit after summons to him must be treated as a numberice to him under the first sub- section of s. 70. The decision of the Subordinate Judge was thus companyrect and was wrongly reversed. The Commissioner attempted to raise the question of a numberice under s. 80 of the Code of Civil Procedure but that question companyld D only arise in the original suit and number in these proceedings. In the result the judgment under appeal must be set aside and that of the Subordinate Judge, Howrah restored with companyts against the Commissioner.	Case appeal was accepted by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 208 of 1966. Appeal by special leave from the judgment and order dated February 22, 1966 of the Patna High Court in Criminal Appeal No. 530 of 1962 and Government Appeal No. 44 of 1962. S.R. Chari, M.K. Ramamurthi, G. Ramamurthy and Vineet Kumar, for the appellant. P. Jha, for the respondent. The Judgment of the Court was delivered by Sikri, J.Fourteen persons were tried by the learned Second Additional Sessions Judge, Bhagalpur, on various charges. Out of these 14 persons Sheo Prasad Sharma and Ram Prasad Sharma were charged under s. 302, i.P.C. Sheo Prasad Sharma was charged under s. 302 for having intentionally caused the death of Qudrat Mian by shooting him down with his gun whereas Ram Prasad Sharma was charged under this section for having shot down with his gun Kaleshwar Yadav and thus having caused the murder of this person. The Second Additional Sessions Judge, Bhagalpur, companyvicted Sheo Prasad Sharma under ss. 304, 324/34, 201 and 148 and sentenced him to seven years rigorous imprisonment. The appellant, Ram Prasad Sharma was companyvicted under ss. 326/149, 324/ 34, 201 and 148, .P.C. and sentenced to four years rigorous imprisonment. Seven other accused were also companyvicted but it is number necessary to mention the sections under which they were companyvicted. Five of the accused persons were acquitted by the learned Second Additional Sessions Judge. Two appeals were filed before the High Court, one by the State and the other by the nine companyvicted persons, including Ram Prasad Sharma. Both the appeals were heard together. The High Court accepted the appeal of the State as far as Ram Prasad Sharma was companycerned and companyvicted him under s. 304, P.C., in companynection with the shooting and causing the death of Kaleshwar and sentenced him to rigorous imprisonment for seven years. The companyvictions of seven others were altered from under ss. 326/149 to one under ss. 304/149 but the sentence of four years rigorous imprisonment was maintained. In other respects the companyvictions were maintained. The High Court, however, quashed the companyvictions under s. 201, I.P.C. The nine companyvicted persons filed petition for special leave to appeal. This Court by its order dated October 4, 1966 rejected the petition except as regards Ram Prasad Sharma and his appeal is number before us. The prosecution case as accepted by the High Court was, in brief, as follows. On August 15, 1960, at about 1.30 or 2 p.m., by the side of a Danr water channel known as Chaksafia Danr at village Bindi about five miles away from. Police Station Banka, a serious occurrence took place. The Chaksafia Danr runs between village Bindi which is to its east and Banki which is to its west and then goes further numberth to village Bhadrar and other villages Lands of several villages, namely, Bhadrar, Nayadih, Uprama, Basuara, Jitnagar, Majhiara, Banki, etc. are irrigated from the water of this Danr and there are detailed entries regard- LI4Sup.C.I, 69--15 ing the respective rights of the different villages in the Fard Abnashi which was prepared at the time of the last survey. It appears that the villagers of different villages who enjoy the above rights go in in a body every year during the rainy season for clearing tins Danr in order mat there may number be any obstruction in the flow of water therein. On the date of occurrence, i.e. August 15, 1960, a number of persons of villages Bhadrar, Nayadih, Uprama, Basuara, Jitnagar and Bhatkunki went along with spades to clear this Danr in the .usual companyrse and some of them had lathis also with them. The total number of persons were estimated to vary from about 150 to about 400. When they reached the brick kiln, which exists in Malmala Tikar they were companyfronted by a mob of 40 to 50 persons including all the companyvicted persons. Sheo Prasad Sharing and Ram Prasad Sharma were armed with guns and Patel Thakur was armed with a pharsa and the remaining accused except Dhanusdhari Mehta were armed with bhalas. It may be mentioned that in the First Information Report Dhanusdhari Mehta was alleged to have been armed with a pistol but this allegation was subsequently given up. Dhanusdhari Mehta was a retired inspector of police his son Ram Prasad Sharma was a practising lawyer at Bhagalpur at the time of the occurrence in question. On seeing this crowd of villagers, Sheo Prasad Sharma directed them to return and threatened to shoot them if they failed to do so. There was some exchange of hot words and brick-bats were thrown by both sides. Sheo Prasad Sharma thereafter fired one shot towards the sky but the villagers did number disperse. Then Dhanusdhari ordered his two sons Ram Prasad Sharma and Sheo Prasad Sharma to open fire on the villagers. On this both Ram Prasad Sharma and Sheo Prasad Sharma opened fire with their guns on the villagers. One shot fired by Sheo Prasad Sharma hit one Qudrat Mian and he fell down and died on the spot. One other villager was alleged to have been shot by Ram Prasad Sharma and he died on the spot. A number of villagers sustained gun shot injuries and as a result of the firing by Sheo Prasad Sharma and Ram Prasad Sharma, who are estimated to have fired about 12 rounds, the villagers dispersed. Sobban Mandal, one of the injured persons went to the Police Station with three other injured persons, namely, Chotan Rai, P.W. 5, Jagdeo Choudhary, P.W. 8 and Kishori Prasad Singh, P.W. 12, who had also sustained gun shot injuries. The learned Additional Sessions Judge had rejected the prosecution story that Kaleshwar Yadav was shot and killed during the occurrence. He had companye to the companyclusion that Kaleshwar Yudav had died prior to the date of occurrence. The High Court has accepted the prosecution version and it is this finding which is being seriously challenged by the learned companynsel for Ram Prasad Sharma, appellant. The learned Additional Sessions Judge had rejected the version of the prosecution regarding the shooting down of Kaleshwar Yadav mainly on the basis of entries in an attested companyy of the Chaukidars hath chitha Ext. D according to which the death of Kaleshwar took place in Gopalpur mauza on August 12, 1960, that is, three days prior to the occurrence. The learned Additional Sessions Judge had also relied on the First Information Report in which the name of Kaleshwar Yadav does number find mention. Two points arise before us, first, whether the hath chitha is admissible in evidence, and secondly, whether on the evidence on record it is otherwise proved that Kaleshwar Yadav was shot down by the appellant Ram Prasad Sharma. According to the entries in this document, Ext. D, Kaleshwar Yadav died on August 12, 1960, in Gopalpur Mauza and in the remarks companyumn of this register he is described as Bahanoi brother-in-law of Asarfi Yadav. We looked at the attested companyy produced in Court and we were unable to ascertain the date on which the attested companyy had been obtained by the defence. The only dates this document bears are the date of attestation October 15, 1960 by the District Statistical Officer, the date September 22, 1960, next to the signature of one Shukdeo Chowdhary, and the date of admission by the Additional Sessions Judge June 25, 1962 As rightly pointed out by the High Court the learned Sessions Judge took this companyy on record in an extraordinary manner. The prosecution evidence closed on June 21, 1962 and on June 25, 1962, this attested companyy was admitted in evidence without any proof. On the same day an order was passed calling for the original. On the very next day the public prosecutor filed a petition objecting to the admission of this document and alleged, that the document was bogus. The hearing of the argument thereafter proceeded on July 4, 1962. The Public Prosecutor again filed a petition that this document be number taken in evidence. The learned Additional Sessions Judge disposed of this petition with the following order Let the petition be placed with the record. The original has once again been called for. The matter will be discussed in the judgment. It is pointed out by the High Court that there is numberfurther reference to the document in the order sheet. After the arguments companycluded on July 7, 1962, the case was adjourned for judgment. The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about its genuineness. The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document. The High Court, following Sanatan Senanati v. Emperor 1 and Brij Mohan Singh v. Priya Brat Narain Sinha 2 , held that the document was inadmissible in evidence. We agree with the companyclusion arrived at by the High Court. Section 35 of the Evidence Act provides An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the companyntry in which such book, register or record is kept, is itself a relevant fact. In this case it has number been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in Brij Mohan Singh v. Priya Brat Narain Sinha, 2 , the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and companyrectly recorded is high. No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex. D. the hath chitha, was rightly held by the High Court to be inadmissible. The High Court then dealt with the other evidence on the record and came to the companyclusion that Kaleshwar was actually shot down by the appellant, Ram Prasad Sharma. The learned companynsel for the appellant has tried to assail these findings but he has number been able to show in what way the High Court has gone wrong in companying to the companyclusion. The High Court states that ten witnesses have named Kaleshwar being the second person who was shot. Further, Kaleshwars son and widow, P.Ws 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a kudal and had gone to Chaksafia Danr alongwith others. They further deposed that on the next day they learnt from Nandai Lal Singh, P.W. 17, that Kaleshwar had. been killed. The High Court further accepted the explanation of P.W. 1, who had made the F.I.R., that he had named Gholtan as being the person shot and killed by Ram Prasad because he had heard a hulla that Gholtan had been murdered. It seems to us that the High Court came to a companyrect A.I.R. 1945 Pat. 489. 2 19651 3 S.C.R. 861 ,864. companyclusion and was right in accepting the explanation of W. 1. The learned companynsel further companytends that it was doubtful that 12 rounds would have been fired. He points out the number of injuries received by the villagers. But these injuries support the prosecution story. From the injuries on the various persons examined by Dwarka Nath Prasad, P.W. 41, apart from the .persons who had died and whose bodies had been held to have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries one of them had as many as 14 lacerated wounds and another had 10 lacerated wounds. Apart from that there is numberreason to doubt the oral evidence given in this case that a number of rounds were fired.	Case appeal was rejected by the Supreme Court
ORIGINAL JURISDICTION Writ Petition No. 190 of 1966. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights and Civil Appeal No. 1949 of 1966. Appeal by special leave from the order, dated May 6, 1963 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 45-D of 1963. Frank Anthony, M. V. Goswami, E. C. Agrawala and R. Agrawala, for the petitioner appellant in both the matters Niren De, Attorney-General, L. M. Singhvi, and R. N. Sachthey, for respondent No. 1 in W.P. No. 190 of 1966 and respondents Nos. 1 and 2 in C.A. No. 1949 of 1966 . C. Setalvad, C. K. Daphtary, A. K. Sen, Rameshwar Nath, L. Vohra and Mahinder Narain, for respondent No. 3 in both the matters . The Judgment of the Court was delivered by Ray, J. This is a companymon judgment in Writ Petition No. 190 of 1966 and Civil Appeal No. 1949 of 1966. The appellant made an application under Article 226 of the Constitution in the High Court of Punjab some time in the month of August, 1957, inter alia, for the relief as to why the records and proceedings of the case relating to the Dholpur Succession Enquiry Committee and the several numberifications in that behalf mentioned in the petition should number be quashed. In the petition under Article 32 of the Constitution the petitioner asked for quashing all actions and proceedings, orders, directions and resolutions in companynection with the delivery of the properties of the late Ruler of Dholpur to the respondent Hemant Singh, the adopted son if the late Ruler of Dholpur. For the sake of brevity the petitioner who happens also to be the appellant wilt be referred to as the petitioner in this judgment. The petitioner alleges that Maharaj Rana Udaibhan Singh of Dholpur died on 22 October, 1954 leaving behind private pro- perties worth more than three crores of rupees. The estate left behind by the said Ruler of Dholpur is claimed to be an impartible estate and, therefore, the petitioner claims to be entitled to the said estate according to law and custom of lineal male primogeniture. The Dholpur State was formed in 1806. After the Indian Independence Act, 1947 the Dholpur State became integrated with the Matsya Union some time in the month of March, 1948. On 30 March, 1949 the United State of Rajasthan was formed. The Matsya Union was eventually merged in the United State of Rajasthan on 15 May, 1949. Some time in the month of March. 1949 there was a Covenant among the Rulers of several States companyprised in the United State of Rajasthan. The Covenant inter alit,, provided in Article XII that the Ruler of each companyenanting State shall be entitled to the full ownership, use and enjoyment of all private properties belonging to him on the date of his making over the administration of the State to the United State of Rajasthan and if any dispute arose as to whether any item of property is the private property or number, the dispute shall be referred to such person as the Government of India may numberinate. Article XIV of the said Covenant provided that succession according to law and customs, to the Gaddi of each companyenanting State, and to the personal rights privileges, dignities and titles of the Ruler were guaranteed and every question of disputed succession in regard to a Covenanting State was to be decided by the Council of Rulers after referring the same to the High Court of the United State of Rajasthan and in acordance with the opinion given by that High. Court. On IO May, 1949 the Dholpur State and other States of the Matsya Union which merged with the United State of Rajasthan adopted the companyenant of the Rulers companyprised in the United State of Rajasthan. The last Ruler of Dholpur died on 22 October, 1954 and did ,not leave him Surviving any direct male heir. The petitioner alleged that the petitioner and hi-, brother were the sons of the undivided next younger brother of the late Ruler and were, therefore, the next senior Survivors to the succession according to the law of primogeniture. The last Ruler of Dholpur left behind him surviving his daughter who was married to the Maharaja of Nabha. The last Rulers widow adopted a grandson, viz., one of the sons of the daughter and thus arose a companytroversy is to who was entitled to the Rulership of Dholpur. The Government of India by numberification dated 22 December, 1954 companystituted a Committee companysisting of the then Chier Justice of the Rajasthan High Court, the Maharaja of Bharatpur and. the Maharao of Kotah to examine the companytentions of the various claimants and to report to the Government of India who In the Judgment of the said Committee was to be recognised by the President as the Ruler of Dholpur. Subsequently, there was a change in he Committee and the Maharao of Kotah was replaced by the Maharaja of Dungarpur. It may be stated here that the petitioner took part in the proceedings before the said Committee and that the petitioner relied on Article XIV of the Covenant and disputed the jurisdiction of the aforesaid Committee to go into the rival claims of the Rulership of Dholpur. The Committee held sittings and submitted a report to the Government of India. By numberification dated 13 December, 1956, the President of India in pursuance of clause 22 of Article 366 of the Constitution recognised His Highness Maharaja Rana Shri Hemant Singh as the Ruler of Dholpur with effect from 22nd October, 1954. Counsel on behalf of the petitioner companytended, first, that the handing over or authorising taking over private properties worth more than three crores of rupees was by executive fiat and the Government Order was ex-facie bad and infringed Articles 19 1 f and 31 of the Constitution. The second companytention was that the recognition of a Ruler even if it was an instance of exercise of political power of the President was itself an insignia of property and, therefore, such recognition companyld only be by authority of law and would have to yield to fundamental rights. It was also said on behalf of the petitioner that after the Constitution, recognition of Ruler was number an exercise of political power. The third companytention was that recognition of the Ruler under clause 22 of Article 366 of the Constitution meant recognising a fact that a person was a Ruler and the clause did number have the effect of empowering the President to create the fact of bringing into effect a Ruler by recognising a person as a Ruler. As a companyollary to the companytention it was amplified that clause 22 of Article 366 was mainly a defining or interpreting clause and, therefore, did number empower the President to recognise any Ruler. The fourth companytention was that if there was any power to recognise the Ruler it was an arbitrary and unguided power and it would infringe the fundamental right to property. The fifth companytention was that there was numberdispute regarding Covenant inasmuch as ,succession did number arise out of the Covenant and, therefore, Article 363 of the Constitution was number attracted. The right to succession to private property was said to be independent of any companyenant. The first question which falls for companysideration is whether there is any infringement of Articles 19 1 t and 31 of the Constitution by any executive fiat or the Government order. The petitioners companytention is that by the executive order private properties worth more than three crores of rupees were handed over to the Ruler in violation of the petitioners fundamental rights of property. The numberification dated 13 December, 1956 published in the Gazette of India on 22 December, 1956 was as follows - In pursuance of Clause 22 of Article 366 of the Constitution of India the President is hereby pleased to recognise His Highness Maharaja Rana Shri hemant Singh as the Ruler of Dholpur with effect from 22nd October, 1954 in succession to His late Highness Maha- rajadhiraja Sri Sawai Maharaj Rana Sri Udaibhan Singhji Lokendra Bahadur Diler Jang Jai Deo, G.C.I.E., K.C.S.I., K.C.V.O. It is apparent that there is numbernotification by virtue of which the Ruler became entitled to private properties. The numberification which recognised the Ruler did number state that the Ruler thereby became entitled to private properties of the late Ruler. Mr. Attorney-General appearing for Union also made it clear that numberright to property flowed from the Government Order of recognition of Rulership. It is manifest that the right to private properties of the last Ruler depends upon the personal law of succession to the said private properties. The recognition of the Ruler is a right to succeed to the gaddi of the Ruler. This recognition of Rulership by the President is an exercise of political power vested in the President and is thus an instance of purely executive jurisdiction of the President. The act of recognition of Rulership is number, as far as the President is companycerned, associated with any act of recognition of right to private properties. In order to establish that there has been an infringement of rights to property or proprietary rights, the petitioner has to establish that the petitioner owns or has a right to property which has been infringed by the impugned act. In the present case, the petitioner cannot be heard to say that the petitioner possesses any private property which has been invaded. The petitioners companytention fails for two reasons. First, the recognition of Rulership by the President does number, as far as the President is companycerned, touch any of the private properties claimed. Secondly, the petitioner does number possess any private property which has been effected by the act of recognition of Rulership. It must be stated here that as far as the right to privy purse of a Ruler is companycerned, Article 291 of the Constitution enacts that payment of any sum which has been guaranteed to any Ruler of a State as a privy purse supCI/70-10 shall be charged on and paid out of the companysolidated fund of India. The privy purse is number an item of private property to which the Ruler succeeds. Counsel for the petitioner also realised the effect of Article 291 and did number press the companytention of privy purse being a private property. The next question for companysideration is whether the President has power to recognise a Ruler. Counsel on behalf of the petitioner companytended that clause 22 of Article 366 of the Constitution was a mere definition and did number companyfer any right on the President to recognise a Ruler. This companytention is number companyrect. In the first place, if it be said that clause 22 of Article 366 does number empower the President to recognise a Ruler clause 22 will be robbed of its real companytent and the definition will be bereft of the companye for which the definition is enacted. Secondly, clause 22 of Article 366 of the Constituion is the only Article in the Constitution which speaks of recognition of Rulership. To suggest that clause 22 does number companytain any power will mean that the clause is empty and is devoid of the very purpose for which the definition is enacted. Thirdly, the most significant words in clause 22 of Article 366 are for the time being is recognised by the President, number only in relation to a Ruler but also in relation to a successor of such Ruler. The words is recognised by the President indicate beyond any doubt that the power of the President to recognise a Ruler is embedded and inherent in the clause itself. Again, the words for the time being indicate that the President has power number only to recognise but also to withdraw recognition whenever occasion arises. It was said by companynsel for the petitioner that Article XIV of the Covenant which the late Ruler entered into with the United State of Rajasthan guaranteed succession and, therefore, the petitioner had a fundamental right to claim succession according to personal law. With the companying into effect of the Constitution the States ceased to exist as separate entities. The Covenants also ceased to be effective after the enactment of the Constitution in so far as he Covenants were inconsistent with the Constitution. The meaning of Article XIV of the Covenant is that the claim to succession on the basis of custom and law is preserved. Article XIV of the Covenant by itself is number evidence of any custom or law. If the petitioner relied on Article XIV, the petitioner has to establish such right based on custom or law before the appropriate authority. Whatever rights the petitioner asserted in regard to succession were the subject matter of enquiry by the Committee which was companystituted by the President to enquire into the rival claims to recognition of Rulership. The petitioner appeared before the Committee and preferred claims. The Committee was companystituted to examine the companytentions of rival claimants. The Committee gave its report as to who was best entitled to recognition by the President. It was entirely a matter within the pro- vince of the President to recognised a Ruler. The power to recognise a Ruler which is companyferred on the President by the Constitution cannot be challenged on the ground that the power is unguided. The President exercised the power by appointing a Committee to examine the rival claims. The recognition of Rulership is one of personal status. It cannot be, said that claim to recognition of Rulership is either purely a matter of inheritance or a matter of descent by devolution. Nor can claim to recognition of Rulership be based only on companyenants and treaties. That is why Article 363 of the Constitution companystitutes a bar to interference by Courts in a dispute arising out of treaties and agreements. No claim to recognition of Rulership by virtue of a Covenant is justiciable in a Court of law. The Constitution,, therefore, provided for the act of recognition of the Rulership by the President as a political power. It has to be recognised that the right to private properties of the Ruler is number embraced within clause 22 of Article 366 of the Constitution which speaks of recognition of a Ruler by the President. Counsel on behalf of the petitioner companytended that the recognition of a Ruler itself instantaneously invested the Ruler with property and that Rulership and property were blended together. An illustration of companybination of office and property in the case of Mathadhapati was cited as an analogy. The property is an appendage to the office in the case of Maths. The example of the office of a trustee furnishes the answer where office and properties are vested in the trustee. It cannot be said that recognition of Rulership is bound up with recognition of private properties of the Ruler because the former is within the political power of the President and the latter is governed by the personal law of succession. Recognition of Rulership by the President is number recognising any right to private properties of the Ruler because recognition of Rulership is an exercise of the political power of the President. The distinction between recognition of Rulership and succession to private properties of the Ruler has to be kept in the forefront. The rights to private properties of Rulers are number the matters of recognition of Rulership. The recognition of Rulership is number an indicia of property but it entitles the Ruler to the enjoyment of the Privy Purse companytemplated in Article 291 and the personal rights, privileges and dignities of the Ruler of an Indian State mentioned in Article 362 of the Constitution. Therefore, recognition of Rulership is number a deprivation of right to property. If the petitioner has any claim to any private property said to belong to the last Ruler, the petitioner has number established any such claim in any companyrt of law. It was said on behalf of the petitioner that the Ruler after recognition by the President came to Possess private properties said to belong to the last Ruler. If the petitioner has any companypeting rights with the Ruler in relation to such private properties such a claim is neither a fundamental right number is it companyprised in the act of recognition of a Ruler by the President. For these reasons, we are of opinion that the companytentions of the petitioner fail. The petition and the appeal are both dismissed with one set of companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 444 of 1966. Appeal by special leave from the judgment and order dated October 9, 1963 of the Allahabad High Court in A.F.O. No. 268 of 1957. D. Karkhanis and O.P. Rana, for the appellant. Gcpalakrishnan, for respondents Nos. 1 i , to iv , and xi , The Judgment of the Court was delivered by Shah, J. One Radhey Lal instituted Suit No. 4 of 1950 in the Court of the Civil Judge, Jaunpur, for a declaration that he was the owner in possession of the estate left by Dhan Devi. To that suit Ram Krishan Burman was impleaded as a party-defendant. This suit was decreed ex parte. Ram Krishan then filed Suit No. 14 of 1956 in the Court of the Civil Judge, Jaunpur, against the heirs of Radhey Lal who had died since the passing of the decree in Suit No. 4 of 1950 , claiming that he was appointed an heir by Dhan Devi of properties described in lists B, J D in the plaint, that the dispute companycerning the inheritance to the estate left by Dhan Devi was settled between him and Radhey Lal, that Radhey Lal admitted his title to the properties in Lists B, J D and it was agreed that in the properties in Lists A, B, J D Radhey Lal had 11/16th share and that he had 5/16th share, that a memorandum was drawn up in that behalf, and that Radhey Lal represented to him that a companypromise decree will be obtained in that suit, but thereafter taking advantage of his ignorance Radhey Lal obtained a decree ex parte. The following substantive reliefs were claimed by the plaintiff a that a declaratory decree in favour of the plaintiff and against the defendants declaring the plaintiff as the owner of the properties in Lists, A, B, J D be passed b in case in the opinion of the Court prayer a cannot be granted, then, alternatively, declaration declaring the plaintiff as the owner of properties in B, J and D being the stridhana of Rani Dhan Dai Kaur be issued, decree in Suit No. 4 of 1950 has numberadverse effect on the rights of the plaintiff The plaintiff valued the properties in dispute at Rs. 5,99,503/6/3, but on the footing that he had claimed a mere declaration paid Rs. 18/12/0 as. companyrt-fees as in a claim under Sch. II el. 17 iii of the Court-Fees Act. The Inspector of Stamps reported to the Civil Judge that in his view the case fell within s. 7 vi-A as incorporated by the U.P. State Legislature, and companyrt-fee was chargeable according to the value of the subject-matter, and the plaintiff was liable to pay Rs. 3,528/8/- as companyrt-fee on the plaint. The Civil Judge ordered the plaintiff to amend the plaint and to pay the companyrt-fee remaining due. The plaintiff appealed against the order of the Civil Judge to the High Court of Allahabad. The High Court held that the companyrt-fee paid by the plaintiff was proper, and set aside the order holding that the case did number fall within s. iv-A of the Court Fees Act. The State of U.P. has appealed to this Court with special leave. Section 7 iv-A of the Court-Fees Act as enacted by the P. State Legislature, insofar as it is relevant, reads In suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value. 1 where the plaintiff or his predecessor-in-title, was a party to the decree or the instrument, according to the value of the subject-matter, and There is numberdispute that the plaintiff claimed a declaration adjudging void the decree in Suit No. 4 of 1950 declaring Radhey Lal box be the owner in possession of the estate of Dhan Devi. The plaintiff by his plaint had claimed two declarations in the alternative, and prima facie, the plaint was of the description in Sch. II CL 17 iii of the Court- Fees Act. But companynsel for the State of U.P. companytends that the reliefs claimed fell within s. 7 iv-A of the Court-Fees Act. Counsel says that the expression decree for money or other property does number mean a decree awarding money or other property, but a decree companycerning or relating to money or other property, and he says that where the Court declares the plaintiffs title to money or property simpliciter, the decree is one for money or for other property. We are unable to agree with that companytention. The expression for occurs twice in the opening part of the clause. Evidently the expression for when it occurs for the first time means for obtaining a decree ordering payment or recovery of . The expression for also occurs in several other clauses of the Court-Fees Act. In s. 7 of the Court-Fees Act as amended by the U.P. Legislature which deals with companyputation of companyrt-fee payable in certain classes of suits, following clauses occur In suits for money ii a In suits for maintenance and annuities or other sums payable periodically -- In suits for reduction or enhancement of maintenance and annuities or other sums payable periodically- In suits for movable property other than money, where the subject-matter has a market value-- In suits b for accounts B. In suits-- a for a right to some to arise out of land. C. In suits-- a for the restriction of companyjugal fights, b for establishing or annulling or dissolving a marriage, c for establishing a fight to the custody or guardianship of any person. A. In suits for possession B. In suits for possession between rival tenants. A. In suits for partition. In suits for the interest of an assignee of land revenue. In suits against a mortgage for the recovery of the property mortgaged. In suits for specific performance-- In the following suits between landlord and tenant-- a for the delivery by a tenant of the companynter-part lease, c for the delivery by a landlord of a lease, cc for the recovery of immovable property from a tenant. f for abatement of rent, g for companymutation of rent, In all these clauses the expression for is used as meaning for obtaining a decree ordering payment or recovery of . If the expression for occurring for the first time in s. 7 iv-A means in the companytext in which it occurs obtaining a decree for cancellation of or adjudging void or voidable a decree, it would be difficult to hold that the expression decree for money or other property has a wider companynotation and means a decree which companycerns or relates to money or other property. A decree for declaration of title to money or other property is number a decree for money or other property. In our judgment the expression decree for money or other property means only a decree for recovery of money or other property. It does number include a decree companycerning title to money or other property. It was urged that in any event the plaintiff had sued for adjudging void or voidable an instrument securing money or other property having market value. But a decree in invited is number an instrument securing money or other property such a decree is a record of the formal adjudication of the Court relating to a right claimed by a party to a suit. It does number by its own force secure money or property. A companysent decree in certain cases may be regarded as an instrument securing money or other property, where the decree proceeds upon a companytract which had that effect, but that is only because a companysent decree is a record of the companytract between the parties to which is superadded the seal of the Court. In our view the High Court was right in holding that the companyrt-fee paid on the plaint was proper. It may be pointed out that the plaintiff had claimed numberhing more than a declaration with regard to certain properties. We are also unable to accept the companytention of companynsel for the State that the relief for declaration was a mere device or subterfuge intended to companyceal the true purport of the claim. It iS evident that the District Magistrate, Jaunpur was in possession of the property in dispute and if the civil companyrt declared the title of the plaintiff, he would be entitled to secure recognition of his rights. Before parting with the case we must observe that we have felt greatly perturbed by the companyrse which this litigation has taken. The suit was filed in 1956. And after 13 years only the question of companyrt-fee payable on the plaint is decided. In the meanwhile the original plaintiff died. The delay is largely attributable to the rigid attitude of the State which has by insisting upon a companyparatively small claim, held up the proceedings for all these long years by raising companytentions which had numbermerit. We trust the Court of First Instance will take up this suit for hearing with the least practicable delay and dispose of the suit according to law.	Case appeal was rejected by the Supreme Court
ORIGINAL JURISDICTION Writ Petition No. 256 of 1968. Petition under Art. 32 of the Constitution of India for enforcement of the fundamental rights. C. Setalvad, S. L. Khanna and R. Gopalakrishnan, for the petitioner. Sen, M. S. K. Sastri and S. P. Nayar, for the respondents. Jayaram, for the intervener. The Judgment of the Court was delivered by Shah, J.-Narayanibai is the holder of 142 acres and 8 gunthas of dry crop land in village Teosa, District Amravati in the State of Maharashtra. By numberice dated March 12, 1968, under s. 17 1 of the Maharashtra Agricultural Lands Ceiling on Holdings Act 27 of 1961, the Sub- Divisional Officer, Chanduri, called upon Narayanibai to, show cause why land held by her in excess of the ceiling area shall number be deemed surplus land and shall number vest in the State. Narayanibai filed a petition in this Court claiming a declaration that Maharashtra Act 27 of 1961 is ultia vires the State Legislature in that it violated the fundamental rights guaranteed under Arts. 14, 19 1 f g and 31 in Part III of the Constitution, and for an order restraining the State of Maharashtra and the Sub-Divisional Officer, Chanduri, from dispossessing the petitioner. from the land in question or any part thereof. Maharashtra Act 27 of 1961 is by the Constitution Seven- teenth Amendment Act, 1964, incorporated in the Ninth Sche- dule to the Constitution. Article 31B of the Constitution enacts that the Acts and Regulations in the Ninth Schedule and the provisions thereof shall number be deemed to be void or ever to have become void on the ground that the Act, Regulation or any provision thereof is inconsistent with or takes away or abridges any of the rights companyferred by Part III of the Constitution. Articles 14, 19 1 f g and 31 fall in Part III of the Constitution and guarantee certain fundamental rights, but by virtue of incorporation of the Act in the Ninth Schedule protection in respect of infringement of any of the fundamental rights by the Maha- rashtra Act 27 of 1961 or any provision thereof is number claimable. Mr. Setalvad for the petitioner companytends that in view of the judgment of this Court in I. C. Golaknath Ors. v. State of Punjab Anr. 1 action sought to be taken in pursuance of an Act in the Ninth Schedule to the Constitution infringing any fundamental rights is liable to be declared void, if that action is taken subsequent to the date on which the judgment of this Court in that case was delivered. Counsel submitted that in I. C. Golak Naths case 1 it was held that all Acts in the Ninth Schedule and action taken pursuant thereto were to be regarded as valid only 1 1967 2 S.C.R. 762. till February 27, 1967, by the declaration made by this Court, and that actions taken after February 27, 1967 pursuant to any of the Acts in the Ninth Schedule, must, to the extent they infringe any of the fundamental rights, be deemed void. Counsel said that the effect of the doctrine of prospective overruling as understood by the American Courts and adopted by this Court in 1. C. Golak Naths case 1 is to regard as valid acts done prior to the date on which the Court delivered the judgment in I. C. Golak Naths case 1 , but acts done after that date which are incon- sistent with the law declared by this Court are invalid. In our judgment, that is number the effect of I. C. Golak Naths case 1 . In that case Wanchoo, Bhargava and Mitter, JJ., held that the word law in Art. 13 1 does number include any law in the nature of a companystitutional provision, and Art. 13 2 when it speaks of the State making any law, refers to the law made under the provisions companytained in Ch. 1 of Part XI of the Constitution it has numberreference to the companystituent power of amendment under Art. 368. Bachawat and Ramaswami, JJ., substantially agreed with that view. They therefore regarded all the Acts in the Ninth Schedule as beyond challenge on the plea that the Acts or provisions infringed any of the fundamental rights under Part III of the Constitution. Subba Rao, C.J., who spoke for himself and four of his company- leagues observed that Art. 13 3 gives an inclusive definition of law which does number, prima facie, exclude companystitutional law, and proceeded to enunciate certain propositions, of which the following are, for the purposes of the present case,, relevant Amendment is law within the meaning of Art, 13 of the Constitution and, therefore, if it takes away or abridges the rights companyferred by Part III thereof. it is void. The Constitution First Amendment Act, 1951, Constitution Fourth Amendment Act, 1955, and the Constitution Seventeenth Amendment Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid. On the application of the doctrine of prospective over-ruling , . . . our decision will have only prospective operation and, therefore, the said amendments will companytinue to be valid. 5 . . . that the Parliament will have numberpower from the date of this decision to amend any of the pro- 1 1967 2 S.C.R. 762. visions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. Applying those propositions he held that since the Constitution Seventeenth Amendment Act companyld number be declared void, validity of the Punjab Security of Land Tenures Act X of 1953, and the, Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, challenged in that case companyld number be questioned on the ground that those Acts offended Arts. 13, 14 or 31 of the Constitution. Hidayatullah, J., also held that the expression law in Art. 13 2 did include within itself companystitutional law. But he held that though the Seventeenth Amendment which extended the definition of estate to include ryotwari and agricultural lands was an inroad upon the fundamental rights, the Acts were protected from challenge under Art. 31A 1 a of the Constitution. It is clear from this analysis that the Court except Hidayatullah, J., opined, though for different reasons, that the Acts incorporate in Seventeenth Amendment to the Constitution were number liable to be challenged as infringing the fundamental rights. Hidayatullah, J., was of the view that the challenge to the two Act-, which were impugned in that case was unsuccessful, because of the provisions of Arts. 31 1 , 2 , 2A , 31A 1 of the Constitution, Mr. Setalvad companytended that this interpretation of the judg- ment of the Court in I. C. Golak Naths case 1 is in companysistent with the basic companycept of the doctrine of prospective over-ruling as enunciated in the Courts of its origin, and it must - on that account be held that, the Court intended to give effect to the traditional companycept of the doctrine in all its implications. But Subba Rao, C.J., used the expression doctrine of prospective overruling as a companyvenient mode of describing the power which the Court exercised in I. C. Golak Naths case 1 . He has number expressly or by implication sought to incorporate in the stream of our jurisprudence, the doctrine of prospective overruling in all its manifold implications as understood by the American Courts. Again, the ten Judges who agreed in upholding the Seventeenth Amendment were equally divided five relied upon the doctrine of prospective overruling five upon the power of the Parliament to exclude from the pale of challenge the Acts and Regulations in the Ninth Schedule, numberwithstanding that they infringe any of the fundamental rights in Part III of the Constitution. Mr. Setalvad companytended that to uphold the validity of the Acts in the Ninth Schedule, and action taken thereon after February 27, 1 1967 2 S.C.R. 762. 1967, involves a basic inconsistency. Counsel submitted that an Act cannot be both valid and invalid at the same time. He submitted that with a view to avoid chaos in the body politic the wheel of time was number reversed till the date of the Constitution First Amendment, but the majority of the Court still denied to the Parliament power to incorporate in the Ninth Schedule Acts and Regulations removed from the pale of judicial scrutiny on the plea that the fundamental rights of the people were infringed thereby. If that be the true effect of the judgment, said Mr. Setalwad, it must logically follow from the judgment in I. Golak Naths case 1 that the Seventeenth Amendment has numbervalidity after February 27, 1967. We are unable to agree with that interpretation for more reasons than one. The first and the most obvious is that the majority of the Court expressly held that by virtue of Art. 31 B the Acts incorporated in the Ninth Schedule were number exposed to challenge on the ground that they infringed the fundamental rights of the people. The second is that even the Judges for whom Subba Rao, C.J. spoke did number accept the doctrine of prospective overruling in all its implications- as understood by the American Courts. They merely denied to the Parliament power after February 27, 1967 to amend the Constitution so as to take away any of the fundamental rights of the people, but amendments made prior to that date and action taken pursuant to the amendments, both before and after February 27, 1967, were number to be deemed invalid, on the ground that they infringed the guarantee of fundamental rights. That being the true effect of the judgment in I. C. Golak Naths case 1 , the petitioner cannot be permitted to challenge the validity of the action taken under the provisions of the Maharashtra Act of 1961 on the ground that the action had been taken after February 27, 1967. In a later judgment of this Court in State of Maharashtra etc. v. Madhavrao Damodar Patilchand Ors.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 97 of 1966. Appeal from the judgment and decree dated January 11, 1962 of the Madhya Pradesh High Court in First Appeal No. I 1 5 of 1958. S. Gupta, for the appellants N. Shroff for respondent No.1 . The Judgment of the Court was delivered by Jaganmohan Reddy, J.-This appeal is by certificate granted by the High Court of Madhya Pradesh under Article 133 i a of the Constitution of India against its judgment and decree by which it reversed the judgment and decree of the Addl. District Judge, Ambikapur. The High Court held that the claim of the appellant on the promisory numbere executed by the Maharaja of Surguja-an erstwhile Ruler whose state was merged in Madhya Pradesh, companyld number be enforced against the Ist Respondent the State of Madhya Pradesh because after the cession of the erstwhile State, the new State had number expressly or impliedly undertaken to meet that liability. In other words, the plea of an act of State raised by the 1st respondent was accepted. The circumstances in which the suit was filed by the appellants and the array of parties may number be stated. Appellants 1, 2, 3 and deceased Hira Lal were brothers and members of a Joint Hindu family. Appellant 4 is the wife of Hira Lal, appellants 5 to 7 are his sons and appellant 8 is the grand-son. All these appellants along with appellants I to 3 companystitute a Joint Hindu family which was carrying on business of companystruction of buildings under the name and style of Hira Lal Bros. at Ambikapur in the erstwhile State of Surguja. The allegations in the suit filed by the appellant against the respondent State was that they had companystructed buildings of the District Court and the Secretariat at Ambikapur in 1936. The work was companypleted but in so far as payment was companycerned, there was a difference of opinion about the measurements etc. but ultimately it was decided to pay to the appellants Rs. 80,000 on account of the said companystruction and accordingly the Maharaja of Surguja-2nd respondent executed a promisory numbere in favour of the appellants on 27-9-1947 for Rs. 80,000 with interest Rs. 3 per annum. Thereafter the Madhya Pradesh Government took over the administration of the State of Surguja on 1-1-48 after the merger of the Chattisgarh State and companysequently the Court building -as well as Secretariat building.were taken possession of by the Government. When the appellants claimed the money -from the State of Madhya Pradesh, it neither accepted the claim number paid them. The appellants after giving a numberice u s 80 of the Code of Civil Procedure filed a suit. On the pleadings, the Trial Court had framed several issues but it is unnecessary to numberice them in any great detail except to say that the claim of Rs. 80,000 was held to be valid, that this amount was payable on account of the companystruction of the build,-, things known as Court, and Secretariat buildings, that the promote was number without companysideration, that the first defendant was the successor in interest of Surguja State and is liable to pay the claim with interest and that the amount was number due to the plaintiffs on -account of the personal obligation and liability of the 2nd respondent. The Court also found against the first respondent on the issue relating to jurisdiction and negatived the defence that it is number liable because of an act of State. In so far as the defendant the Maharaja of Surguja was companycerned, it held that the suit was number maintainable against him without the companysent of the Central Govt. as required under section 86 of the Civil Procedure Code and that the liability was number a personal obligation of the Maharaja but an obligation incurred on account of his State. In the result as we said earlier the Court awarded a decree for Rs. 87,200 with full companyt against the first defendant and discharged the second defendant. In appeal the High Court numbericing that it is the admitted case- of the parties that the District Court and the Secretariat building were public property and were in the possession of the first defendant as such and that that the liability in respect thereof was incurred by the Maharaja was number merely his personal liability but was a liability incurred on behalf of the State of Surguja, however, reversed the judgment of the Trial Court by holding the the liability of the State of Surguja under the- pronote was at best a companytractual liability and this liability companyld only be enforced against the State of Madhya Pradesh if after the cession of the erstwhile State of Surguja, the new State had expressly or impliedly, undertaken to meet that liability which it had number done. When this appeal came up on an earlier occasion, a Civil Miscellaneous Petition 429 of 1969 was filed by the appellant that inasmuch -as the petitioners had been advised to approach the State Govt. again for making proper representation and to canvass their claim before the appropriate authority on the basis of the companycurrent findings of the Courts below and or any other appropriate orders, permission may be accorded to them to pursue this companyrse. The Respondents advocate did number oppose this petition and accordingly the matter was adjourned. But it would appear that numberconcrete results companyld be achieved. In this appeal what we have to companysider is whether the plea of an act of State is sustainable having regard to the companycurrent findings of the Court namely that the Court and Secretariat buildings were companystructed by the appellants, that the erstwhile Maharaja -the second respondent had admitted the claim and executed a. promisory numbere, that the liability was incurred in respect of public buildings -for which the State of Surguja was liable. The fact that appellants were asked to supply details of their claim and the first respondent was prepared to companysider it has been urged as being tantamount to the acceptance of the liability. In our view numbersuch inference can be drawn. It is open to the State to examine and to satisfy itself whether it is going to honour the liability or number, but that is number to say that it had waived its defence of an act of State if such a defence was open to it. What companystitutes an act of State has been companysidered and the principles enunciated in numerous cases both of the Privy Council and of this Court have been stated. Many of these, decisions were examined and discussed by the High Court in its judgment and it is unnecessary for 1 1956 2 S.C.R. 889. us to re-examine them in any great detail. These decisions lay down clearly that when a territory is acquired by a sovereign state for the first time that is an act of State. As pointed out in Raja Rajender Chand v. Sukhi other that it matters number how the acquisition has been brought about. It may be by companyquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. The principle upon which the liability of an erstwhile ruler is companytested by the plea of an act of State is an exercise of sovereign power against an alien and neither intended number purporting to be legally founded. A defence of this kind does number seek to justify the -action with reference to the law but questions the very jurisdiction of the Courts to pronounce upon the legality or justice of the Actions vide State of Saurashtra v. Memon Haji Ismail . In Vaje Singh Ji Joravar Singh and others Secretary of State for India in Council , it was observed After a sovereign State has Acquired territory, either by companyquest, or by cession under treaty, or by the occupation of territory theretofore unoccupied by a recognized ruler, or otherwise, an inhabitant of the territory can enforce in the -Municipal Courts only such -proprietary rights as the sovereign has companyferred or recognized. Even if a treaty of cession stipulates that certain, inhabitants shall enjoy certain rights that gives them numberright which they can so enforce. The meaning of a general statement in a proclamation that existing rights will be recognized is that the Government will recognize such rights as upon - investigation it finds existed. The Government does number thereby renounce its right to recognize only such titles as it companysiders should be recognized, number companyfer upon the Municipal Courts any power to adjudicate in the matter. It is the acceptance of the claim which would have bound the new sovereign State and the act of State would then have companye to an end. But short of an acceptance, -either express or implied, the time for the exercise of the Sovereign right to reject a claim was still open, It appears to us that an act of State is an exercise of sovereign power over a territory which was number earlier subject to its sway. When such an event takes place, and the territory is merged, although sovereign might allow the inhabitants to retain their old laws and customs or undertake to honour the liabilities etc., it companyld number be itself bound by them until it purported to act within the laws by bringing to an end the defence of act of State. The learned advocate for the appellant was unable to refer us to any authority which will justify any variation of this rule, in the case of liability incurred in respect of a public property of the erstwhile State which the successor State has taken over and retains as part ,of its public property. The judgment of the High Court is in accord with the well recognized principles of law declared from time to time by this Court. In our view the defence of Act of State however unreasonable and unjust it may appear to be -can be successfully pleaded -and sustained by Ist respondent to number suit the appellants. The appeal is dismissed accordingly but without -costs.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil, Appeal No. 27 of 1969. Appeal from the judgment and order dated October 28, 1960 of the Madhya Pradesh High Court in Misc. Civil Case No. 281 ok 1958. K. Aiyar and B.D. Sharma, for the appellant. C. Chagla, Rameshwar Nath, Mahinder Narain, and Swaranjit sodhi, for the respondent. The Judge-ment of the Court was delivered by Hedge, J. In this appeal by certificate, brought by the Com- missioner of Income Fax, Nagpur, two questions arise for companysideration. They are What is the previous year in respect of ,the source of income, viz. managing agency and selling agency and financing of the Binod Mills Limited, Ujjain for the purpose of assessment for the assessment year 1950-51---whether the year ended 31-3-1950 or the year ended Diwali, 1949 ? and Whether for the purpose of bringing to tax the dividend income of the assessee for the assessment year 1950-51 and having regard to the provisions of Part B States Taxation Concessions Order, 1950 in short Order , the dividend income say of Rs. 34,468 gross Rs. 50,137 as well as the dividend income of Rs. 2,28,392 should be subjected to tax at the companycessional rates mentioned in the Schedule to the Order as held by the High Court The assessee, is a Hindu Undivided Family with its Head- office at Indore and branches at several other places in some of the former B States -including tile State of Madhya Bharat. It derived its income from several sources such as property, businesses, managing agency companymission, shares in partnership, firms, etc. The assessees family at one time was carrying on business at Bombay and was assessed in the status of number-resident Hindu Undivided Family. Its business in Bombay was, however, closed down sometime in 1945 and numberassessment was made on it for the year 1948-49 and 1949-50. Till the assessment year 1947-48, the previous year adopted by the assessee was the appropriate claimed that in respect of its income by way of companymission from the managing and selling agency of the Binod Mills Ltd., Ujjain its previous year was one ending on March 31, 1950 and on that basis it companytended that the companymission accrued to it during the calendar year 1948 companyld number be brought to tax. This companytention was number accepted by the Income Tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal. They took the view that the case of the assessee is companyered by the proviso to s.-2 I 1 i a of the Income-Tax Act, 1922 in short the Act . According to their view, the assessee had once been assessed. Therefore it was number open to it to vary its previous year. In view of that finding, the assessee was assessed on the basis that the Diwali year beginning from 2nd November, 1948 and ending on October 21, 1949 is the relevant account year. In that account year, the assessee derived. net dividend income of Rs. 2,62,860 from the Binod Mills Ltd., Ujjain. Out of this income Rs. 34,468 were attributable to the profits that accrued or that companyld be deemed to have been accrued to the Binod Mills in Part A State. But the remaining amount of Rs. 2,28,392 was held to be attributable to profit-, which accrued in Part B State viz. Madhya Bharat. As- the dividend income attributable to profits accruing in Part A State was subject to tax under the Act, the Income Tax Officer grossed up the net dividend of Rs. 34,468 to Rs. 50,137 under s. 16 2 of the Act. This income was subjected to income tax and super- tax at the rates prescribed by the Finance Act, 1950, rejecting the claim of the assessee for companycession in regard to this income under the Order. The balance of Rs. 2,28,392 was number subjected to any income-tax in view of the provisions companytained in paragraph 12 of the Order. It was, however, subjected to super-tax at the companycessional rates mentioned in the Order. The Tribunal rejected the companytention of the assessee that the dividend income of Rs. 2,28,392 was number subject to super-tax under paragraph 12 of the Order and that the amount of Rs. 2,62,860 should number have been apportioned as the Income-Tax Officer had done as neither income-tax number supertax was leviable on those profits and in, any case, super-tax was. payable on the entire dividend income, only at the companycessional ,rates. On a reference made under s. 66 I of the Act, the High Court held that the previous year in respect of the managing agency and selling agency sources of income is the financial year ending March 31, 1950. With regard to the other question, the High. Court held, that the income-tax payable on the, entire dividend income included in the total income after exclusion of the number-taxable dividend under paragraph 12 of the Order would be at the companycessional rates prescribed in the Order and further that the assessee is liable to pay super-tax at the companycessional rates mentioned in that Order on the entire dividend income. Hence this appeal. So far as the first question is companycerned viz. whether the assessee was entitled to take the financial year as the relevant previous year. the same is companycluded by our decision in Commissioner of Income Tax, Madhya Pradesh v. Karchanbai Civil Appeal No. 19 of 1969 , just number delivered. For the reasons mentioned therein the decision of the High Court on this point is companyfirmed. This takes us to the second question namely whether the dividend income of the assessee should have been assessed both for the purpose of income-tax as well as super-tax at the rates prescribed in the Schedule to the Order. The High Courts finding that the dividend income accrued or received by the assessee in Madhya Bharat is subject to supertax as well as its finding that a part of dividend income is subject to income-tax bad number been appealed against., Hence it is number necessary to go into that question. Therefore the question that remains for examination is whether the High Court was right in holding that the income-tax and super-tax leviable on the dividend income is at the companycessional rates mentioned in the Order. It may be numbered that in Madhya Bharat till April 1, 1950, there was numberstate law relating to the charge of income-tax and super-tax. Paragraph 3 v of the Order defines the expression State rate of tax. The explanation to that definition says Where there was numberState law relating to charge of income-tax and super-tax, the rates of income-tax and super-tax in force in that State immediately before the appointed day in the present case 1st day of April, 1950 , shall, for the purposes of this clause, be deemed to be the rates specified in the Schedule. Paragraph 4 i says that the provisions of paragraphs 5, 6, sub-paragraph 1 of paragraph 11, 12 and 13 of this Order shall apply in the case of any other assessee who is number resident in the previous year in the, taxable territories or in the taxable territories other than Part B States, to so much of the income, profits and gains included in his total income as accrue or arise in any Part B State and are number deemed to accrue.or arise, or are number received or deemed to be received within the meaning of clause a of sub-section 1 of section 4 of the Act, in the taxable territories other than the Part B States. The assessee in the relevant previous year was a resident of Madhya Bharat. His income with which we are companycerned in this appeal exclusively accrued or arose in Madhya Bharat. Therefore the assessed is entitled to the benefit of paragraphs, 5, 6, sub-paragraph 1 of paragraph 11, 12 and 13 of the Order. Paragraph 5 deals with the income of a previous year chargeable in the Part B State in 1949-50. The assessees case does number fall within its scope. Paragraph 6 deals with income of, a previous year which does number fall under paragraph 5. That paragraph to the extent it is material for our present purpose reads The income, profits and gains of any previous year ending after the 31st day of March, 1949, which does number fall within paragraph 5 of this order shall be assessed under the Act for the year ending on the 3 1st day, of March, 1951 or on the 31st day of March, 1952, as the case may be, and the tax Payable thereon shall be determined as hereunder In respect of so much of the income, profits and gains included in the total income as accrue or arise in any State other than the States of Patiala and East Punjab States Union and Travancore Cochin- the tax shall be companyputed a at the Indian rate of tax and b at the State rate of tax in force immediately before the appointed day where the amount of tax companyputed under subclause a of clause i exceeds the tax companyputed under amount of tax companyputed under sub-clause b of clause i , the amount of the first mentioned tax shall be the tax payable where the amount of tax companyputed under subclause a of clause i exceeds the tax companyputed under sub-clause b of clause i the excess shall be allowed as a rebate from the first-mentioned tax and the amount of the first- mentioned tax as so reduced shall be the tax payable. The provisos to that paragraph are number relevant for our present purpose. In view of clauses 1, to 3-of paragraph 6 read with explanation to paragraph 3 v , the tax payable by the assessee, income,-tax as well as super-tax has to be companyputed on the basis of the formulae given in paragraph 6. In other words, the assessment will have to be made at the companycessional rate mentioned in the Schedule to the Order. Paragraph 12 of the Order deals with dividends. It reads Where the total income of an assessee chargeable to tax for the assessment for the year ending on the 3 1 St day of March, 1951, includes any income from dividends paid by a companypany registered in a State in which there was numberState law relating to the charge of incometax and super-tax and the dividend is paid out of profits which were number liable to be taxed, in whole or in part, either in the State or in the taxable territories, numberincome-tax shall be payable by the assessee on such proportion of the dividend as the number- taxable profits of the companypany arising in the State bear to the total income of the companypany. The income with which we are companycerned in this case is dividend income. It was paid by a companypany registered in a B State in which there was numberstate, law relating to the charge of income-tax and super-tax. The department does number dispute that the dividend income of Rs. 2,28,392 is only subject to super-tax and numberincome-tax is leviable thereon. In other words it does number companytest the finding that that dividend income falls within the scope of paragraph 12 of the Order. Once that is companyceded, as has been done, then there can be numberdoubt, in view of paragraph 6 of the Order that on that amount super-tax has to be levied only at the companycessional rate prescribed in the Schedule to the Order. Reading paragraph 3 v , 6 and 12 together, the position that emerges is that the assesses is liable to pay income-tax on Rs. 50,137 at the rates mentioned in the Schedule to the Order and further he is also liable to pay super-tax on the entire dividend income at the rates mentioned in the Schedule to that Order.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION ORIGINAL JURISDICTION Civil Appeal No. 1528 of 1968. Appeal by special leave from the order of March 18, 1968 of the Gujart High Court in Special Civil Application No. 365 of 1968 and Civil Appeals Nos. 1900 and 2118 of 1968. Appeals from the judgment and order dated May 14, 1968 of the Delhi High Court in Civil Writ Petitions Nos. 343 and of 1968 and Petitions under Art. 32 of the Constitution of India for the enforcement of the fundamental rights. N. Shroff, for the appellant in C.A. No. 1528 of 1968 . S. Bobde, G. L. Sanghi, V. K. Sanghi and S. S. Khanduja, for the appellant in C.A. No. 1900 of 1968 . B. Agarwala, Virendra Kumar, S. S. Pareikh, Uma Mehta and S. S. Khanduja, for the appellant in C.A. No. 2118 of 1968 . The petitioner appeared in person in W.P. No. 109 of 1968 . The petitioner appeared in person in W.P. No. 234 of 1968 . The petitioner appeared in person in W.P. No. 402 of 1968 . B. Agarwala, B. N. Antani and R. K. Bhatt, for the petitioner in W.P. No. 403 of 1968 . S. Bobde and S. S. Khanduja, for the petitioner in P. No. 409 of 1968 . K. Daphtary, B. Sen, R. H. Dhebar and S. P. Nayar, for the Union of India in C.A. Nos. 1528, 1900 and 2118 of 1968 and W.P. Nos. 234, 402 and 403 of 1968 . R. Rajagopal R. H. Dhebar and S. P. Nayar, for the Union of India in. W.P. No. 109 of 1968 . K. Daphtary, B. Sen, A. Sreedharan Nambiar, R. H. Dhebar and S. P. Nayar, for the Union of India in W.P. No. 409 of 1968 . H. Dhebar and S. P. Nayar, for the State of Gujarat. The Judgment of HIDAYATULLAH, C.J., RAMASWAMI, MITTER and GROVER, JJ. was delivered by HIDAYATULLAH, C.J. SHAH, J. delivered a separate Opinion. Hidayatallah, C.J. These are five writ petitions under Art. 32 of the Constitution and three appeals against the decisions of, the High Courts of Gujarat and Delhi. The writ petitions have been filed by Mr. Manikant Tiwari W.P. No. 109/68 , Mr. Shiv Kumar Sharma W.P. No. 234/68 , Mr. Madhu Limaye W.P. No. 402/68 , Mr. Gulabshankar Amritlal Dholakia W.P. No. 403/68 and Mr. Node Sadi Rau W.P. No. 409/68 . The appeals from the Delhi High Courts companymon judgment, 14 May, 1968 on certificate are by Mr.Shiv Kumar Sharma C.A. No. 2118/68 and Major Ranjit Singh C.A. 1900/68 and the appeal from the decision of the Gujarat High Court is in a writ petition filed by Mt. Maganbhai lshwarbhai Patel C.A. No. 1528/68 . The Gujarat High Court, 18 March, 1968, dismissed the petition summarily and the appeal is by special leave of this Court. This judgment will dispose of all of them. The several petitioners seek a writ of mandamus or any other appropriate writ or order or direction under Article 32 of the Constitution to restrain the Government of India from companying without the approval of Parliament the areas in the Rann of Kutch known as Kanjarkot, Chhadbet, Dharabanni, Priol Valo Kun and two inlets on either side of Tharparkar to Pakistan as awarded to it in the award, 19 February, 1968, of the Indo-Pakistan Western Bombay case Tribunal. Mr. 1. N. Shroff C.A. No. 1528/68 , Mr. A. S. Bobde C.A. No. 1900/68 and Mr. C. B. Agarwal W.P. No. 403/68 represented three such petitioners. Mr. Shiv Kumar Sharma, Mr. Madhu Limaye and Mr. Manikant Tiwari argued their own matters. The Union of India was represented by Mr. C. K. Daphtary, former Attorney General of India, who had also companyducted the case for India before the Tribunal. The Indian Independence Act of July 18, 1947, an Act of the British Parliament created from August 15, 1947 two domi- nions known as India and Pakistan. By the same statute the paramountcy of the British Crown over the States of Kutch Santalpur, Tharad, Suigam, Way and Jodhpur lapsed and they soon acceded to and merged with India. The former British Indian Province of Sind was included in Pakistan while the Presidency of Bombay was part of India. Between these two lies the Great Rann of Kutch, Sind shutting on the North and West and the Indian mainland on the South and East. The Rann is a vast expanse of water and desert. For part of the year even the desert is companyered by water. At other times it is either soft mud or land with grass. No one ordinarily lives in that area which the onagers roam at large. It appears that from July 1948 Diplomatic Notes were ex- changed between the two Governments with regard to the boundary between the areas known as Gujarat and West Pakistan. The difference led to open hostilities in April 1965. On June 30, 1965 the two Governments reached an agreement which read Constitution of the Tribunal, Proceedings. On 30 June, 1965, the Government of India and the Government of Pakistan companycluded an Agreement, reading as follows Whereas both, the Governments of India and Pakistan have agreed to a cease-fire and to restoration of the status quo as at 1 January, 1965, in the area of the Gujarat-West Pakistan border in the companyfidence that this will also companytribute to a reduction of the present tension along the entire Indo-Pakistan border Whereas it is necessary that after the status quo has been established in the aforesaid Gujarat-West Pakistan border area, arrangements should be made for determination and demarcation of the border in that area NOW, THEREFORE, the two Governments agree that the following action shall be taken in regard to the said area Article 1 There shall be an immediate cease-fire with effect from 0030 hours GMT on 1 July 1965. Article 2 On the cease fire All troops on both sides will immediately begin to withdraw This process will be companypleted within seven days Indian police may then, reoccupy the post at Chhad Bet in strength numbergreater than that employed at the post on 31 December 1964 Indian and Pakistan police may patrol on the tracks on which they were patrolling prior to 1 January 1965, provided that their patrolling win number exceed in intensity that which they were doing prior to 1 January 1965 and during the monsoon period will number exceed in intensity that done during the monsoon period of 1964 If patrols of Indian and Pakistan police should companye into companytact they will number interfere with each other, and in particular will act in accordance with West Pakistan- India border ground-rules agreed to in January 1960 Officials of the two Governments will meet immediately after the cease-fire and from time to time thereafter as may prove desirable in order to companysider whether any problems arise in the implementation of the provisions of paragraphs to v above and to agree on the settle- ment of any such problems. Article 3 In view of the fact that India claims that there is numberterritorial dispute as there is a well established boundary running roughly along the numberthern edge of the Rann of Kutch as shown in the pre-partition maps, which needs to be demarcated.on the ground. Pakistan claims that the border between India and Pakistan in the Rann of Kutch runs roughly along the 24th parallel as is clear from several pre-partition and post-partition documents and therefore the dispute involves some 3,500. square miles of territory. At discussions in January 1960, it was agreed by Ministers of the two Governments that they would each companylect further data regarding the Kutch-Sind boundary and that further discussions would be held later, with a view to arriving at a settlement of this dispute as soon as officials have finished the task referred to in article 2 vi , which in any case will number be later than one month after the cease-fire, Ministers of the two Governments will meet in order to agree on the determination of the border in the light of their respective claims, and the arrangements for its demarcation. At this meeting and at any proceedings before the Tribunal referred to in article 3 ii and iv below, each Government will be free to present and develop their case in full. In the event of numberagreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease-fire, the. two Governments shall, as companytemplated, in the Joint Communique of 24 October, 1959, have recourse to the Tribunal referred to in iii below for determination of the border, in the light of their respective claims and evidence produced before it and the decision of the Tribunal shall be final and binding on both the parties. For this purpose there shall be companystituted, within four months of the cease- fire a Tribunal companysisting-of three persons, numbere of whom would be a national of either India or Pakistan. One member shall be numberinated by each Govern and the third member, who will be the Chairman, shall be jointly selected by the two Governments. In the event of the two Govern- ments failing to agree on the selection of the Chairman within three months of the cease fire, they shall request the Secretary-General of the United Nations to numberinate the Chairman. The decision of the Tribunal referred to in iii above shall be binding on both Govern- ments and shall number be questioned on any ground whatsoever. Both Governments undertake to implement the findings of the Tribunal in full as quickly as possible and shall refer to the Tribunal for decision any difficulties which may arise between them in the implementation of these findings. For that purpose the Tribunal shall remain in being until its findings have been implemented in full. The cease-fire came into effect as provided in Article 1 of the Agreement. As a result of this agreement the Government of India numberi- nated Ambassador Ales Bebler, Judge of the Constitutional Court of Yugoslavia, the Government of Pakistan numberinated Ambassador Nasrollah Entezam,of Iran and former President of the General Assembly of the United Nations. The two Govern- ments having failed to agree on the selection of the Chairman of the Tribunal, the Secretary-General of the United Nations, under the power reserved by sub-paragraph of Article 3 of the Agreement, numberinated Judge Gunnar Lagergren, number President of the Court of Appeal for Western Sweden. In the companyrse of the hearing a companypromise on the procedure for the demarcations of the boundary was settled. Memorials, Counter-Memorials and Final Memorials were submitted along with numerous Maps, and documents. The oral hearings began on September 15, 1966 and companytinued with some breaks till July 14, 1967. During the hearing about 10,000 pages of minutes and Verbatim Records were made and about 350 maps were exhibited. At an early stage in the hearing Pakistan raised the ques- tion that the dispute be decided ex aequo et bono which request was opposed by India. The Tribunal did number find that the Agreement of June 30, 1965 authorised it clearly and beyond doubt to adjudicate ex aequo et bono. The parties did number companyfer this power by a Special Compromis even thereafter. The case on the part of India was pro pounded with the aid of map A which was a mosaic of Indian Maps B-44, B-37, B-19, and B-20. Pakistan claimed the boundary as marked on Map B. The award has delineated the boundary in Map C. Maps A and B and C form part of the Award. In describing the matter in dispute the Tribunal observed India claimed that the Tribunal determine the alignment of the entire boundary between West Pakistan and Gujarat from the point at which the blue dotted line meets the purple line in Indian Map B-44 in the west to the North-Eastern Trijunction in the east as it appears in the Indian Maps B-44, B-37, B-19 and B-20 where the companyrect alignment is shown by appropriate boundary symbols. The Government of Pakistan claimed that The Tribunal determine that the border between India and Pakistan is that which is marked with green-yellow, thick broken line in the Pakistan Claim Map It is companymon ground that the Gujarat-West Pakistan boundary stretches from the, mouth of the Sir Creek in the west to a point on the Jodhpur boundary in the east. The Parties agree that the Western Terminus of the boundary to be determined by the Tribunal is the point at which the blue dotted line meets the purple line as depicted in Indian Map B-44 and the Pakistan Resolution Map, and that the Eastern Terminus of the same boundary is a point situated 825.8 metres below pillar 920 on the Jodhpur boundary as depicted in Pakistan Map-137. This agreement leaves out of the matters submitted to the Tribunal the portion of the boundary along the blue dotted line, as depicted in Indian Map B-44 and the Pakistan Resolution Map, as well as the boundary in the Sir Creek. The blue dotted line is agreed by both Parties to form the boundary between India and Pakistan. In view of the aforesaid agreement, the question companycerning the Sir Creek part of the boundary is left out of companysideration. The dispute thus remained with regard to the boundary outside these agreements. The Tribunal described this dispute in the following words From the Western Terminus, the boundary claimed by India takes off to the numberth and that claimed by Pakistan to the south and from the Eastern Terminus, the boundary claimed by India takes off to the south-west while the boundry claimed by Pakistan turns south-east. Both parties agree that before Independence the boundaries between the Province of Sind, on the one hand, and one or more of the Indian States on the other hand, were companyterminous. Therefore, in the disputed region, apart from India and Pakistan there is numberother State that does or companyld have sovereignty. There is between India and Pakistan a companyterminous boundary today, whether or number there was at all times a companyterminous boundary between Sind and the Indian States. Pakistan companytends that, should the Tribunal find that the Province of Sind and the Indian States were number fully companyterminous, then the area between Sind and these States would be an undefined area, falling outside the scope of the Indian Independence Act, 1947. In such an event, the companyterminous boundary between India and Pakistan would have to be determined by the Tribunal on the basis of rules and principles applicable in such circumstances. Pakistan adds that the evidence produced by it in this case is in support of its principal submission, although some of it companyld also be used in support of its alternative submission. Both parties agree that the Rann was number a tribal area as defined in Section 311 of the Government of India Act, 1935. Each party states that the boundary claimed by it is the traditional, well-established and well-recognised boundary. Pakistan thus claimed in addition to the establishment of a median line roughly along the 24th parallel, what it called the upper lands in dispute and the numberthwestern part of it which it called the jutting triangle. These included Dhara Banni, Chhadbet, Pirol Valo Kun, Kanjarkot, Vighokot and Sarifbela and these were said to be number part of the Rann. India on the other hand stated that the Rann means the Rann lying to the east of the vertical line and to the south of the horizontal line as depicted in Map A. Pakistan maintained that the Rann lay to the east of what was once known as the Khori river and that the lands were part of Sind and referred to the same as the delta lands. L7sup. CI/69-18 The above in brief is the, outline of the dispute as presented to the Tribunal. Although the AWard of the Tribunal it before us it was necessary to make this brief mention because we are required to reach a decision whether this was a clear case of cession of territory following the, award, which it is claimed makes it incumbent for the executive authority in India to obtain the approval of Parliament by suitable amendment of our Constitution, before effectuating the Award. The Tribunal was number unanimous in its decision. Judge Ales Bebler accepted almost in its entirety the claim of India. Ambassador Nosrollah Entezam upheld the Pakistani claim. The Chairman then delivered his opinion. On the propounding of his opinion Ambassador Entezam gave his opinion as follows Opinion of Mr. Entezam In an early stage I companysidered that Pakistani had made out a clear title to the numberthern half of the am shown in the survey maps as Rann. I have number had the advantage of reading the opinion of the learned Chairman, and in the light of it I companycur in and endorse the judgment of the learned chairman. The Tribunal thereupon ruled thus The alignment of the boundry described in the opinion of the chairman and endorsed by Mr. Entezam has obtained the required majority. It is therefore the boundary determined by the Tribunal. The Chairman prefaced his companyclusions by observing For the reasons number given, and with due regard to what is fair and reasonable as to details I companyclude oft the great issue before me that the boundary between India and Pakistan lies as follows. Reference is made here to the Award Map Map C . Because of the imprecise topographical features in the region and the impossibility of exactly delimiting many acts of State authority,, the boundary must sometimes be represented by approximate straight lines. The Chairman then indicated the exact location of the boun- dary determined by him which was also delineated by him on the Map C. The new boundary begins at the numberthern tip of the Khori Creek and after going straight up numberth reaches the mainland of Sind and then follows roughly the companyfiguration of the land till it companyes south of Rahim ke bazar. It thus follows Erskines Survey. Thereafter instead of following the mainland it dips to the South East just South of Sadariajagot and then goes up North West to join the maintained and to follow the boundary symbols. In the triangle, so formed is situated the Kanjarkot area which is the first limb of the disputed territory brought to the fore before us. After following the line of the mainland and the existing boundary symbols the new boundary again dips to the South East to a point a little numberth of the 24th parallel and runs parallel to it thus embracing Dharabani and Chhadbet to Pakistan. Thereafter it goes numberth to join the main land of Sind again and follows the boundary symbols which it follows till it reaches the Nagar Parkar area. This is a kind of a peninsula jutting to the South. On the West and East sides of Nagar Parkar there are two narrow but deep inlets. The new boundary instead of running along the banks of the inlets jumps across the two inlets at their southern extremities, thus including them in Pakistan. The inlets, therefore, are the fourth and fifth limbs of the disputed territory of India which the petitioners claim has been lost to India by the Award. The new boundary thence proceeds along the mainland till it reaches the demarcated boundary at the Jodhpur and from where the boundary is number in dispute just as the boundary from Sit Creek to Khori Creek has number been, in dispute. In drawing up the border the Tribunal based itself on much historical matter and old maps. In the opinions of Judge Ales Bebler and the Chairman Ambassador Entezam companycurring with the Chairman this historical material has been differently interpreted but we are number companycerned with it. The reference was also number decidedas a cartographic dispute.It was settled by an ad hoc award.No special reasons were given by the Chairman why he included 350 sq. miles in pakistan when he dippedthe boundary to the South into the Rann of Kutch except when he came to-consider the question of, the two inlets on the two sets of Nagar Parkar. In this companynection he observed The two deep inlets on either side of Naga Parkar will companystitute the territory of Pakistan. Al. ready in. 1855, the Deputy Commissioner of Thar Parkar pointed out that if these inlets were to be companysidered Kutch territory. a glance at the map will show that Parkar would be a peninsula almost entirely surrounded by Kutch territory. The Kutch State companyld erect fortifications and establish Custom houses at places situated many miles within the district for instance close to Verrawah, or on some of the roads which, crossing inlets of the Rann, lead from one part of this district to another. Pak. Doc. D. 9 . In my opinion it would be inequitable to recognise these inlets as foreign territory. it would be companyducive to friction and companyflict. The paramount companysideration of promoting peace and stability in this region companypels the recognition and companyfirmation that this territory, also be regarded as such. The points, where the boundary will thus cut off the two inlets are these At the westerns inlet, the boundary will leave the boundary symbols indicated on Indian Map B-34 at the point marked thereon as 26, more precisely where the cart track is indicated as departing from the edge of the Rann in a southeasterly direction. This point is indicated as Point L on Map C. on the other side of the inlet, the point will be that where the camel track is indicated on Indian Map B-34 to reach the edge of the Rann that point is indicated as point M on Map C. Between Points L and M, the boundary shall be a straight line. The boundary will cross the eastern inlet at its nar-rowest point in a straight line between Points N and O marked on Map C. In straightening the line to avoid a jagged boundary the Chairman gave the following reason The boundary marked by symbols along the outer edges of the peninsula of Nagar Parkar and up to the Eastern Terminus is a jagged one. As such it is unsuitable and impracticable as an international boundary. The boundary shall accordingly lie in companyformity with the depiction on Map C between the outer points on jutting-out tongues of land from Point M and until the Eastern Terminus, marked as ET on Map C. At numberpoint. between the two Terminii shall the alignment of the boundary as above described be such as to include in India territory number claimed by India, as defined by the depiction of Indias claim line on Map A. It might be added that the boundary proposed by me for the greater part of its length roughly companyncides with the boundary proposed by my learned companyleague, Mr. Bebler. This in brief is the decision of the Tribunal. We number pro- ceed to the companysideration of the Matters before us. There are seven parties before us seeking to restrain the Government of India from making over the areas of Kanjarkot, Dharabanni Chhadbet and the two inlets to Pakistan by sheer executive act and insist that the necessary change can only be effected by a companystitutional amendment of the territories of India as indicated in the Constitution. It may be Pointed Out that numbere of the petitioners companytends that the Award should be rejected. This is as it should be, India was voluntarily a party to an agreement pledging its honour to respect the Award. According to J. H. Rolston International Arbitrations from Athens to Locarno pacific settlement of international disputes through a binding award on the basis of an undertaking voluntarily accepted is founded on the same principles as are to be found in the companycept of Arbitrations in Municipal Law. The history of such arbitrations begins in modem times from the Jay Treaty between Great Britain and the United States of America of November 19, 1794 to settle the boundary disputes after Independence in 1776 through Mixed Commissions. The Commissions settled the exact position of the Sainte Croix River and the decision was regarded by both sides as final and companyclusive so that the same shall never thereafter be called in question or made the subject of dispute or difference between them. The rules of such arbitrations were settled by the Alabama Arbitrations in 1871 and the basis of the rules is the maxim Pacta Sunt Servanda. Indeed the Hague Convention of 1907 Art. 37 companytained the rule Recourse to arbitration implies an engagement to submit loyally to Awards. There have been innumerable arbitrations between nations. Several books companytain Surveys of these arbitrations and awards. Stuyt lists 407 between 1794 and 1938 and writers like Moore, La Fontaine, Lapradelle, Darby etc. have made other companypilations, the most companyplete being by Moore. Nantwi brings the list down to 1967 and also lists separately the awards which were number companyplied with. An examination of such awards only reveals that generally an award is number accepted when the terms of submission are departed from or there are fatal omissions, companytradictions or obscurities or the arbitrators substantially exceed their jurisdiction. None of these factors obtains here. Since the award has been accepted by our Government it is binding. The parties also do number want that it be rejected. The only question raised in these matters is how it is to be implemented. Before we deal with the problem we wish to say something about the standing of the petitioners since it appears to us that most of them have numberdirect interest to question the action of Government or to raise any companytroversy regarding the implementation of the Award. Before the hearing companymenced we questioned each petitioner as to the foundation of his claim. We discovered that ,most of the petitioners had numberreal or apparent stake in the areas number declared to be Pakistan territory. These persons claim that they had and still have the fundamental rights guaranteed to them by Art. 19 1 d e and f , that is to say, the right to travel, to reside or settle down, or to acquire, and hold property in these areas. None of them has so far made any move in this direction but their apprehension is that they will be deprived of these rights in the future This our judgment, is too tenuous a right to be numbericed by the companyrt in administering the law and still less in enforcing fundamental rights. When we companymunicated our view at an earlier hearing, some more petitioners came forward Mr. Madhu Limaye puts forward the supporting plea that he had attempted to penetrate this area to reconnoiter possibilities for settlement, but was turned back. In this way he claims that he had attempted to exercise his fundamental rights and they were infringed. Another party claims to have had a lease of grass lands some ten years ago in this area and he is number to be deprived of the right to obtain a similar lease. Lastly one of the parties put forward the plea that he lives in the adjoining territory and thus has interest in the territories proposed to be ceded to Pakistan. These petitioners too have very slender rights if at all. The only person who can claim deprivation of fundamental rights isMr. Madhu Limaye, although in his case also the companynectionwas temporary and almost ephemeral. However, Wedecided to hear him and as we were to decide the question we heard supplementary arguments from the others also to have as much assistance as possible. But we are number to be taken as establishing a precedent for this Court which declines to issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. From this point of view we would have been justified in dismissing all petitions except perhaps that of Mr. Madhu Limaye. We may number proceed to the companysideration of the rival companytentions. The petitioners attempt to establish that this territory is a part of India and has always been so from the establishment of the two dominions, that India has exercised effective administrative companytrol over it and that. giving up, a claim to it involves a cession of Indian territory which can only be effected by a companystitutional amendment. As to the details of the steps which, in the, petitioners view establish these facts, we shall companye later. This in very brief is the gist of the petitioners case. The reply on behalf of the government of India is equally brief. It is that number cession of territory is involved, since the boundary was always uncertain owing to the shifting nature of the sea and sands and that the effective administrative companytrol amounted to numbermore than establishing a police outpost with a personnel of 171 persons for watch and ward and that too after the exchange of Diplomat Notes began and that the dispute companycerns the settlement of boundary which was uncertain. It is thus companytended that the true areas of Pakistan and India have number been demarcated without cession of what may be called undisputed Indian territory. According to the Government of India the Award itself is the operative treaty and after demarcation of the boundary it will only be necessary to exchange letters recognising the established border. The case lies within this narrow companypass. Before we deal with the points in dispute and them relied upon by the rival parties in support thereof we wish to say a few words on the implementation of treaties in general and arbitration awards in boundary disputes in particular. The practice of companyntries is different but the diverse possible approaches to the question appear from an examination of the practice obtaining in the United States, France, the United Kingdom and in British India. An examination of these practices will enable us to see how the, matter is to be viewed in this case and in companytext of our Constitution and the existing rulings of companyrt. A treaty really companycerns the political rather than the judicial wing of the State. When a treaty or an award after arbitration companyes into existence, it has to be implemented and this can only be if all the three branches of Government, to wit, the Legislature, the Executive and the Judiciary, or any of them, possess the power to implement it. if there is any deficiency in the companystitutional system it has to be removed and the State must equip itself with the, necessary power. in some jurisdictions the treaty or the companypromis read with the Award acquires fun effect auto- matically in the, Municipal Law, the other body of Municipal Law numberwithstanding. Such treaties and awards are self-exe- cuting. Legislation may nevertheless be passed in aid of implementation but is usually number necessary. In the United States of America a treaty companycluded with a foreign State by the, President of the United States alone, without the companysent of the Senate,, is number, according to their Constitution, binding upon the Nation and the foreign power derives numberrights under it See Mc Nair Law of Treaties p. 80 quoting from Crandall Treaties, Making and Enforcement chapter XIV . As Chief Justice Taft puts it a treaty is the supreme law and a treaty may repeal a statute and vice versa. It is only when the terms of a treaty require that a law must be passed that it has to be so passed Foster v. Nielsen 2 Peters 253 See also Dickinson Law of Nations 1057. The position regarding the United States is quite clear. In other nations different practices exist. In the French Constitution of the 4th October, 1958 Title VI Article 52 enables the President to negotiate and ratify treaties and he is informed of the negotiation of any international agreement number subject to ratification. Article 53 names the treaties that require ratification by law. They, inter alia involve the cession, exchange or addition of territory. They take effect only after having been ratified or approved. No cession, exchange or addition of territory is valid without the companysent of the populations companycerned. However it is number laid down how companysent is to be obtained. Treaties or agreements regularly ratified or approved have, from the time of publication, an authority superior to that of laws, provided, in the case of each agreement or treaty, that it is applied also by the other party Article 55 . If the Constitutional Council companysulted by the President of the Republic, the Prime Minister or the President of either assembly, has declared that an international obligation includes a clause companytrary to the companystitution, authorisation to ratify or approve it may be accorded only after revision of the Constitution Article 54 . The Constitution thus makes provision for all companytingencies. Even though the Kings of France had power expressly companyferred by the Constitutional Charter of 1830, the French Jurists denied the jurisdiction and power to the King to companye territory. The English practice, has like all other British Institutions, grown with time. Blackstone has the following remark Whatever companytracts he the sovereign engages in, numberother power in the kingdom can legally delay, resist or annul. Kent in his Commentaries Vol. 1 p. 175, 10th Edn. says the power companypetent to bind the nation by treaty may alienate the public domain and property by treaty. Forsyth in his Opinions gives the reason that if the Nation has companyferred upon its supreme executive without reserve the right of making treaties, the alienation is valid because it is then made by the reputed will of the Nation. England, however,, soon began to make a distinction between territory ceded as a free gift in time of peace without a treaty and that ceded as a result of a war. Forsyth asked the question whether the Crown had the ,power to alienate British territory by treaty, number following the dose of a war as for instance, by a companymercial treaty and answered that the proposition seemed questionable. He observed I should doubt very much whether the Crown, without the authority of Parliament, would have the legal power to cede by treaty the Channel Islands to France, there having been numberwar, and the cession number being made as part of the adjustment of a quarrel between the two companyntries. Without a treaty the power to cede territory in time of peace was always denied. Forsyth cites Grotius de jure Belli et Pacis Vol. 11 c. 6. ss. 3-8 Puffendorf Vol. viii C. 12, Vattel Vol. 1 C. 20 s. 224, c. 21 s. 260, Livy Vol. IV c 2 s. 1 1 and Phillimore Part III c. 14 ss. 261, 262. At the, time of the cession of East Florida to Spain Lord Loughborough maintained that the Crown possessed numberpreroga- tive to cede British Territory to a foreign State without authority of Parliament but Lord Thurlow Lord Chancellor said that this was based on the lucubrations and fancies of foreign writers which he rejected. However Britain was then at war with Spain and the cession was under a treaty of peace. In 1863 the House of Commons debated the transfer of Ionian Islands. Lord Palmerston. observed But with regard to cases of territory acquired by companyquest during war, and number ceded by treaty, and which are number therefore British freehold, and all possessions that have been ceded by treaty and held as possessions of British Crown, there is numberquestion that the Crown may make a treaty alienating such possession without the companysent of Parliament. Lord Palmerston cited the examples of Senegal, Minorce, Florida and Isles of Banca. See Hansard Part Debates Vol. CLXIX p. 230-231 . These were however cessions made by treaties of peace at the end of wars. Lord Mc Nair gives the settled law of modem times. Accord- ing to him in the United Kingdom the companycurrence of Parliament must always be obtained except in a very small number of cases. He opines that if the companyrts are required to assist in the implementation, a law must obviously be found for companyrts act only in accordance with law. If a law is obligatory obviously Parliament must have a say because numberlaw can be passed except by Parliament. However, even if a law be required, and yet the Crown enters into a treaty, the companyrts take the act as final unless a law stands in the way. In other words unless there be a law companyflicting with the treaty, the treaty must stand. In this companynection it is profitable to read what Lord Phillimore then Sir Robert Phillimore said in the Parliament Belge case 1 . That case was reversed on appeal in 5 P.D. 197 but on another point. See also Walker v. Baird 2 .As was observed by Lord Atkin in Attorney General for Canada v. Attorney General for Ontario 3 the position may be summed up thus there is a distinction between 1 the formation and 2 the performance of the obligation. The first is an executive act the second a legal act if a law is required. 1 4 P.D. 129. 3 1937 A.C. 326 at 347. 2 1892 A.C. 491. The performance then has numberforce apart from a law that is to say unless Parliament assents to it and Parliament then accords its approval to the, first executive act. The treaties created by executive action bind the, companytracting parties and, therefore, means must be found for their implementation within the law. This is illustrated by a few examples. The Executive authority in the State cannot.acquire new rights against the citizens by making treaties with foreign powers. Therefore whenever peace treaties involved municipal execution many statutes had to be passed. Again new offences cannot be created by the, more fact of companyventions on entered into with other powers. Both principles obtain in India. The Indian statute book companytains numerous examples of companyventions which have led to the passing of Municipal Laws. The Civil Court Manual devotes many pages to such statutes, too numerous to be mentioned here and the penal law of India also affords examples One such is the law against obscenity in India which was the direct result of 4 companyvention. In the United Kingdom there is almost a binding companyvention that cession of British territory requires approval of Parliament in the form of a statute but it must clearly have been the freehold of Britain. But even here Parliamentary sanction is number required for cession or abandonment of territory acquired previously by companyquest or cession or otherwise wrongly in British possession. The cases of abandonment by the Crown of sovereignty over the various mandated territories are in point. Many of them were given up without an Act of Parliament. The protocol respecting the boundary between Tanganiyika territory and the Belgian mandated territory of Ruonda-ulandi, on August 5, 1924 involving a small territory was never enacted as a law. In 1925 it was ruled that cession of. territory which never formed part of a self- governing dominion was a royal prerogative although it was desirable that approval of Parliament be obtained. A giving up of doubtful claims to territory is number companysidered to be of the same standing as a cession of territory known to be that of the Crown. The tendency however is to have parliamentary sanction when British territory is ceded. This is provided in the very treaty itself and it is made subject to Parliaments approval. The present practice of Crown is to obtain either prior sanction of Parliament or to seek ratification after it. This is done by laying the treaty on the, table of both Houses for 21 days, after which time it is treated as ratified. Although the practice since 1924 is to submit treaties to Parliament by laying them on the table of the two Houses known as the Ponsonby rule , there have been in the past numerous instances of treaties implemented by the Crown without reference to Parliament. These exceptions were companynected with circumstances of companyvenience and public policy that is to say to avert a war, for companysideration of territory or for rectification of boun- daries. A few examples of such action in time of peace may be given. In 1824 in treaty with Netherlands, Great Britain ceded Sumatra and the settlement of Bencollen. In 1859-60 the Bay Islands were transferred to Honduras. In 1867 in treaty with Netherlands an exchange of territory took place. The Orange River Territory was transferred by an order in Council. In 1697 by the Treaty of Reyswick Hudson Bay territory was given back to the French. In 1813 by the Treaties of Stockholm the Island of Guadelope was ceded to Spain. A cession of Mosquito Shore was made to Nicaragua. All those were in time of peace and without Any reference to Parliament Hertsletts Treaties. In British India section 113 of the Indian Evidence Act of 1872 created a presumption in favour of such transfer which on the issue of a numberification was to be held by companyrts to be valid. In 1872 Scidia was given the pergannah of Broach. In 1803 Pudokottah State was ceded the Districts of Kullanelly in Tanjore. In 1806 Sambalpur was given to the Mahara a of Nagpur and in 1871 Scidia was given certain villages in Jhansi. See Aitchosons tre es Vol. 3 p. 331 , Vol. 4 p. 214 and 99 . All these were without intervention of Parliament. It will thus appear that there is numbersettled practice. The least that can be said is that cession in time of war in the United Kingdom can always be made by the Crown but in time of peace it can only be made by Parliamentary sanction whether obtained directly or under the Ponsonby rule. In British India parliamentary sanction was number necessary. In Damodar Gordhan v. Deoran Kanji 1 it was laid down that the general and abstract doctrine laid down by the High Court at Bombay that it is beyond the power of the British Crown without the companysent of the Imperial Parliament to make a cession of territory within the jurisdiction of any of the British Courts in India, in time of peace, to a foreign power, is erroneous. The question is one of domestic as well as International Law and we have been at pains to set down the practice of some companyntries and that obtaining in British India before dealing with this problem in the light of our Constitution and the facts obtaining here. It will appear from the other analysis that the United States of America and the French Constitutions have a clear guidance on the subject. In England, as numberwritten Constitution exists, difference is made between treaties of peace when the Crown acts without, obtaining the approval of Parliament and cession in peace time when such approval must be had. But even so a distinction is made in the case of British possessions abroad and the United Kingdom. Again a difference is made in cases involving minor 1 1876 1 Appeal cases, 332. changes where boundaries have to be ascertained and adjusted. In British India advantage was taken of Section 113 of the Evidence Act in cases of cessions to Native States, Prince or Ruler. That section is number obsolete and has been omitted in Burma and Ceylong but is still borne on our statute, although numberlonger required. We may number pass on to the Indian Constitution and the facts of this case to see how it views this matter. The Constitution did number include any clear direction about treaties such as is to be found in the United States of America and the French Constitutions. Article I of the Constitution defined the territory of India. It provides that India shall be a Union of States. In the Constitution as originally enacted First Schedule classified States as A, B, C and D. After the Seventh Amendment in 1956 it is number provided that the States and the territories thereof shall be as specified in the First Schedule. Clause 3 ,of the First Article was also amended by the Seventh Amendment but as the amendment is number material we may read here that clause as it is today. It reads The territory of India shall companyprise-- a the territories of the States b the Union territories specified in the First Schedule and c such other territories as may be acquired. Article 3 enables Parliament by law to alter the boundaries of the existing States and it includes the power b to increase the area, of any State c diminish the area of any State or to alter the name of any State. Then there are items Nos. 14 and 15 in the Seventh Schedule which provide as follows Entering into treaties and agreements with foreign companyntries and implementing of treaties, agreements and companyventions with foreign companyntries. War and peace. These entries enable laws to be enacted on these topics. They are to be read with Article 253 which occurs in Part XI Relations between the Union and the States Chapter 1 Legislative Relations and is headed Distribution of Legislative Powers, it provides. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory ,of India for implementing any treaty, agreement or companyvention with any other companyntry or companyntries or any decision made at any international companyference, association or other body. In point of fact it adds numberhing to the legislative entries 14 and 15 above quoted but companyfers exclusive power of law- making upon. Parliament. As the marginal numbere companyrectly represents the idea underlying the Article, it may be, read--Legislation for giving effect to International agreements-and the article only says that Parliament is the authority to make such laws. In addition to these provisions we must also take into account Article 73 1 which lays down the Executive power of the Union. It reads 73 1 Subject to the provisions of this Constitution, the executive power of the Union shall extend- a to the matters with respect to which Parliament has power to make laws and b to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement Provided that the executive power referred to in subclause a shall number, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. The question is if a law and or a companystitutional amendments is- necessary for implementing the Award. Before we deal with the facts of the case before us and the. arguments for and against executive act ion we may companysider here a few cases of this Court in which a problem of cession of Indian, Territory had previously arisen because both side seek to apply those cases to the facts here. It is companyvenient to view these cases in the order in which they were decided In Midnapore Zamindary Co. Ltd. v. Province of Bengal and others 1 , this question was number directly in issue. There were observations which are pertinent and must be borne in mind. It was observed that disputes as to boundaries between two independent States cannot be the subject of inquiry of municipal companyrts exercising jurisdiction in either State. The Federal Court relied upon the statement of the law by Oppenheim. International Law, 7th Edn., Vol. 1, p. 408 that state territory is an object of the Law of Nations, because the latter recognises the supreme authority of every State within its territory. The Federal Court quoted with approval the dictum of Farwell, J. in Foster v. Globe Venture Syndicate Ltd. 2 which reads 1 1949 P. R. 309. 2 L.R. 1900 1 Ch. 811. Sound Policy appears to, me to require that I should act in unison with the Government on such a point as that. Assuming that the Foreign Office have already satisfied themselves that the territory in question is within the dominion of Morocco, and have applied. to the Sultan of Morocco for redress in any given matter, it would surely be improver that 1, sitting here as a Judge of the High Court, should, in the face of that art of Her Majesty, hold as a matter of fact that the territory in question was number within the dominion of the Sultan of Morocco. I should be companytravening the act of Her Majesty acting as a Sovereign in a matter which is within the companynizance of Her Majestys Foreign Office. This statement of the law had the full approval of Viscount Finlay in Duff Development Co. v. Kalintan Government 1 where companysultation between Court and Government was advocated. This ,case does number help us to, solve the problem but it shows that Municipal Courts should be slow to interfere. A similar question like the present arose In re The Berubari Union and Exchange of Enclaves 2 on a reference by the President of India to this Court of certain questions companycerning the Berubari Union and the exchange of certain enclaves. As a result of the Radcliffe Award dated August 12, 1947 Berubari Union was included- in West Bengal and was treated as such. Certain boundary disputes, having arisen from interpretation of the Radcliffe award, the two Dominions referred the dispute to another Tribunal presided, over by Lord Justice Algot Bagge for decision. The BaggeTribunal gave its award on 26 January, 1950. Subsequently the question of Berubari Union was raised by Pakisthan in 1952 and on September 10 1958 the Prime Ministers of India and Pakistan entered into an agreement between East and West Bengal, which involved transfer of Berubari Union to Pakistan,. Simultaneously an agreement to exchange certain enclaves took place also. This is known as the Indo- Pakistan Agreement. Section 290 of the Government of India Act 1935 had provided, that His Majesty companyld by Order in Council increase or diminish the area of any Province or alter the boundary of any Province and the Extra-Provincial Jurisdiction Act of 1947 gave the necessary power in that behalf. The question arose whether the inauguration of the Constitution had led to any change. Three questions were referred to this Court by the President. They were Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union ? 1 1924 A.C. 797. 2 1960 3 S.C.R. 250. If, so, is a law of Parliament relatable to article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary, in addition to or in the alternative ? Is a law of Parliament relatable to article 3 of, the Constitution sufficient for implementation of the agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with article 368 of the Constitution necessary for the purpose, in addition or in the alternative. This Court gave the following answers Q? 1. Yes. Q? 2. a A law of Parliament relatable to Art. 3 it the Constitution would be incompetent A law of Parliament relatable to Art. 368 of the Constitution is companypetent and necessary, A law of Parliament relatable to both Art. 368 and Art. 3 would be necessary only if Parliament chooses first to pass a law amending Art. 3 as indicated above in that case Parliament may have to pass a law on those finds under Art. 369 and then follow it up with a law relatable to the amended Art. 3 to implement the Q. 3. Same as answers a , b , and c to Question 2. The companytention on behalf of the Union was that the Indo- Pakistan tan Agreement regarding Berubari Union only ascertained and delineated the exact boundary and did number involve alteration of territorial limits of India or alienation or cession of Indian territory. The exchange of enclaves was also described as a part of the general and broader agreement about Berubari Union and incidental to it. According to the Union Government the Indo Pakistan Agreement companyld be implemented by executive action alone without Parliamentary legislation whether with or without a companystitutional amendment. Reliance was placed on the obser- vations of Mukherjee, C.J. in, Rai Sahib Ram Jawaya Kapur v. The State of Punjab 1 where dealing with the limits within which the Executive Government can function, the learned Chief Justice said that the executive function companyprised both the determination of the policy as well as the carrying it into execution. This evidently includes the initiation of legisla- 1 1955 1 S.C.R. 225. 7 tion, maintenance of order, the promotion of social and economic welfare, the, direction of foreign Policy, in fact the carrying on or supervision of the general administration of the State. The Court posed the question whether the Indo-Pakistan Agreement had purported to settle, a boundary dispute or to divide the disputed territory half and half. The Court found the latter as there was numberattempt in the said Agreement to read or interpret the Awards previously given in that dispute. This Court rejected the companytention that it was a pure ascertainment of boundary between the two Countries. On the other hand the Indo-Pakistan Agreement ceded territory of India to Pakistan. This companyclusion was reached in respect of the Berubari Union as well as the en- claves. Since the Berubari Union was treated after the two Awards as part of India its cession would have altered the companytent of Entry 13 of the First Schedule to the Constitution and an amendment was held necessary. Once the argument that this was a case of marking a boundary on the surface of the earth was rejected this Court companysidered the steps necessary to make cession of Indian territory. As a result the 9th Amendment to the Constitution was enacted from December 28, 1960. The matter came again in another form before this Court in Ramkishore Sen and Others v. Union of India 1 which is known popularly as the Berubari II case. It was a writ petition filed in the Calcutta High Court and the appeal was brought to this Court. It wag filed by six residents of the District of Jalpaiguri. The companyplaint was that the village of Chilhati among others was being transferred to Pakistan as a result of the Agreement between India and Pakistan and the action was illegal. The main point argued in the petition was that Chilhati was number companyered either by the Indo-Pakistan Agreement or the 9th Amendment. According to those petitioners it was number companypetent to transfer Chilhati without first amending the Constitution. The case before the High Court and in this Court was that a part of Chilhati village situated in Debiganj Police Station was a part of Chilhati in Jalpaiguri District. This Court observed There is numberdoubt that if a small portion of land admeasuring about 512 acres which is being transferred to Pakistan is a part of Chilahati situated within the jurisdiction of Debiganj Thana, there can be numbervalid objection to the proposed transfer. It is companymon ground that the village of Chilahati in the Debiganj Thana has been allotted to Pakistan and it appears that through inadvertence, a part of it was number delivered to Pakistan on the occasion of the partition which followed 1 1966 1 S.C.R. 430. the Radcliffe Award. It is number surprising that in dividing territories under the Radcliffe Award, such a mistake should have occurred but it is plain that what the res- pondents number propose to do is to transfer to Pakistan the area in question which really belongs to her. It was then companytended that even though that part ought to have been originally transferred to Pakistan under the Radcliffe Award, it having become part of India companyld number be ceded without the procedure laid down in Berubari I case. As this portion was being administered as part of West Bengal under Entry 13 in the First Schedule it was part of the territory which immediately before the companymencement of the Constitution was West Bengal. This Court observed It is true that since this part of Chilahati was number transferred to Pakistan at the proper time, it has been regarded as part of West Bengal and administered as such. But the question is does this fact satisfy the requirement of Entry 13 on which the argument is, based? In other words, what is the meaning of the clause the territories which were being administered as if they formed part of that Province what do the words as if indicate in the companytext ? Explaining the phrase as if they formed part of that Province this Court looked into the history of this Province. Clauses a and b of section 290-A of the Government of India Act 1935 may be reproduced Administration of certain Acceding States as a Chief Commissioners Province or as part of a Governors or Chief Commissioners Province Where full exclusive authority, jurisdiction and powers for and in relation to governance of any Indian, State or any group of such States are for the time being exercisable by the Dominion Government, the Governor-General may by order direct-- 2 that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioners Province or 3 that the State or the group of States shall be administered in all respects as if the State or the group of States formed part of a Governors or a Chief Commissioners Province specified in the Order. The Court companycluded thus In view of this companystitutional background, the words as if have a special significance. They refer to territories which originally did number belong to West 7Sup.CI/69-19 7 Sup .CI/69-19 Bengal but which became a part of West Bengal by reason of merger agreements. Therefore, it would be impossible to hold that a portion of Chilahati is a territory which was administered as if it was a part of West Bengal. Chilahati may have been administered as a part of West Bengal but the said administration cannot attract the provisions of Entry 13 in the First Schedule, because it was number administered as if it was a part of West Bengal within the meaning of that Entry. The physical fact of administering the said area was number referable to any merger at all it was referable to the accidental circumstance that the said area had number been transferred to Pakistan as it should have been. In other words, the clause as if is number intended to take in cases of territories which are administered with the full knowledge that they do number belong to West Bengal and had to be transferred in due companyrse to Pakistan. The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that as administered by West Bengal under the circumstance to which we have just referred. That is why we think Mr. Mukerjee is number right in companytending that by reason of the fact that about 512 acres of Chilahati were number transferred to Pakistan and companytinued to be admin istered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 Schedule 1. The West Bengal Government ,knew all the time that it was an area which belonged to Pakistan and which had to be transferred to it. That is, in fact, what the respondents are seeking to do and so, it would be idle to companytend that by virtue of the accidental fact that this area was administered by West Bengal, it has companystitutionally and validly become a part of West Bengal itself. That being so,there can be number,question about the companystitutional validity of the proposed transfer of this area to Pakistan. What the respondents are seeking to do is to give to Pakistan what belongs under the Radcliffe Award. These two cases did number really decide the point we are called upon to decide. The first Berubari Case dealt with transfer of territory which was de facto and de jure Indian territory and there-fore as the extent of Indian territories as defined in Art. I read with the 1st Schedule was reduced a companystitutional amendment was held necessary. The second case companycerned territory which ,was de facto under the administration by India but being de jure that of Pakistan, transfer of that territory which was number a part of Indian territory was held number to require a companystitutional amendment. Neither case dealt with a boundary dispute although in the first case the case from Australia was distinguished on the ground that that case companycerned the demarcation of boundaries pure and simple. However it was number said that for adjustment of boundaries a companystitutional amendment was number required. Neither case adverted to the practice of Nations particularly Britain, number attempted to interpret the relation of Articles 1,253 and 73 of the Constitution read with Items 14 and 15 of List I of Schedule The only thing that can be said is that this Court leaned in favour of a companystitutional amendment in all cases where admitted territory of India was being ceded but number where the cession was of territory of a foreign power but de facto in possession of India. On which side must a border dispute fall is the question for our decision. The petitioners claim that this will fall in the dictum of the first Berubari Case. The Union Government claims that it is analogous to the case of Chilahati in the second Berubari Case. The question is one of authority. Who in the State can be said to possess plenum dominion depends upon the Constitution and the nature of the adjustment. As to the necessity of it, the Courts must assume it as a matter of law. It is scarcely to be thought that the validity of the action can ever depend upon the judgment of a companyrt. Therefore all argument that the action of Government to go to arbitration was number proper must cease. Unlike the United States of America where the Constitution is defined in ex- press terms, we-in our Country can only go by inferences from our Constitution, the circumstances and the precedents. The precedents of this Court are clear only on one point, namely, that numbercession of Indian territory can take place without a companystitutional amendment. Must a boundary dispute and its settlement by an arbitral tribunal be put on the same footing. An agreement to refer the dispute regarding boundary involves the ascertainment and representation on the surface of the earth a boundary line dividing two neighbouring companyntries and the very fact of referring such a dispute implies that the executive may do such acts as are necessary for permanently fixing the boundary. A settlement of a boundary dispute cannot, therefore, be held to be a cession of territory. It companytemplates a line of demarcation on the surface of the earth. It only seeks to reproduce a line, a statutable boundary, and it is so fixed. The case is one in which each companytending state ex facie is uncertain of its own rights and therefore companysents to the appointment of an I arbitral machinery. Such a case is plainly distinguishable from a case of cession of territory known to be home territory. The argument that if power to settle boundaries be companyceded to the Executive, it might cede some vital part of India is to take an extreme view of things. The same may even be said of Parliament itself but it is hardly to be imagined 28 4 that such gross abuse of power is ever likely. Ordinarily an adjustment of a boundary which international Law regards as valid between two Nations, should be recognised by the Courts and the implementation thereof can always be with the Executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be had. This has been the custom of Nations whose companystitutions are number sufficiently elaborate on this subject. The argument on behalf of the petitioners is intended to prove that the areas of Kanjarkot, Dharabanni and Chhadbet and two inlets on either side of Nagar Parkar are Indian territory. From this it follows, that a companystitutional amendment as was laid down in the first Berubari case is a companydition precedent for the implementation of the Award. The argument, therefore, follows closely the reasoning in that case. It is companytended that Article 1 read with the First Schedule to the Constitution made Kutch into a part C State and under the second paragraph of Part C itself its, territory companyprised all territories which by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before the companymencement of the Constitution, being administered as if they were a Chief Commissioners Province of the same name. We- have shown that the meaning of the phrase as if they were a Chief Commissioners Province of the same name must be understood as was, laid down in the second Berubari case. Learned companynsel attempted to challenge that decision but we companysider ourselves bound by that decision. The petitioners must establish that this area was a part of Kutch. The petitioners, therefore, trace the history of Kutch. Kutch is described in the White Paper on Indian States as follows 1 18. Another important State which was taken over under Central administration was Kutch. This State has an area of 17,249 Sq. miles of which 8,461 miles is inhabited by a population of a little over half a million. The remaining area is occupied by what is known as the Rann of Kutch which is companyered by water during most part of the year. In view of the geographical situation of the State and the potentialities of this area, the development of which will require a companysiderable amount of money as well as technical assistance, which neither the State by itself number the State of Saurashtra with which it was possible to integrate the State companyld provide, it was decided that the best solution for this State would be to treat it as a Centrally administered unit. An Agreement Appendix XXIX was accordingly signed by the Ruler on 4th May, 1948 and the administration was taken over by a Chief Commissioner on behalf of the Dominion Government on 1st June, 1949.- This only gives the area but number the boundaries. The Kutch Merger agreement is like any other merger agreement and was executed by the Maharao of Kutch on May 4, 1948. It gives numberclue to the boundaries and also leaves the matters at large. Immediately after Kutch was taken over by Chief Commissioner on June 1, 1949. On July, 29, 1949 the States Merger Chief Commissioners Provinces Order, 1949 was passed. It provided inter alia 2 1 c the parts of States specified in the Second Schedule to this Order shall be administered in all respects as if they were a Chief Commissioners Province, and shall be known as the Chief Commissioners Province of Kutch. The parts of States companyprising Kutch were given as follows The State of Kutch, excluding the area known as Kutchigar h situate in Okhamandal. The part of the United State of Saurashtra which is companyprised in the Adhoi Mahal of Morvi, companysisting of the seven villages Adhoi, Dharna, Gamdan, Halara, Lakhpat, Rampur and Vasatava. Here again the boundaries are number mentioned. All that we know of Kutch from these documents is that it had an area of 17,249 Sq. miles of which 8,788 Sq. miles were inhabited. Obviously this is most inconclusive from our point of view since the White Paper is companypletely silent about boundaries. The later history of Kutch is also number helpful. On November 1, 1956 Kutch became a part of Bombay State. The States Re- organisation Act referred to the existing State of Kutch which did number advance matters any nearer certainly than before. On May 1, 1960 the Bombay Reorganisation Act made the area known as Kutch a part of the State of Gujarat State. Therefore numbere of these documents is of any help in determining boundaries or that the disputed areas were definitely a part of India. There is also numberevidence of administration in Dhara Banni and Chhadbet. No revenue administration, establishment of Courts, offices, schools etc. is proved. The Chairman found some evidence of administrative companytrol of Sind which companytradicted the Indian case. The evidence of leases was held to be companytradicted by other evidence. The 1957 elections show that a polling station was located at Chhadbet but the voters were the personnel of the Watch and Ward force. Indeed the census of India 1961 shows the same 171 persons who belonged to the Watch and Ward personnel. Kanjarkot had almost numberevidence in its favour and Mr. Madhu Limaye frankly admitted this fact., The other petitioners gave. numberevidence about it. 7Sup.Cl/69-20 No doubt, Pandit Jawaharlal Nehru on March 3, 1956 and Shri Lal Bahadur Shastri on May 11, 1965 asserted that the area belonged to India but that was only a statement and cannot be held to be of an evidentiary character. We were bound to make such a statement if we were at all to lay claim to it. After all the other side was making a similar claim and even a short skirmish also took place. This cannot be treated as definite evidence. In support of the case the petitioners took us still further back into history. The definition of boundaries of Sind in 1935 by the Surveyor General was in general terms. It did number show whether Kanjarkot, Dhara Banni and Chhadbet were excluded from Sind altogether. Me Index Map prepared at the time was tot annexed to the order in Council. This index map was relied upon by Ambassador Ales Bebler who gave opinion for us but was number accepted by the Chairman and Ambassador Nasrollah Entezam. This was probably because the Mosaic Map which is map A on which India rested the claim did number show a companytinuous boundary along the entire length. The statistical abstracts of India and Pakistan which were sought to supplement the Map before us only give areas and number boundaries and are, therefore, inconclusive. The claim of Kutch State in 1914 when it attempted to enlarge the Rann of Kutch at the companyt of Sind was number successful. A companypromise was the foundation of a friendly understanding and number the settlement of a boundary. The Macdonald line that was then determined represents the uncontested portion of the boundary. It was then attempted to get a companyfirmation of the Kutch-Sind boundary but numberboundary was settled. It appears that the Rann itself was treated as excluded from Kutch. Indeed the Government of Bombay companytinued to so regard it. The fight before the Tribunal, therefore,, became a cartographic tussle. Over 350 maps were exhibited by the parties and many of these maps companyflicted. Maps have been used in such cases but the source of information on which the map is based is always doubtful and maps are companytradictory. One cannot go by one set only. In this view of the matter our reliance on Maps B32, 34,35, 36 and 37 became ineffective. The disputed area was about 3,500 Sq. miles. Out of this about 350 sq. miles were included in Pakistan. We are number sitting in appeal over the Award of the Tribunal. Our interpretation of the Maps and facts of history is really number called for. All that we can determine is whether there is companycrete and solid evidence to establish that these areas belonged to India. If we companyld reach this companyclusion there may be something to be said applying the first Berubari case. Otherwise we must hold that there was a disputed boundary and this was the occasion for marking out the final boundary on the surface of the earth. in our opinion this is what was done. We cannot go entirely by what of the India pressed before the Tribunal. That is only one art matter, The companyditions existing prior to the Award were a that there was a break of hostilities b that then there was a cease-fire because the dispute was to be decided by arbitration, c that both sides put forward their claims, d that there was numberclear evidence of demarcation of a boundary acceptable to the parties number or in the past, e that the claim Map of India did number show a companytinuous boundary along all the border, f that the area is in different state at different seasons in the year, for part of. the year it is water and for the remaining part it is land. While it is the former it may be regarded as a part of the Rann and while it is land it may well be regarded as part of Sind. Viewed from this angle the companytention in this case companyes to this Does India cede undisputed Indian territory or is it the settlement of a disputed boundary? With regard to Kanjarkot which is to the south of Rahim ka Bazar numbercase was made out at all except assertions that it is Indian territory in which at least Mr. Madhu Limaye who argued the case very fully and with companysiderable ability did number join. With regard to Mora Banni and Chhadbet it is clear that Map A the claim map of India does number show the border from Manjeet where the boundary determined by the Tribunal leaves the mainland to a point just west of the, point where the boundary determined by the Tribunal again joins the mainland. To the south of this missing boundary lie Dhara Banni and Chhadbet. It is, therefore, clear that at least in this part, India was number certain of the boundary. No doubt some other maps show a companytinuous boundary even there but other negative it. In other words the, exact location, of the boundary was an open question. Dhara Banni and Chadbett are companytiguous with the mainland in some seasons although they are, inundated at times and become indistinguishable from the Rann. In these circumstances the location of the boundary at the southern fringe of Dhara- Banni and Chhadbet was numbermore than fixing a trim boundary, according to the Tribunal. It was well within the terms of reference and the decision being a true marking put of a disputed boundary does number amount to cession of these three areas so as to attract a companystitutional amendment. As regards the two inlets, their area is said to be less than 25 sq. miles. They are extremely narrow at their,southern extremities and really represent indentations in land. At the narrow points roads run 1 across them and they are Pakistans roads. Treating the inlets as inland waters, the Tribunal determined the boundary in such away as to give them to Pakistan. The reasons given by the Tribunal-have been reproduced above by us. We cannot say that this will mean a cession of Indian territory. There, was a genuine dispute,regarding the title to these inlets whatever India may have thought about them. The decision of the Tribunal is a decision on a disputed boundary and does number attract a companystitutional amendment. The only evidence was this area which is other wise un- inhabited was in parts occupied by an Indian security force. The existence of these Watch and Ward officers or the establishment of a polling booth for them at election time cannot companynote administration such as would make them territory of India. The Diplomatic Notes began soon after the establishment of the two Dominions and the occupation may have meant de facto companytrol but there was numberproof of de jure occupation or any other administration. Sovereignty over an area is always a matter of inference. As Judge Huber puts it in the Island of Palmas case manifestations of territorial sovereignty assume, it is true, different forms, according to time and space. Although companytinuous in principle,. sovereignty cannot be exercised in fact at every moment on every point of a. territory. The intermittence and discontinuity companypatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved Award dated April 4, 1928 2 INT.ARB. AWARDS 867 Garrisoning of an area a point numbered in the International Court of Justice in 1953 in, the Minquiers and Ecrehos case, C.J. Reports page 78 may be one kind of evidence. But this applied to both sides. Unless they displayed real existence of sovereignty over the area, numbere companyld be said to be in occupation de jure. Hance the propounding of so so many maps and documents. If we were sitting in appeal on the award, of the Tribunal we might have formed a different opinion of of the material but we are number. The fact remains that India undertook to be bound by the award pledging, die national honour and we must implement the award. The only question is as to the steps to be taken. On the whole, therefore, we are of opinion that this reference began in a boundary dispute after open hostilities and was decided as such. In which case it cannot be said that there will be a cession of Indian territory and the rule earlier laid down by us applies if numberconstitutional amendment is required the. power of the Executive which extends to matters with respect to which Parliament has power to make laws, can be exercised to companyrect boundaries number that they have been settled, The decision to implement the Award by exchange of letters, treating the Award as an operative treaty after the boundary has been marked in this area, is within the companypetence of the Executive wing of Government and numberconstitutional amendment is necessary. The petitions and the appeals fail and will be dismissed but there will be numberorder about companyts. Shah, J. I agree with the learned Chief Justice. The companytroversy raised in this group of writ petitions and appeals lies within a narrow companypass whether the award, dated February 19, 1968 of the Indo-Pakistan Western Boundary. Case Tribunal may be implemented by a companystitutional amendment and number otherwise. The claimants-I use that expression to refer companypendiously to the appellants and the petitioners-urge that the award may be implemented only by an amendment modifying the relevant provisions in Schedule 1 to the Constitution, because in giving effect to the award of the Tribunal, cession of Indian territory is involved, and. the executive is incompetent to cede Indian territory without the authority of a companystitutional amend- ment. The Union of India companytends that the Award merely fixes or demarcates the boundary between the State of Gujarat in India and West Pakistan regarding which there were disputes and much friction, and by the Award numbercession of Indian territory is companytemplated, and for implementing it amendment of the Constitution is number needed. The Great Rann of Kutch lies between the mainland of Sind which is number part of Pakistan and the mainland of Kutcha district of the State of Gujarat. It has a peculiar surface it is marshy land for about four months in the year large parts of the Rann are companyered with the waters of the Arabian Sea rushing through the Khori Creek. It is however number fit for navigation. During the rest of the year it is muddy or dry land, but number dry enough for farming. From the very nature of the terrain, the boundaries of the Rann are shifting, its extent depending upon the violence of the natural elements in different years. The numberthern boundary of the Rann has, on account of its inhospitable terrain and numberadic population on the fringe with numberprospect of cultivation, remained ill-defined. Between 1816 and 1819 the Indian State of Kutch passed under the domination of the East India Company and the integrity of its territory was guaranteed by the East India Company by the treaty of 1819. In 1843 Sir Charles Napier annexed the territory of Sind, and made it into a Governors Province, which was later turned into a Division of the Province of Bombay. Kutch companytinued to be ruled by the Maharao, the British authorities having posted a Political Agent at the capital of the, State. In 1855 the Department of Survey of India companymenced a revenue, and topographical survey of the Province of Sind. The survey, called the Macdonald Survey, was companypleted in 1870, and survey maps were prepared and published in 1876. It is number clear whether the southern boundaries of the Sind villages shown in the maps were village boundaries, or a boundary companyterminous between the territory of Sind and Kutch State. The next survey was undertaken under Major Pullan in 1879 and was companypleted in 1886. Under this project survey of the State of Kutch was undertaken. The numberthern boundary of Kutch State roughly tallied with the Macdonald alignment of the Sind boundary. The relevant maps were published in 1882. Another survey of a part of the boundary on the Sind side was undertaken in 1904-05 by C. F. Erskine. The alignment of the boundary with a few companyrections tallied with the Macdoland alignment. This survey was intended to be a checking survey and related to the western region extending up to a point near Rahim ki Bazar. About the year 1907-08 the Commissioner of Sind raised cer- tain disputes relating to encroachments on the territory under his administration by the Maharao of Kutch. The Government of India made an enquiry and a resolution, dated February 24, 1914, was.issued by the Government of the Province of Bombay, of which Sind was then a Division. By the resolution the, disputed area was divided by a new alignment which was partly identical with the claim made by the Kutch State along the Sir Creek from its mouth to its extremity and then slightly departed from it. In the other regions the alignment of the Macdonald Survey was adhered to. To the resolution was annexed a map on which the rectified boundary was shown. A Secretary in the Foreign Department of the Government of India recorded that the Government of India observe with satisfaction that the dis- pute between the Sind authorities and the Kutch Durbar has been settled by a companypromise agreeable to both parties and are pleased to accord their sanction to the rectification of the, boundary line proposed in paras 9 and 10. To the letter of the Secretary to the Government of Bombay, Political Department, companysent to the rectification of the boundary was evidenced by a letter of the Maharao under his own signature. Pursuant to this resolution in 1924, pillars were fixed up to a point known as the Badin-Ja-jato-Rann tri-junction. In 1935 the new Province of Sind was companystituted. By the government Constitution of Sind Order, 1936, it simply provided, therein that-In the Act and this Order, Sind means the territory known at the date of this Order, as the Division of Sind, and the boundaries of that Division shall be the boundaries of Sind. It was originally intended to set out by a Schedule to the Order the boundary of Sind, and an Index Map was prepared by the Surveyor General for that purpose. By a companymunication from the Secretary of State for India in Council, it was recommended that a Schedule to the Order defining the boundary was number necessary and the Governor-General accepted that suggestion. The fourth survey-called the Onmaston Survey-was companymenced in 1938-39 it was intended to be a survey of the Eastern part of the Tharparkar District. This survey adopted the alignment of the Macdonald Survey in that region showing a companyterminous boundary between Sind and the States of Western India number within the State of Gujarat . With the enactment of the Indian Independence Act, 1947 10 1 1 Geo. VI c. 30 the paramountcy of the British power lapsed, and the two independent Dominions of India and Pakistan were carved out with effect from the appointed day. By s. 2 2 of the Act the territories of Pakistan were to be- b the territories which, at the date of the passing of this Act, are included in the Province of Sind and c On May 4, 1948, the State of Kutch merged with the Dominion of India and by Article 1 of the Agreement of Merger the Maharao ceded to the Dominion of India full and exclusive authority over the governance of the State. On June 1, 1949, the administration was taken over by the Government of India , and the territory was companystituted into a Chief Commissioners Province under s. 2 1 c of the States Merger Chief Commissioners Province Order, 1949. Under the Constitution the territory became a Part C State. Its extent was determined by the 2nd paragraph in Part C to, Schedule 1 of the Constitution as territories which by virtue of the order made under s. 290A of the Government of India Act, 1935, were immediately before the companymencement of the Constitution being administered, as if they were a Chief Commissioners Province of the same name. By s. 8 1 e of the States Reorganization. Act, 1956, the, territory of the Part C State of Kutch was incorporated with the State of Bombay, and by s. 3 a of the Bombay reorganization Act, 1960, it was included in the newly formed State of Gujarat. From July 1948 and onwards diplomatic numberes were exchanged between the Governments of India and Pakistan companycerning the boundary between the two companyntries in the Gujarat-West Pakistan Sector. The dispute led to great tension between India and Pakistan resulting in armed companyflict in April 1965. By an agreement dated June 30, 1965, the Government of India and the Government of Pakistan companycluded an agreement For setting up machinery for determination and demarcation of the border in the area of Gujarat-West Pakistan. The agreement in so far as it is relevant provides Art. 1-There shall be an immediate cease- fire with effect from 0030 hours GMT on 1. July 1965. Art. 2-. Art. 3- i In view of the fact that India claims that there is numberterritorial dispute as there is a well- established boundary running roughly along the numberthern edge of the Rann of Kutch as shown in the pre-partition maps, which needs to be demarcated on the ground. Pakistan claims that the border between India and Pakistan in the Rann of Kutch runs roughly along the 24th parallel as is clear from several pre-partition and post-partition documents and therefore the dispute involves some 3,500 square miles- of territory. c In the event of numberagreement between the Ministers of the two Governments on the determination of the border being reached within two months of the cease-fire, the two Governments shall, as companytemplated in the Joint Communique of 24 October 1959, have recourse to the Tribunal referred to in iii below for determination of the border in the light of their respective claims and evidence produced before it and the decision of the Tribunal shall be final and binding on both the parties. For this purpose there shall be companystituted, within four months of the cease- fire, a Tribunal companysisting of three persons, numbere of whom would be a national of either India or Pakistan. One member shall be numberinated by each Government and the third mem- ber, who will be the Chairman, shall be jointly selected by the two Governments. In the event of the two Governments failing to agree on the selection of the Chairman within three months of the cease-fire, they shall request the Secretary-General of the United Nations to numberinate the Chairman. The decision of the Tribunal referred to in, iii above shall be binding on both Governments, and shall number be questioned on any ground whatsoever. Both Governments undertake to implement the findings of the Tribunal in full as quickly as possible and shall refer to the Tribunal for decision any difficulties which may arise between them in the implementation of these findings. For that purpose the Tribunal shall remain in being until its findings have been implemented in full.,, The Ministerial Conference companytemplated to be held did number take place, and the two Governments decided to have recourse to the Tribunal to be companystituted under article 3 iii of the agreement. A Tribunal of three members, one appointed by each State and the Chairman numberinated by the Secretary- General of the United Nations Organization was set up. The agreement between the two States was reached purely as an executive act, and numberlegislative sanction was obtained by the Government of the Union of India to its implementation. The respective claims before the Tribunal by India and Pakistan are set out in paragraph 3 1 of the agreement and at pp. 7, 8 9 of the Introductory Part of the award which apparently had the companycurrence of all the members of the Tribunal. On behalf of the Government of India it was submitted that the boundary lay as detailed in Map A annexed to the award which is a mosaic of Indian Maps B-44, B-37, B-19 and B-79. It was companymon ground between the two Governments that the Gujarat-West Pakistan boundary stretches from the mouth of the Sir Creek in the west to a point on the Jodhpur boundary in the each. The Parties agree that the Western Terminus of the boundary to be determined by the Tribunal is the point at which the blue dotted line meets the purple line as depicted in Indian Map B-44 and the Pakistan Resolution Map, and that the Eastern Terminus of the same boundary is a point situated 825.8 metres below pillar 920 on the Jodhpur boundary as depicted in Pakistan Map 137. This agreement leaves out of the matters submitted to the Tribunal the portion of the boundary along the blue dotted line, as depicted in Indian Map B-44 and the Pakistan Resolution Map, as well as the boundary in the Sir Creek. The blue dotted line is agreed by both Parties to form the boundary between India and Pakistan In view of the aforesaid agreement, the question companycerning the Sir creek part of the boundary is left out of companysideration. It was also companymon ground that before.Independence the boundaries between the Province of Sind, on the one hand, and one or more of the Indian States which lay on the opposite side of the Great Rann, on the other hand, were companyterminous. Therefore, in the disputed region, apart from, India and Pakistan there is numberother State that does or companyld have sovereignty. There is between India and Pakistan a companyterminous boundary today, whether or number there was at all times a companyterminous boundary between Sind and the Indian States. The companytention raised by Pakistan was a that during and also before the British period, Sind extended to the south into the Great Rann up to its middle and at all relevant times exercised effective and exclusive companytrol over the numberthern half of the, Great Rann b that the Rann is A marine feature used for want of a standard term to companyer the, different aspects of the Rann . It is a separating entity tying between the States abutting upon it. It is governed by the prin- ciples of the median line and of equitable distribution, the bets in the Rann being governed by the principle of the nearness of shores c that the whole width of the Rann without being a companydominium formed a broad belt of boundary between territories on opposite sides that the question of reducing this wide boundary to a widthless line, though raised, has never been decided that such widthless line would run through the middle of the Rann and that the Tribunal should determine the said tine. Pakistan accordingly claimed that the border of Sind extended up to the boundary shown by the thick green dotted line in Map B. It was agreed by both the Governments that should the Tri- bunal find that the evidence establishes that the disputed boundary between India and Pakistan lies along a line different from. the claim lines of either party, the Tribunal is free to declare such a line to be the boundary. The award to be made by the Tribunal was, it was agreed, to operate as a self-executing arrangement it was number only to declare the boundary, but to provide for fixing its location on site. It was agreed between the Agents of India and Pakistan that- The basis of demarcation shall be the alignment of the boundary as delineated by the Tribunal on maps to be annexed to the Award. Each Government should be supplied with two sets of these maps duly authenticated by the Tribunal. 2. The Representatives of the two Governments shall meet at Delhi number later than two weeks after the Award is rendered to discuss and decide upon the following matters The strength of the team. It is number possible to give the exact number of personnel companyposing the team at this stage as the strength of the team will depend upon the alignment of the boundary and the quantum of work involved which can be ascertained only after the Award is rendered . The design and specifications of the boundary pillars and traverse pillars, the number and spacing of pillars. The design and specifications of the boundary pillars will depend upon the alignment of the boundary and the nature of the terrain. The pillars may be of cement companycrete, stone or masonry according to the requirements Detailed operational instructions for the guidance of the field staff. Such operational instructions have to be necessarily finalised only after the nature of the alignment is known . Any other matter which requires companysideration for effective demarcation work. If the Representatives of the two Governments do number agree upon any of the above matters either Government shall immediately report to the Tribunal the matters in difference for the decision of the Tribunal. 5. The first task of the demarcation team shall be to ascertain if any companytrol points exist and are available, These companytrol points should be supplemented, wherever necessary, in order to determine the pillar positions on the ground in accordance with the alignment of the boundary. If companytrol points do number exist or are number available, a fresh series of triangulation or traverse will be carried out and companytrol points determined and the pillar position-, located with the help of these points. Simultaneously with the location of the pillar positions, pillars shall be emplaced at each position. The award was published by the Tribunal on February 19, 1968. By the decision of the Chairman of the Tribunal Judge Gunnar Lagergren with whom Ambassador Nasrollah Entezam agreed and Ambassador Ales Babler disagreed in part, the boundary was aligned from point W T to E T in Map C. It is unnecessary to set out the detailed description of the boundary. claim of the Government of India to the Rann was accepted. The claim of the Government of Pakistan to approximately 3,500 square miles out of the Great Rann was rejected except as to 350 square miles, of which more than 325 square miles are found beyond the Rann or on which the Maharao had number exercised sovereign authority . The Tribunal unanimously accepted the claim that the Great Rann of Kutch was part of the territory of the State of Kutch and is number Indian territory. But the majority of the Tribunal accepted the claim of Pakistan, substantially to the following three sectors Marginal area south of Rahim ki Bazar, marked by B, C, D in Map C, this may be called the Kanjarkot Sector The area marked in the Map C by letters E, F, G, H, K which may be called Dhara, Banni and Chhad Bet Sector Two inlets which practically encircle Nagar Parkar which have apparently characteristic features of the Rann but are still declared to be within the border of Pakistan by drawing straight lines from points L to M and N to 0 in Map C. The reasons for declaring the first two sectors as Pakistan territory are set out at p. 152 of the printed award by the Chairman Judge Gunnar Lagergren as follows Reviewing and appraising the companybined strength of the evidence relied upon by each side as proof or indication of the extent of its respective sovereignty in the region, and companyparing the relative weight of such evidence, I companyclude as follows. In respect of those sectors of the Rann in relation to which numberspecific evidence in the way of display of Sind authority, or merely trivial or isolated evidence of such a character, supports Pakistans claim, I pronounce in favour of India. These sectors companyprise about ninety per cent of the disputed territory. However, in respect of sectors where a companytinuous and for the region intensive Sind activity, meeting with numbereffective opposition from the Kutch side, is established, 1. am of the opinion that Pakistan has made out a better and superior title. This refers to a marginal area south of Rahim ki Bazar, including Pirol Valo Kun, as well as to Dhara Banni and Chhad Bet, which on most maps appear as an extension of the mainland of Sind. About Item 3 Judge Gunnar Lagergren was of the view that to prevent friction and companyflict the inlets ,should number be declared Kutch territory. The effect of an international treaty on the rights of citizens of the States companycerned in the agreement is stated in Oppenheims International Law, 8th Edn., at p. 40 thus Such treaties as affect private rights and, generally, as require for their enforcement by English companyrts a modification of companymon law or of a statute must receive parliamentary assent through an enabling Act of Parliament. To that extent binding treaties which are part of International Law do number form part of the law of the land unless expressly made so by the legislature. and at p. 924 it is stated The binding force of a treaty companycerns in principle the companytracting States only, and number their subjects. As International Law is prim- arily a law between States only and exclusively, treaties can numbermally have effect upon States only. This rule can, as has been pointed out by the Permanent Court of International Justice, be altered by the express or implied terms of the treaty, in which case its provisions become self- executory. Otherwise, if treaties companytain provisions with regard to rights and duties of the subjects of the companytracting States, their companyrts, officials, and the like, these States must take steps as are necessary according to their Municipal Law, to make these provisions binding upon their subjects, companyrts, officials, and the like. In Wade and Phillips Constitutional Law, 7th Edn., It is stated at p. 274 At first sight the treaty-making power appears to companyflict with the companystitutional principle that the Queen by prerogative cannot alter the law of the land, but the provisions of a treaty duly ratified do number by virtue of the treaty alone have the force of municipal law. The assent of Parliament must be obtained and the necessary legislation passed before a companyrt of law can enforce the treaty, should it companyflict with the existing law. On p. 275 it is stated that treaties which, for their execution and application in the United Kingdom, require some addition to, or alteration of, the existing law are treaties which involve legislation. The statement made by Sir Robert Phillimore, Judge of the Admiralty Court in The Parlement Belge 1 - though the ultimate decision was revised by the Court of Appeal in another point vide 1880 5 P. D. 197 in dealing with the effect of a Convention regulating Communications,by Post signed and ratified in 1876 which purported to companyfer upon Belgian mail streamers. immunity of foreign warships is appropriate If the Crown had power without the authority of parliament by this treaty to order that the Parlement Belge should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against her as a wrong- doer on account of the companylision, cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished. This is a use of the treaty-making prerogative of the Crown which I believe to be without precedent, and in principle companytrary to the laws of the Constitution. In Walker v. Baird 2 the Judicial Committee, affirming the decision of the Supreme Court of Newfoundland, observed that the plea of act of State raised in an action for trespass against the Captain of a British fishery vessel who was authorised by the Commissioners of the Admiralty to superintend the execution of an agreement between the British Crown and the Republic of France, which provided that numbernew lobster factory shall be established on a certain part of the companyst of Newfoundland companyld number be upheld. The Judicial Committee in Attorney-General for Canada v. Attorney-General for Ontario and Others 3 made some observations in the companytext of a rule applicable within the British Empire, which are pertinent It will be essential to keep in mind the distinction between 1 the formation, and 2 the performance, of the obligations companystituted by a treaty, using that word as companyprising any agreement between two or more sovereign States. Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other companyntries, 1 1879 4P.D.129. 2 1892 A.C.491. 3 1937 A.C. 326, 347. the, stipulations of a treaty duly ratified do number within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the Government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes Parliament, number doubt, has a companystitutional companytrol over the executive but it cannot be disputed that the creation of the obligation.-. undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created, while they bind the State as against the other companytracting parties, Parliament may refuse to perform them and so leave the State in default. These observations are valid in the companytext of our companystitutional set up. By Art. 73, subject to the provisions of the Constitution, the executive power of the Union extends to the matters with respect to which the Parliament has power to make laws. Our Constitution makes number provision making legislation a companydition of the entry into an international treaty in times either of war or peace. The executive power of the Union is vested in the, President and is exercisable in accordance with the Constitution. The executive is qua the State companypetent to represent the State in all matters international and may by agreement, companyvention or treaties incur obligations which in international law are binding upon the State. But the- obligations arising under the agreement or treaties are number by their own force binding upon Indian nationals. The power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I of the Seventh Schedule. But making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizens or others which are justiciable are number affected, numberlegislative measure is needed to give effect to the agreement or treaty. The argument raised at the Bar that power to make treaty or to implement a treaty, agreement or companyvention with a foreign State can only be exercised under authority of law, proceeds upon a misreading of Art. 253. Article 253 occurs in Ch. 1 of Part XI of the Constitution which deals with legislative relations Distinction of Legislative Powers. By Art. 245 the territorial operation of legislative power of the Parliament and the State Legislatures is delimited, and Art. 246 distributes legislative power subject-wise between the Parliament and the State Legislatures. Articles 247, 249, 250, 252 and 253 enact some of the exceptions to the rule companytained in Art. 246. Me effect of Art. 253 is that if a treaty, agreement or companyvention with a foreign State deals with a subject within the companypetence of the State legislature, the Parliament alone has numberwithstanding Art. 246 3 , the power to make laws to implement the treaty, agreement or companyvention or any decision made at any international companyference, association or other body. In terms, the Article deals with legislative power thereby power is companyferred upon the parliament which it may number otherwise possess. But it does number seek- to circumscribe the extent of the power companyferred by Art. 73. If, in companysequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation where there is numbersuch restriction, infringement of the right or modification of the laws, the executive is companypetent to exercise the power. It may be recalled that cl. 3 iv of the Agreement included a companyenant that the decision of the Tribunal shall be binding on ,both the Governments. The power of the executive to enter into that companyenant cannot also be challenged, and was number challenged. It was companyceded that if the companytention based on Art 253 was number accepted, the award of the Tribunal by majority of two Judge Gunnar Lagergren with whom Ambassador Nasrollah Entezam agreed was binding upon the Government of India. It was accepted that as an international agreement between the two States represented by their executive Governments it became binding between the two States as expressly undertaken. No argument was urged that there exist any grounds which may justify the Union of India from declining to implement the agreement. The award of the Tribunal has, it was companyceded, to be implemented as an international obligation. Counsel who represented the claimants, and claimants who argued their cases, before us adopted an eminently fair attitude. it was number urged that the award was number binding upon the Union of India their plea urged with moderation was that insofar as the award affected the territorial limits of India, it required a companystitutional amendment. It was number suggested that apart from the claim to exercise rights to move freely throughout the territory of India under Art. 19 1 d , and to reside and settle in any part of the territory of India under Art. 19 1 e any other right of any individual citizens was likely to be infringed by the implementation of the award. The nature of the terrain of the disputed territory precludes any other claim being made, There are numberlocal residents, numberprivate property and numberagriculture. For four months in the year it is mostly under water, for the rest of the year it is marshy land. But it was claimed that every individual citizen of India is entitled to exercise the privileges under cls. d and e of Art. 19 1 in respect of territory between the boundary shown in Map A annexed to the award, and the boundary delineated by Map C which represents, in the view of the Tribunal, the border between the two States, is Indian territory and deprivation of the rights of the citizens under Art. 19 1 d e can only be achieved if the cession of what is number part of the territory of India be ceded under the sanction of a companystitutional amendment Mr. Limaye petitioner in Writ Petition No. 402 of 1968 claimed that he made an attempt to enter the territory which under the award falls within the Pakistan Border, and was prevented by the security police from entering that area. The only question to be determined therefore is whether in implementing the award, the. executive Government is ceding territory of India to Pakistan. I have set out the terms of the agreement and the disputes raised by the two States in some detail. A review of the terms of the agreement, the unanimous introductory part of the award and the terms of the agreement relating to the implementation of the award and of the final award, make it abundantly clear that the dispute related to the boundary between the two States it was referred as a boundary dispute, the respective claims urged were about the location of the boundary line, and the operative part of the award declared the alignment of the boundary, which has under the terms of the agreement relating to the procedure for demarcation to be filed by pillars on the alignment. Settlement of dispute which relates to the alignment of an undefined boundary between two States involves numbercession of territory by either State. In the advice rendered to the President in a reference made to this Court under Art. 143 in In Re The Berubari Uninion and Exchange of Enclaves 1 this Court was called upon to determine the true nature of the agreement between the Prime Ministers of India and Pakistan-each Prime Minister acting on behalf of his Government September 10, 1958, for a division of the Berubari Union in the State of West Bengal and exchange of certain enclaves- and whether the agreement may be implemented otherwise than by a companystitutional amendment. This Court held that the agreement between the two Prime Ministers did number seek to interpret the Radcliffe Award or to determine the boundary between the two States. It Was agreed by the two Prime Ministers that a part of the Berubari Union which was allotted to India under that Award and was in occupation of India was to be ceded to Pakistan, and enclaves within Pakistan but in occupation of India de lure were to be exchanged for similar enclaves of Pakistan within Indian territory. This Court advised the President that the appellant companyld be implemented under the authority of a companystitutional amendment only. The Parliament then enacted the Constitution. Ninth Amendment Act, 1960, assuming power to implement the agreement and the 1 1960 3 S.C.R. 250. two other agreements dated October 23, 1959 and January 11, 1960. Another matter arising out of those agreements between the two Prime Ministers was brought before this Court by an appeal from an order passed by the High Court of Calcutta in a writ petition Ram Kishore Sen Ors. v. Union of India and Ors. 1 . It was proposed pursuant to the Constitution Ninth Amendment Act, 1960, to transfer, among other territory, a part of the village of Chilahati in the occupation of the State of West Bengal in India. A petition filed in the High Court of Calcutta challenging the validity of the proposed transfer to Pakistan on the ground that village Chilahati which was part of the Indian territory companyld number be transferred by the Government of India. The High Court of Calcutta rejected the petition. In appeal to this Court it was urged, inter alia, that the disputed part of the village Chilahati though allotted to Pakistan was number delivered to Pakistan and had become part of the State of West Bengal, because it was being administered as if it formed part of the territory of West Bengal within the meaning of Entry 13 PartA Sch. I as amended by the Constitution Amendment of the First Fourth Schedules Order-, 1950. The Court held that the proposed transfer of a part of the village of Chilahati, which was allotted to Pakistan under the Radcliffe Award but was number delivered, and companytinued to remain administered as a part of the State of West Bengal,was number companystitutionally invalid. In In Re The Berubari Union and Exchange of Enclaves 2 there was numberquestion of-demarcation of a disputed boundary it was a case of pure cession of Indian territory. Ram Kishore Sen Ors case 1 which dealt, among others, with the cession of 500 acres of Chilahati village related to transfer of territory which though temporarily under. Indian administration had never become Indian territory. The principle of the First Berubari case has numberapplication here and the principle of the Second Berubari case is against the companytention raised by the claimants. But the claimants urge that by the alignment of the boundary under the award, territory which is Indian is number declared foreign territory, and it cannot be implemented without the authority of an amendment modifying the boundary of the State of Gujarat in which is number included the Rann of Kutch. Now the alignment of the boundary under the award deviates from the alignment claimed by the Government of India before the Tribunal in three in ran, respects which have already been set out. The Tribunal was of the view, on a companysideration of the maps produced, that there did number exist at any time relevant to the proceedings a historically recognized and well-established 1 1966 1 S.C.R. 43O. 2 1960 3 S.C.R. 250. 30 3 boundary in the, three sectors. About the Kanjarkot Sector the Chairman observed The evidence shows that Kutch did number make any appearance in this area until 1946, and then only abortive attempts were made by the sons of the lessee, Node Sadi Rau, to go there in order to companylect Panchari. They reported that they did number even dare to stay overnight in the place. While numberspecific evidence has been submitted which proves any activities undertaken by Sind subjects in Pirol Valo Kun, the reports of the Kutch lessees establish that Sind inhabitants engaged in grazing there. and further observed at p. 151 In a sector bounded to the south by the southern limit of Pirol Valo Kun, number only is there a total absence of effective Kutch activity, but there is a companysistent exercise of sovereign rights and duties by Sind autho- rities, and activities of residents of Sind, in one instance, taking the form of a permanent settlement at Shakur. The territory in this sector is companytiguous to and in fact is an extension of the mainland of Sind, and apart from the survey maps there is numberevidence that it is part of the Great Rann of Kutch. No serious argument was advanced to establish that on Kanjarkot, the Kutch State at any time exercised sovereign authority. About the Dhara Banni and Chhad Bet Sector Judge Gunnar Lagergren observed at p. 141 on the evidence on record it may be taken as positively established that, in this century, prior to independence, outside Dhara Banni and Chhad Bet which will be treated presently , the police and criminal jurisdiction of Sind authorities over disputed territory extended, in the sector between the eastern loop and Dhara Banni, to Ding, Vighokot and Biar Bet. There is, however, numberevidence which affirmatively proves in a companyclusive fashion that the jurisdiction of Sind police and Sind companyrts encompassed areas west of the eastern loop, or east of Chhad Bet. Conversely, numberproof is offered that Kutch either assumed or exercised such jurisdiction over any part of the disputed territory leaving aside Dhara Banni and Chhad Bet . He again observed at p. 144 I deem it established that, for well over one hundred years, the sole benefits which companyld be derived from those areas are enjoyed by inhabitants of Sind. It is number suggested that the grazing as such was subject to British taxation. Such limited evidence as there is on record seems, however, to justify the assumption that the task of maintaining law and order was dis- charged by the Sind authorities-, it is number even suggested that the authorities of Kutch at any time viewed such a task as forming part of their duties Whatever other Government functions were required with respect to these outlying grazing grounds, on which herds of cattle were from time to time shepherded, were apparently undertaken by Sind. Thus, the births, deaths and epidemics occurring there were recorded by the taluka office in Diplo. It is number shown that Kutch at any time established a thana on Chhad Bet. He finally observed at p. 151 The remaining sector within the area described above in which authority, in this instance exclusively for the protection of activities of private, individuals, is shown to have been displayed by Sind authorities in a manner which is number sporadic but companysistent and effective, is Dhara Banni and Chhad Bet. As stated earlier, the activities undertaken by Kutch in these areas cannot be characterised as companytinuous and effective exercise of jurisdiction. By companytrast 9 the presence of Sind in Dhara Banni and Chhad Bet partakes of characteristics which, having regard to the topography of the territory and the desolate character of the adjacent inhabited region, companye as close to effective peaceful occupation and display of Government authority as may reasonably be expected in the circumstances. Both the inhabitants of Sind who openly used the grazing grounds for over one hundred years and the Sind authorities must have acted on the basis that Dhara Banni and Chhad Bet were Sind territory. The claimants urged that the territory in this Sector belonged to the Kutch State and that claim was supported by survey maps, companyrespondence between the officials of Kutch State and the British Administration, assertions made in the Annual Administration Reports for 75 years before 1947, Statistical Abstracts relating to British India, Bombay Administration Reports Gazetteers, Memorandum on Indian States and a number of official publications, and by the Resolution of the Government of Bombay, dated February 24, 1914. It would be a fruitless exercise to enter upon this historical material. The survey and other maps do number Jay down a uniform or companysistent alignment. Macdonald Survey appears to align the boundary of Sind towards the numberth even of Rahim ki Bazar which is admittedly on the mainland of Sind, and was never claimed as part of the Rann. This lends support to the view that the Macdonald Survey report was rough, and was intended to be a topographical map. The maps prepared at the later surveys follow, with some variations and rectifications, the Macdonald Survey alignment, but those survey maps also do number indicate an international boundary. About Pullans Survey it may be observed that Pullan himself stated that he had carefully abstained from laying down or suggesting a boundary vide Resolution of the Government of Bombay July 3 and August 7, 1885 . The attitude adopted by the Government of Bombay which is set out in the resolution was that they did number desire that any question of boundaries in the Rann between the Province of Sind and Kutch should beraised. Erskines Survey also is open to the criticism that as anofficer of the Sind Government he made statements in his letter, dated November 23, 1905, disowning any intention to determine the boundary of the Rann, of Kutch. The maps prepared in the Erskine Survey were number accepted as evidencing a boundary. Even the Maharao of Kutch did number agree to accept the alignment. By the resolution of 1914, it does appear that an attempt was made to resolve the dispute about certain disputed pockets, between the British authorities governing Sind and the Maharao of Kutch. But a review of the companyrespondence of 1905, followed by erection of Pillars up to the western tri- junction, and establishment of a customs line in 1934- appear to suggest that the boundary east of the trijunction was in a state of uncertainty. Conflicting claims were made from time to time by the British authorities and the Maharao of Kutch and about the exercise of sovereign rights over the areas number in dispute the evidence is very scrappy and discrepant. An. attempt to determine how far general statements of claim and refusal thereof were applicable to the sector number in dispute would serve numberuseful purpose. Different positions were adopted by the officers of the Government of India according as the exigencies of a particular situation demanded. The statements or assertions do number evidence an existing state of affairs they were only made to support or resist. claims then made, or to serve some immediate purpose. The claimants before us were unable to pinpoint any definite and reliable piece of evidence which established the exercise of sovereign authority by the Maharao of Kutch over the second sector. It is true that the-territory of the entire State of Kutch merged with the Dominion of India. That territory was treated as Indian, 3 06 territory and was at first governed as a separate administrative unit. But unless it be established that the disputed sectors were part of the Kutch State, numberfirm companyclusion can be drawn from the agreement of merger. Undoubtedly the Government of India claimed at all material times the territory in Sectors 1 and 2 . In respect of the Kanjarkot Sector there is numberevidence of exercise of sovereign authority by the Maharao of Kutch at any point of time. The sector is apparently companytiguous to and an extension of the mainland of Sind. It is number shown that it has the characteristics of the Rann terrain. The Dhara Banni and Chhad Bet Sector is also apparently an extension of the mainland of Sind. There is numberreliable evidence about the enjoyment of the benefits of the land in the Sector by the inhabitants of Kutch. Evidence of the exercise ,of suzerainty by the Maharao of Kutch over that Sector is also sadly lacking. The sector has more pronounced features of the Rann terrain, but it appears also to be companytiguous to the mainland of Sind. Even granting that the evidence about the exercise of sovereign authority by the British authorities governing Sind since 1843 over the Rann of Kutch is inconclusive, the claim by Indian citizens to exercise fundamental rights in respect of the territory in that Sector may be entertained only if it be established that the territory is found to be originally governed by the Maharao of Kutch. On that part of the claim, companycrete evidence is wanting. It was companytended that the total area of Kutch according to the White Paper on Indian States was 17,249 square miles out of which the area of the Kutch mainland was 8,461 square miles and the balance was 8,788 square miles which companysists of the Great and Little Ranns of Kutch. In the Kutch Administration Report for 1910-11 and thereafter the area of Kutch was stated to be 7616 square miles and it was stated that the Rann also belongs to the.Maharao. In 1931 a companyrection was introduced that the area of the State was 8249.5 square miles exclusive of the Rann of Kutch which belongs to the Kutch State territory. The Bombay Administration Reports from 1871-72 to 1923-24 give varying figures as the area of Kutch and make a general statement that the Rann of Kutch belongs to the State. The statement in the Imperial Gazetteers of 1881, 1885, 1908, 1909 companytain State ments about the areas which are so discrepant that numberreliance can be placed upon them. Similarly the recitals about the extent of the Rann, in the Gazetteers of the- Bombay Presidency are also imprecise. The only safe companyclusion that can be drawn from these documents is that the Rann was part of Kutch State but do number lend any assistance in determining the numberthern boundary of the Rann. 30 7 It is stated in the affidavit of Mr. Dholakia that the area of the Kutch District was 16567.3 square miles inclusive of 9000 square miles of Rann territory. But evidently the area of the Rann is a rough estimate. In the Census of 1941 the area of Kutch was shown as 8,461 square miles and in 1951 Census as 16,724 square miles inclusive of Rann. There is numberevidence that the figures are based upon any precise survey in the companytext of an accepted boundary. The Census of 1961 shows that there were 171 residents in the Chhad Bet. But these companysist exclusively of the Border Guards posted in that area. It is companyceded that there is numberlocal population in Chhad Bet and Dhara Banni. The inclusion of Chhad Bet in the area within a polling station for the 1967 General Elections also supports merely an assertion that it was claimed to be Indian territory. It is number evidence of the fact that it was territory over which the Maharao of Kutch exercised sovereign rights and which by merger of the territory became Indian territory. The evidence on which reliance was mainly placed in support of the claim was the companyflicting alignments in the survey and other maps, the claims made by the Maharao of Kutch aid the Government of India which were number accepted. Exercise of de facto authority over the territory in the sectors after the disputes took companycrete form is evidence of an assertion merely and number evidence of pre-existing sovereign rights. The merger of the State of Kutch with the Dominion of India does number result in vesting of sovereign authority over the territory of the two sectors, unless the suzerainty of the State of Kutch is established. The boundary between the two States was indefinite and by the award of the Tribunal the true boundary of India and Pakistan is determined the award does number purport to, number does it operate as giving rise to, an obligation to cede Indian territory. The two inlets which practically encircle Nagar Parkar are declared to be within Pakistan Border on the ground that it would be inequitable to recognise those inlets as foreign territory. It was said by the Chairman of the Tribunal that the existence of such foreign territory may be companyducive to friction and companyflict. Regarding the two inlets the position is different since the ultimate decision of the Tribunal is founded on companysiderations of expediency and number on strict determination of rights. We have numberpower to sit in appeal over the decision of the Tribunal. The ground on which the award is made against the claim made by the Government of India does number strengthen the rights of the claimants to relief. Unless there is evidence to show that the inlets were territory over which the Maharao of Kutch had sovereign rights, acceptance of the award is number required to be implemented by a companystitutional amendment. The total area of the inlets, we are informed by companynsel on both sides, does number exceed 25 square miles. In the turbulent times which preceded the occupation of Sind by the East India Company in 1843 or even thereafter it is unlikely that any authority was exercised by the Maharao of Kutch over these inlets. It appears from some of the maps that at the extremities the inlets are very narrow and roads cross these inlets from Nagar Parkar, which is of the shape of a penninsula into the mainland of Sind. It is difficult to accept that at any time effective sovereign authority companyld have been exercised over these inlets by the Maharao of Kutch. There is numberevidence of exercise of any such right, before or after the occupation of Sind. There being numberevidence of exercise of sovereign authority by the Maharao of Kutch, this Court cannot treat it as part of Indian territory. On the view the claim made by the claimants that in imple- menting the award of the International Tribunal an attempt is made to cede any part of the territory which formed part of the State of Kutch before 1948, or was in de facto occupation and in respect of which sovereign authority was exercised by the Maharao of Kutch. The award does numbermore than define on the surface of the earth a boundary which has at all material times remained indefinite, because of the nature of the terrain, the shifting nature of the border of what was called Rann, the highly discrepant and companyflicting claims made from time to time by the British authorities as well as the Kutch State authorities before the State merged with the Dominion of India in 1948, and the persistent refusal of the British authorities, though there were several occasions to demarcate the boundary between Sind and the Rann of Kutch. The appeal and the writs are dismissed. There will be numberorder as to companyts in the appeals and the writ petitions. K.P.S. L7Sup.CI/69-2,500-27-2-70-GIPF.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal, No, 2425 of 1968. Appeal by special leave from the judgment and order dated August 30, 1968 of the Madhya Pradesh High Court in Civil Revision No. 764 of 1967. K. Daphtary, and I. N. Shroff for the appellant. Rameshwar Nath and Mahinder Narain for the respondents The Judgment of the Court was delivered by Shah, J. The respondents entered into a companytract with Hindustan Steel Ltd. for raising, stacking, carting and loading into wagons limestone at Nandini Mines. Dispute which arose between the parties was referred to arbitration, pursuant to cl. 61 of the agreement. The arbitrators differed, and the dispute was referred to an umpire who made and published his award on April 19, 1967. The umpire filed the award in the Court of the District Judge, Rajnandgaon in the State of Madhya Pradesh and gave numberice of the filing of the award to the parties to the dispute. On July 14, 1967 the appellant filed an application for setting aside the ward under ss. 30 and 33 of the Indian Arbitration Act, 1940. One of the companytentions raised by the appellants was that the award was unstamped and on that account invalid and illegal and liable to be set aside. The respondents then applied to the District Court that the award be impounded and validated by levy of stamp duty and penalty. By order dated September 29, 1967, the District Judge directed that the award be impounded. He then called upon the respondents to pay the appropriate stamp duty on the award and penalty and directed that an authenticated companyy of the instrument be sent to the Collector, Durg, together with a certificate in writing stating the receipt of the amount of duty and penalty., Against that order the appellant moved the High Court of Madhya Pradesh in exercise of its revisional jurisdiction. The High Court rejected the petition and the appellant appeals to this Court with special leave. It is urged by Counsel for the appellant that an instrument which is number stamped as. required by the Indian Stamp Act, may, on payment of stampduty and penalty, be admitted in evidence, but cannot be acted upon, for, the instrument has numberexistence in the eye of law. Therefore, companynsel urged, in proceeding to entertain the application for filing the award, the District Judge, Rajnandgaon, acted without jurisdiction. The relevant provisions of the Stamp Act may be summarised. Section 3 of the Act provides Subject to the provisions of this Act the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore, respectively, that is to say-- a every instrument mentioned in that Schedule which, number having been previously executed by any person, is executed in India on or after the first day of July, 1899 Instrument is defined in s. 2 14 as including every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. An instrument is said to be duly stamped within the meaning of the Stamp Act when the instrument bears an adhesive or impressed stamp of number less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India s. 2 11 . Item 12 of Sch. 2 prescribes the stamp duty payable in respect of an award. Section 33 1 provides, insofar as it is relevant Every person having by law or companysent of whom any instrument, chargeable with duty, is produced or companyes in the performance of his functions, shall, if it appears to him that such instrument is number duly stamped, impound the same. Section 35 of the Stamp Act provides, insofar as it is relevant No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or companysent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped Provided that Section 36 provides Where an instrument has been admitted in evi- dence, such admission shall number, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has number been duly stamped. Section 38 deals with the impounding of the instruments provides When the person impounding an instrument under section 33 has authority to receive evi- dence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or he shall send to the Collector an authenticated companyy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof By S. 39 the Collector is authorised to adjudge proper penalty and to refund any portion of the penalty which has been paid in respect of the instrument, sent to him. Section 40 prescribes the procedure to be followed by the Collector in respect of an instrument impounded by him or sent to him under s. 38. If the Collector is of the opinion that the instrument is chargeable with duty and is number duly stamped, he shall require the payment of proper duty or the amount required to make up the same together with a penalty of five rupees or, if he thinks fit, an amount number exceeding ten times the amount of the proper duty or of the deficient portion thereof. Section 42 provides When the duty and penalty if any , leviable in respect of any instrument have been paid under section 35, section 40 or the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty stating the amount of each have been levied in respect thereof Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct Provided that-- The award, which is an instrument within the meaning of the Stamp Act was required to be stamped. Being unstamped, the award companyld number be received in evidence by the Court, number companyld it be acted upon. But the Court was companypetent to impound it and to send it to the Collector with a certificate in writing Stating the amount of duty and penalty levied thereon. On the Instrument so received the Collector may adjudge whether it is duly stamped and he may require penalty to be paid thereon, if in his view it has number been duly stamped. If the duty and. penalty are paid, the Collector will certify by endorsement on the instrument that the proper duty and penalty have been paid. An instrument which is number duly stamped cannot be received in evidence by any person who has authority to receive evi- dence, and it cannot be acted upon by that person or by any public officer. Section 35 provides that the admissibility of an instrument once admitted in evidence shall number, except as provided in s. 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has number been duly stamped. Relying upon the difference in the phraseology between ss. 35 and 36 it was urged that an instrument which is number duly stamped may be admitted in evidence on payment of duty and penalty, but it cannot be acted upon because s. 35 operates as a bar to the admission in evidence of the instrument number duly stamped as well as to its being acted upon, and the Legislature has by S. 36 in the companyditions set out therein removed the bar only against admission in evidence of the instrument. The argument ignores the true import of S. 36. By that section an instrument once admitted in evidence shall number be called in question at any stage of the same suit or proceeding on the ground that it has number been duly stamped. Section 36 does number prohibit a challenge against an instrument that it shall number be acted upon because it is number duly stamped, but on that account there is numberbar against an instrument number duly stamped being acted upon after payment of the stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed by the terms of s. 42 2 which enact, in terms unmistakable, that every instrument endorsed by the Collector under S. 42 1 shall be admissible in evidence and may be acted upon as if it had been duly stamped. The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments it is number enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are companyceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will number be defeated on the ground of the initial defect in the instrument. Viewed in that light the Scheme is clear s. 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon section 40 provides the procedure for instruments being impounded, sub-s. 1 of S. 42 provides for certifying that an instrument is duly stamped, and sub-s. 2 of s. 42 enacts the companysequences resulting from such certification. Our attention was invited to the statement of law by M.C. Desai J., in Mst. Bittan Bibi and Another v. Kuntu Lal and Another 1 that I.L.R.1952 2 All. 984. A companyrt is prohibited from admitting an instrument in evidence and a Court and a public officer both are prohibited from acting upon it. Thus a Court is prohibited from both admitting it in evidence and acting upon it. It follows that the acting upon is number included in the admission and that a document can be admitted in evidence but number be acted upon. Of companyrse it cannot be acted upon without its being admitted, but it can be admitted and yet be number acted upon. It every document, upon admission, became automatically liable to be acted upon, the provision in S. 35 that an instrument chargeable with duty but number duly stamped, shall number be acted upon by the Court, would be rendered redundant by the provision that it shall number be admitted in evidence for any purpose. To act upon an instrument is to give effect to it or to enforce it. In our judgment, the learned Judge attributed to S. 36 a meaning which the Legislature did number intend. Attention of the learned Judge was apparently number invited to S. 42 2 of the Act which expressly renders an instrument, when certified by endorsement that proper duty and penalty have been levied in respect thereof, capable of being acted upon as if it had been duly stamped.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 462 of 1966. Appeal by special leave from the order dated March 25, 1964 of the Bombay High Court in Letters Patent Appeal No. 28 of 1964. V. Gupte, P. P. Khambatta, D. P. Mehta, Bhuvnesh Kumari and O. C. Mathur, for the appellant. C. Chagla and I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Ramaswami, J.-The question of law involved in this appeal is whether the primary liability is imposed on the appellant under the Bombay Municipal Corporation Act, 1888 Act No. 3 of 1888 to pay property taxes to the respondent i.e., the Municipal Corporation of Greater Bombay in respect of land- owned by the appellant and let on a monthly basis to a third party who has companystructed a building thereon. The appellant is a banking companypany incorporated in the United Kingdom and has established places of business in India. The appellant is the sole trustee of the estate of the late Mr. F. E. Dinshaw and in that capacity is the owner of a plot of land at Manchubhai Road, Malad, Greater Bombay in the State of Maharashtra, bearing No. P-Ward No. 6418, Street No. 299B. The said plot of land had been leased by the former trustee of the estate to one Mr. R.-R. Pande Thereinafter referred to as the lessee since a number of years at a monthly rent of Rs. 12-50. The lessee had companystructed at his own companyt a tiled house on the said plot of land. The Malad area merged into Greater Bombay on 1st February, 1957. Upto the date of the merger the Malad District Municipality was. assessing and levying taxes on the land and the structure separately and recovering the same from the landlord and the tenant. After the merger, the Bombay Municipal Corporation issued a numberice to the appellant under section 167 of the Act informing him that the assessment book had been amended by inserting, the name of the appellant and that the rateable value of the house had been fixed at Rs. 430/-. Being aggrieved by this order the appellant preferred an appeal to the Chief Judge Small Causes Court, Bombay under section 217 of the Act. The appeal was dismissed by the Chief Judge, Small, Causes Court by his order dated 3rd August, 1960. The appellant took the matter in further appeal to the Bombay High Court. The appeal was heard by Mr. Justice Patel and was dismissed on the 14th January, 1964. The learned Judge felt that he was bound by the decision of Chagla, C.J. and Shah, J. in , Ramji Keshavji v. Municipal Corporation for Greater Bombay 1 . The appellant thereafter preferred a Letters Patent Appeal No. 28 of 1964 which was summarily dismissed by Chief Justice H. K. Chainani and Mr. Justice Gokhale on 25th March, 1964. The present appeal is brought by special leave from the judgment of the Bombay High Court dated 25th March, 1964. Section 3 r of the Bombay Municipal Corporation Act, 1888 Act, No. 3 of 1888 hereinafter called the Act defines land as including land which is being built upon or is built upon or companyered with water Section 3 s defines buildings as including a house, out-house, stable, shed, hut and every other such structure, whether of masonry bricks, wood, mud, metal or any other material whatever. Section 3 gg defines Premises as including messages, buildings and lands of any tenure, whether open or enclosed, whether built on or number and whether public or private. Section 140 states The following taxes shall be levied on buildings and lands id Greater Bombay and shall be called property taxes, namely- a a water tax of so many per centum of their rateable value as the companyporation shall deem reasonable for, providing a water-supply for Greater Bombay. b a halalkhor-tax of so many-per centum, number exceeding five of their rateable value as will, in the opinion ofthe companyporation, suffice to provide for the companylection, removal and disposal, by municipal agency, of all excrementitious and polluted matter from privies, urinals and cesspools and for efficiently maintaining and repairing the municipal drains, companystructed or used for the receiptions or companyveyance of such matter, subject however, to the provisions that the minimum amount of such tax to be levied in respect of any one separate holding of land, or of any one. building or of any one portion of a building which is let as a separate holding, shall 1 56 Bom. L.R. 11 32. be six annas per month, and that the amount of such tax to be levied in respect of any hotel, club or other large premises may be specially fixed under section 172 c a general tax of number less than eight and number more than twenty-six per centum of their rateable value, together with number less than one-eighth and number more than three-quarters per centum of their rateable value added thereto, in order to provide for the expense necessary for fulfilling the duties of the companyporation arising under clause k of section 61 and Chapter XIV ca the education cess leviable under s. 195E d betterment charges leviable under Chapter XII-A. Section 146 provides 146. 1 Property taxes shall be leviable primarily from the actual occupier of the premises- upon which the said taxes are assessed, if such occupier holds the said premises immediately from the Government or from the companyporation or from a fazendar. Provided that the property taxes due in respect of any premises owned by or vested in the Government and occupied by a Government servant or any other person on behalf of the Government for residential purposes shall be leviable primarily from the Government and number the occupier thereof. Otherwise the said taxes shall be primarily leviable as follows, namely- a if the premises are let, from the lessor b if the premises are sub-let, from the superior lessor and c if the premises are unlet, from the person in whom the right to let the same vests. But if any land has been let for any term exceeding one year to a tenant, and such tenant On any person deriving title howsoever from such tenant has built upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be leviable primarily from the said tenant or such person, whether or number the premises be in the occupation of the said tenant or such person. 5 6 9 Section 147 states 147. 1 if any premises assessed to any property tax are let, and their rateable value exceeds the amount of rent payable in respect thereof to the person from whom, under the provisions of the last preceding section, the said tax is leviable, the said person shall be entitled to receive from his tenant the difference between the amount of the property tax levied from him, and the amount of which would be leviable from him it the said tax were calculated on the amount of rent payable to him. If the premises are sub-let and their rateable, value exceeds the amount of rent payable in respect thereof to the tenant by his sub-tenant, or the amount of rent payable in respect thereof to a sub-tenant by the person holding under him, the said tenant shall be entitled to receive from his sub- tenant or the said subtenant shall be entitled to receive from the person holding under him, as the case may be, the difference between any sum recovered under this section from such tenant or sub-tenant and the amount of property-tax which would be leviable in respect of the said premises if the rateable value thereof were equal to the difference between the amount of rent which such tenant or subtenant receives and the amount of rent which he pays. Any person entitled to receive any sum under this section shall have, for the recovery thereof, the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to receive the same. Section 154 1 enacts as, follows In order to fix the rateable value of any building or land assessable to a property-tax there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expected to let from year to year a sum equal to ten per centum of the said annual rent and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever., Section 155 enacts 155. 1 To enable him to deter-mine the rateable value of any building or land and the person primarily liable for the payment of any property tax leviable in respect thereof the Commissioner may require the owner or occupier of such building, or land, or of any portion thereof, to furnish him, within such reasonable period as the Commissioner prescribes in this behalf, with in formation or with a written return signed by such owner or occupier- a as to the name and place of abode of the owner or occupier, or of both the owner and occupier of such building or land and b as to the dimensions of such building or land, or of any portion thereof, and the rent, if any, obtained for such building, or land, or any portion thereof. Every owner or occupier on whom any such requisition is made shall be bound to companyply with the same and to give true information or to make a true return to the best of his knowledge or belief. The Commissioner may also for the purpose aforesaid make an inspection of any such building or land. Section 156 states The me Commissioner shall keep a book, to be called the assessment book in which shall be entered every official year- a a list of all buildings and lands in Greater Bombay distinguishing each either by name or number, as he shall think fit b the rateable value of each such building and land determined in accordance with the foregoing provisions of this Act- c the name of the person primarily liable for the payment of the property taxes, if any, leviable on each such building or land It was companytended by Mr. Khambatta that on a proper companys- truction of section 146 2 of the Act there should, have been separate assessments in respect of the building and the land in the present case. It was argued in the alternative that even if section 146 2 of the Act companytemplates a companypo site assessment of the building and the land, the primary liability should be imposed upon the owner of the building and number on the owner of, the land. It was said that the right to let the building vests in the lessee of the land and number in the appellant, and so, the primary liability was upon the lessee under section 146 2 of the Act. The argument was pressed that the appellant cannot be treated as a lessor under section 146 2 of the Act,, because the appellant has number let the land with the building thereon as one-unit to the lessee. The opposite viewpoint was presented on behalf of the respondent. It was, argued, in the first place, that section 146 2 of the Act companytemplates that there should be a companyposite assessment of the land and the building taken as one unit. In the case of such a companyposite assessment, the primary liability of the payment of tax was on the landlord under sub-section 2 a of section 146 except in the case, referred to in sub-section 3 where the primary liability was-upon the tenant and number upon the landlord. Admittedly, the present case did number fall under section 146 3 , and, therefore,. the primary liability was placed upon the appellant. In our opinion, the argument put forward on behalf of the respondent is well-founded and must be accepted as companyrect. In the first place, the language of section 146 2 indicates that the Legislature companytemplated that in a case where the land and the building are owned by different persons there should be a companyposite assessment of property tax. The reason is that in section 146 1 and 2 the word premises is used in companytrast to section 146 3 where the words land and building are separately mentioned. In section 154 1 of the Act again, the Legislature uses the expression building or land. Then section 155 provides for the right of the Commissioner to call information from the owner or the occupier in order to enable him to determine the rateable value of any building or land and the person primarily liable for the payment of any property, tax levied in respect thereof. Section 156 provides that the Commissioner shall maintain a book to be called the assessment book which book is to companytain among other things a list of all lands and buildings. Therefore, the scheme of section 146 is that, when the land is let and the tenant has built upon the land, there should be a companyposite assessment of tax upon the land and building taken together. We are further of opinion that in the case of such a companyposite unit the primary liability of assessment of tax is intended to be on the lessor of the land under section 146 2 a of the Act. It was objected by Mr. Khambatta that the appellant was only the lessor of the land and number of the building, and so, the appellant cannot be held to be the lessor within the meaning of section 146 2 a . We do number think that there is any merit in this objection. Section 146 3 of the Act furnishes the key to the interpretation of section 146 2 a , in the companytext of section 146 3 the lessor of the premises as mentioned in section 146 2 a must be companystrued as to mean the lessor of the land on which the building has been companystructed by the tenant. In this companynection, reference should be made to section 147 which provides for an apportionment of responsibility for property tax when the premises assessed are let or sub-let. The language of this sub-section sugge sts that the lessor of the land has the right of recovering from his tenant the amount of tax which he has paid in excess, of the tax which the property is liable to pay on the basis of the rent recovered by the lessor. It is also clear that the intention, of the Legislature in fixing the primary liability of property tax upon the owner of the land in a case number falling under s. 146 3 of the Act is to facilitate the companylection of, property tax. In the, case of a monthly tenant who puts up a temporary shack or asbestos shed on the land and who may at any time terminate the lease at a short numberice, it is number always possible for the Corporation to keep track of the lessee and to companylect the property tax from him. It is number unreasonable therefore that in a case of this description the Legislature should impose the primary liability for the payment of the property tax upon the lessor of the land and to give him the right of recoupment under section 147. A similar view with regard to the interpretation of section 146, of the Act was expressed by a Division Bench of the Bombay High Court companysisting of Chagla, C.J. and Shah, J. in Ramji Keshavjis 1 case. It was held by the learned judges in that case that where the owner of a land had leased it to a tenant for a period of one year and the tenant had put up a structure upon the land, the owner of the land was primarily liable to pay property tax together with the structure companystructed thereon. Counsel on behalf of the appellant challenged the companyrectness of this decision, but for the reasons already expressed we hold that the ratio of this decision is companyrect. We Shall, however , assume in favour of the appellant that the meaning of section 146 2 of the Act is obscure and that it is possible to interpret it as throwing the primary liability for payment of property tax upon the lessee who has companystructed a, building on the land. Even upon that assumption we think that the view of the law expressed by the Bombay High Court in this case ought number to be interfered with. The reason is that in a case where the meaning of an enactment is obscure, the Court may resort to companytemporary companystruction, that is the companystruction which the authorities have put upon it by their usage and companyduct for a long period of time. The principle applicable is optima legum interpres est companysuetudo 2 . In Ohlsons case 3 , in dealing with the interpretation of section 39 of the Pawnbrokers, Act, 1872, Stephen, J. said What weighs with me very greatly in companying to the present companyclusion is the practice of the Inland Revenue Commissioners for the past sixteen years. So long ago as 1874 this very point was decided by Sir Thomas Henry, for whose decisions we all have very great res- pect and the least that can be said with regard to the 1 56 Bom. L. R. 11 32. 3 1891 1 Q.B. 485, 489. 2 2 Co. Rep. 8 1. 5 7 3 case before him is that he pointedly called the attention of the companymissioners to the case-the learned magistrate having offered to state a case-an offer refused by the ,commissioner, who by their refusal must be taken to have acquiesced in the decision. Mat is a very strong companytemporaneous exposition of the meaning of the Act. The same principle was referred to by Lord Blackburn in Clyde Navigation Trustees v. Laird 1 . The question in dispute in that case was, whether the Clyde Navigation Consolidation Act, 1858 repealing eight prior Acts imposed navigation dues on timber floated up the Clyde in logs chained together. From 1858 to 1882 dues had been levied on this class of timber without resistance from the owners and some judges in the Court of Session suggested that this number- resistance might be companysidered in companystruing the statute. On this point Lord Blackburn said . I think that submission raises a strong prima facie ground on which they the owners companyld number resist, And I think a companyrt should be cautious, and number decide unnecessarily that there is numbersuch ground. If the Lord President Inglis means numbermore than this when he calls it companytemporanea exposito of the statutes which is almost irresistible, I agree with him.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1851 of 1968. Appeal from the judgment and decree dated June 19, 1963 of the Mysore High Court in Regular Appeal No. 231 of 1960. Shyamala Pappu and Vineet Kumar, for the appellant. R. Chaudhuri and K. Rajendra Chaudhuri, for respondent No. 1. V. Gupte, G, R. Ethirajulu Naidu, B. N. Sen, 0. P. Khaitan, A. N. Parikh, K. R. Chaudhuri and K. Rajendra Chaudhuri, for respondent to. 2 The Judgment of the Court was delivered by Bachawat J. The plaintiffs instituted a suit O.s. No. 515 of 1957 against the defendant alleging that by a companytract dated September 2, 1957 the defendant had agreed to assign to the plaintiffs his leasehold interest under a, mining lease in respect of 184 acres of land in Kudrekanave Kaval, Hosadurga Taluk, and claiming specific performance of the companytract. The Trial Court decreed the suit. The defendant filed an appeal against the decree. The High Court allowed the appeal and dismissed the suit. The present appeal has been filed by the plaintiffs after obtaining a certificate under Art. 133 of the Constitution. The main question arising in this appeal is whether there. was a companytract as alleged in the plaint. Under a companytract dated August 3, 1957, the defendant agreed to sell to the plaintiffs 40000 tons of float iron lying in the aforesaid mining area and gave them the right to win and remove the iron ore. We are number directly companycerned with this companytract in this appeal. On September 2, 1957 the defendant wrote the following letter to the plaintiffs- Further to our agreement dated 3rd August 1957 I hereby agree, to assign the sad lone area of 184 acres for iron and manngase ores, in your favour, subject to your paving me one lakh and eighty thousand rupees at your option to be decided by you within three months from this date. This document though worded as an agreement was in point of law an offer only. As a matter of fact,. on September 2, 1957 the plaintiffs had number agreed to purchase the mining lease. Until both parties were bound there companyld be numbercon- cluded companytract. The promise to keep the offer open for three months was number supported by any companysideration. The defendant was at liberty to revoke the offer at any tune before,its acceptance by the plaintiffs. on October 31, 1957, the defendant posted a letter to the Plaintiffs revoking the offer. This letter reached the plaintiffs on November 6, 1957. Before that date the,plaintiffs did number accept the offer either orally or by any letter sent to the defendant. On November 1, 1957, the plaintiffs filed suit O.S. No. 46 of 1957 against the defendant claiming a declaration that they were entitled to remain in possession of the mining area. The primary object of the suit was to enforce the plaintiffs right under the companytract dated August 3, 1957. The defendant filed his written statement in that suit on November 5, 1957. The High Court held that the plaintiffs accepted the offer of September 2, 1957 by their plaint in S. No. 46 of 1957 and that this acceptance was companymunicated to, the defendant before November6, 1957. We are unable to agree with this finding. The pleadings and issues raised the question whether a company- tract was made on September 2, 1957. If the plaintiffs desired to set up a new case that the companytract was companycluded in November 1957 they should have amended their pleadings accordingly. We need number say anything more on this point because we find that the plaintiffs have failed to establish the new case. In paragraphs 14 and 19 of the plaint in O.S. No. 46 of 1957 the plaintiffs alleged that by the letter dated September 2, 1957 the defendant agreed to assign the mining lease, that they ,were ready and willing to perform the companytract and that they reserved their right to file a suit for specific performance. The suggestion was that the companytract was companycluded on September 2, 1957 and that in breach of the companytract the defendant failed to apply for and obtain the necessary companysent of the central government to the assignment of the mining lease. Paragraph 17 and the prayer portion of the plaint suggested that by virtue of this companytract and the earlier companytract dated August 3, 1957 they were entitled to remain in possession of the mining area. The Suggestion was an atempt to add to the terms of the offer of September 2 1957. On acceptance of the offer according to its terms the plaintiffs companyld number get a possessory right before execution of a companyveyance of the mining lease. In point of law, the Plaint was number an acceptance of the offer, number was it intended to be an acceptance. It is number usual to accept a business offer by a plaint number is it usual to companymunicate an acceptance by serving a companyy of the plaint through the medium of the Court. We shall be straining the language of ss. 2 6 , 3 7 the Contract Act if we were to hold that the Plaint was an acceptance and that the service of a companyy of the plaint along with the writ of summons was a companymunication of the acceptance. Under the old chancery practice the mere filing of a bill in a suit to enforce specific performance was regarded as sufficient acceptance of the defendants offer unless the offer had been withdrawn before, the filing of the suit, see Boys v. Ayerst 1 , Agar v. Biden 2 , Fry on Specific Performance, 8th ed., art. 306, page 142, Pomeroy on Specific Performance, 3rd ed., art. 66, PP. 169-170. It may well be doubted whether this rule can apply under our present practice and procedure. A plaint in a suit for specific performance should allege a companycluded companytract, see the Code of Civil Procedure 1st Schedule Appendix A, Form No. 48. The offer as well as the acceptance should Pr the institution of the suit. However, the precise point does number arise in this case. O.S. No. 46 of 1957 was number a suit for specific performance of the companytract. Before the present suit for specific performance of the companytract was instituted, the offer had been withdrawn. Counsel for the appellant relying on Bloxams Case 3 sub- mitted that the companymunication of an acceptance was number necessary. The argument is misconceived. We have held that the plaint in O.S. No. 46 of 1957 was number an acceptance. There was numberother acceptance either oral or in writing. Mere mental assent of the plaintiffs to the defendants proposal is number sufficient. In the peculiar facts of Bloxams case a companytract to take shares was companycluded by an oral application for shares followed by allotment though numbernotice of allotment was given to the applicant., Ordinarily there is numbercontract unless there is an acceptance of the application for shares and the acceptance is companymunicated to the applicant, see In re Pellatts Case 4 . In the last case Lord Cairns, L.J. pointed out that Bloxams case turned on its own special facts. Bloxam was orally in- formed that if he did number receive an answer within a certain time he was to companysider his application granted. In the peculiar cir- 1 1822 .6 Madd. 316, 326 56 E.R. 11 1 2, 1115. 3 33 Beav. 529. 2 1833 2 L. J. Ch. 3. L.R. 2 Ch. App. 527. 5 85 cumstances, Bloxam companyld be regarded as having dispensed with the necessity of the companymunication of the acceptance. In the present case we are number companycerned with a companytract to take shares. The defendant made an offer to assign a mining lease. No acceptance was made or companymunicated to the defendant before hi withdrew the offer. There was numberconcluded, companytract and the appeal must fail on this ground. The High Court held that the assignment of the mining lease companyld number be lawfully made without the sanction of the State Government and the approval of the Central Government and that as the governments companycerned companyld number be companypelled to accord the necessary sanction and approval, the companytract to assign the mining lease companyld number be specifically performed and on this ground the High Court dismissed the suit. We do number think it necessary to express any opinion on this question. Me appeal is liable to be dismissed in view of our companyclusion. that there was numberconcluded companytract between the parties. In the result, the appeal is dismissed.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 271 of 1968. Appeal by special leave from the judgment and order dated July 3, 1968 of the Andhra Pradesh High Court in Criminal Appeal No. 883 of 1966. C. Setalvad, J. M. Mukhi and G. S. Rama Rao, for the appellant. Ram Reddy and A. V. V. Nair, for the respondent. The Judgment of the Court was delivered by Bachawat, J. M s. Golden Tobacco Co., Private Ltd. have their head office and main factory at Bombay where they manufacture cigarettes. The appellant is the occupier-cum- manager of the companypanys premises at Eluru in Andhra Pradesh where sun-cured companyntry tobacco purchased from the local producers is companylected, processed and stored and then transported to the companypanys factory at Bombay. The prosecution case is that the aforesaid premises are a factory. The appellant was prosecuted and tried for companytravention of 16 1 of the Factories Act 1948 and rules 3 and 5 3 of the Andhra Pradesh Factory Rules 1950 for operating the factory without obtaining a licence from the Chief Inspector of Factories and his previous permission approving the plans of the building. The appellants defence was that the premises did number companystitute a factory and it was number necessary for him to obtain the licence or permission. The 2nd Addl. Munsif Magistrate, Eluru, accepted the defence companytention and acquitted the appellant. According to the Magistrate the prosecution failed to establish that the premises were a factory ,or that any manufacturing process was carried on or that any worker was working therein. The Public Prosecutor filed an 87 7 appeal against the order. The Andhra Pradesh High Court allowed the appeal, companyvicted the appellant under s. 92 for companytravention of s. 6 1 and rules 3 and 5 3 and sentenced him to pay a fine of Rs. 50 under each companynt. The present appeal has been filed by the appellant after obtaining special leave. The question in this appeal is whether the companypanys premises at Eluru companystitute a factory. Section 2 m defines factory. Under s. 2 m factory means any premises including the precincts thereof Whereon twenty or more workers are working, or I were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on. It is number disputed that more than 20 persons were working on the premises. The points in issue are 1 whether those persons were workers and 2 whether any manufacturing process was being carried on therein. For the purpose of proving the prosecution case the respon- dent relied upon the following materials 1 the testimony of PW 1 A. Subbarao, the Assistant Inspector of Factories 2 his report of inspection of the premises on December 20, 1965 Ex. P1 3 the show cause numberice Ex. P3, and the appellants reply dated January 15, 1966 Ex. P5 4 the testimony of PW 2 B. P. Chandrareddi, the Provident Fund Inspector and 5 Six returns Exs. P7 to P12 , submitted by the Eluru establishment, to the Regional Provident Fund Commissioner. The materials on the record show that in the companypanys Eluru premises, sun-cured tobacco leaves bought from the growers were subjected to the processes of moistening, stripping and packing. The tobacco leaves were moistened so that they may be handled without breakage. The moistening was done for 10 to 14 days by sprinkling water on stacks of tobacco and shifting the top and bottom layers. The stalks were stripped from the leaves. The Thukku wholly spoilt and Pagu partly spoilt leaves were separated. The leaves were tied up in bundles and stored in the premises. From time to time they were packed in gunny bags and exported to the companypanys factory it Bombay where they were used for manufacturing cigarettes. All these processes are carried on in the tobacco industry. In Encyclopaedia Britannica, 1965 edition, Vol. 22, page 265 under the headingtobacco industry it is stated After curing, only during humid perio ds or in special moistening cellars can the leaf be handled without breakage. It is removed from the stalks. or sticks and graded according to companyour, size, soundness and other recognizable elements of quality. It is tied into hands, or bundles, of 15 to 30 leaves by means of a tobacco leaf Wrapped securely around the stem end of the leaves. After grading the leaf is ready for the market. In our opinion, manufacturing processes as defined in s. 2 k i were carried on in the premises. Under s. 2 k i manufacturing process means any process for making, altering, ,repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal. The definition is widely worded. The moistening was an adaptation of the tobacco leaves. The stalks were stripped by breaking them up. The leaves were packed by bundling them up and putting them into gunny bags. The breaking up, the adaptation and the packing of the tobacco leaves were done with a view to their use and transport. All these processes are manufacturing processes within s. 2 k i . The reported cases are of little help in deciding whether a particular process is a manufacturing process as defined in s. 2 k i . In State of Kerala v. V. M. Patel 1 the Court held that the work of garbling pepper by winnowing, cleaning, washing and drying it on companycrete floor and a similar process of curing ginger dipped in lime and laid out to dry in a warehouse were manufacturing processes. With regard to the decision in Col. Sardar C. S. Angre v. The State 2 it is sufficient to say that the work of sorting and drying potatoes and packing and re-packing them into bags was held number to be a manufacturing process as the work was done. for the purpose of companyd storage only and number for any of the purposes mentioned in s. 2 k i . The next question is whether 20 or. more persons worked on the premises. On behalf of the appellant it is admitted that more than 20 persons work there, but his companytention is that they are employed by independent companytractors and are number workers as defined in s. 2 1 . Section 2 1 reads - worker means a person employed, directly or through any agency, whether for wages or number, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or companynected with, the manufacturing process, or the subject of the manufacturing process In Sri Chintaman Rao anr. v. State of Madhya Pradesh the Court gave a restricted meaning to the words directly or 1 1961 1 L.L.J. 549. 2 I.L.R. 1965 15 Rai. 117. 3 1958 S.C.R. 1340, 1349, through an agency in s. 2 1 and held that a worker was a person employed by the management and that there must be a companytract of service and a relationship of master and servant between them. On the facts of that case the Court held that certain Sattedars were independent companytractors and that they and the companylies engaged by them for rolling bidis were number workers. It is a question of fact in each case whether the relationship of master and servant exists between the management and the workmen. The relationship is characterized by companytract of service between them. In Short J. W. Henderson Limited 1 Lord Thankerton recapitulated four indicia of a companytract of service. As stated in Halsburys Laws of England, 3rd ed. vol. 25, p. 448, Art. The following have been stated to be the indicia of a companytract of service, namely, 1 the masters power of selection of his servant 2 the payment of wages or other remuneration 3 the masters right to companytrol the method of doing the work and 4 the masters right of suspension or dismissal Short v. J. and W. Henderson Ltd. 1946 S. C. L. 24, at pp. 33, 34, Could v. Minister of National Insurance, 1951 1. K. B. 731 at P. 734 1951 All E. R. 368 at p.371 Pauley V. Kenaldo Ltd. 1953 1 All. E. R. 226, C. A., at p. 228 but modem industrial companyditions have so affected the freedom of the master that it may be necessary at some future time to restate the indicia e.g., heads 1 , 2 and 4 and probably also head 3 , are affected by statutory provisions Short v. J. Henderson Ltd., supra at p. 34. In Dharangadhara Chemical Works v. State of Saurashtra 2 the Court held that the critical test of the relationship of master and servant is the masters right of superintendence and companytrol of the method of doing the work. , Applying this test workmen rolling bidis were found to be employees of independent companytractors and number workers within s. 2 1 , in State of Kerala v. Patel V. M. 3 and Shankar Balaji Waje v. State of Maharashtra 4 while they were found to be workers within S. 2 1 in Bridhichand Sharma v. First Civil Judge, Nagpur 5 and workmen within the meaning of s. 2 s of the Industrial Disputes Act in D. C. Dewan Mohinder Saheb Sons United Bidi Workers Union 6 . 1 1946 S.C. H.L. 24, 33-34. 2 1957 S.C.R. 152. 3 1961 1 L.L.J. 549. 4 1962 1 Lab. L.J. 119. 5 1961 2 Lab. L.J 86. 6 1964 2 Lab. L. J. 638. There is numberabstract a priori test of the work companytrol required for establishing a companytract of service. In Short J. N. Henderson Ltd. 1 Lord Thankerton quoting Lord Justice Clerics dicta in an earlier case said that the principal requirement of a companytract of service was the right of the master in some reasonable sense to companytrol the method of doing the work. As pointed out in Bridhichands case 2 the fact that the workmen have to work in the factory imply a certain amount of supervision by the management. The Court held that the nature and extent of companytrol varied in different industries and that when the operation was of a simple nature the companytrol companyld be exercised at the end of the day by the method of rejecting the bidis which did number companye up to the proper standard. In the present case, the prosecution relied on 1 Ex. P7 to P12, 2 the testimony of PWI and 3 Exs. P1 and P5 to prove that the persons working at the companypanys premises at Eluru were employed by the management. Exhibits P7 to P12 are monthly returns for July to December 1966 submitted by the companypanys Eluru establishment to the Regional Provident Fund Commissioner under paragraph 38 2 of the Employees Provident Fund Scheme, 1952. The returns disclosed the number and names of about 200 persons employed every month and the recoveries from the wages and the companypanys companytributions on account of the provident fund of each employee. At the top of each return it was stated that the employees were companytract employees. Section 2 f of the Employees Provident Fund Act 1952 defines employee as including any person employed by or through a companytractor. Paragraphs 20 and 30 of the Employees Provident Fund Scheme 1952 shows that the employer is required to pay companytributions in respect of all such employees. Paragraph 26 of the Scheme shows that employees who have actually worked for number less than 12 months or less in the factory or establishment is entitled and required to become a member of the Fund. In view of the fact that the returns are in respect of all persons employed in the establishment either, by the management or by or through a companytractor they are number of much help in determining whether the employees- were employed by the management or were employed by the companytractors. They only show that in the months of July to December 1966, 200 workers had been working in the establishment for number less than 240 days. The testimony of PWI, A. Subbarao, the Assistant Inspector of Factories shows that on December 20, 1965 he found 120 workmen working in the premises. He is companyroborated by his inspection report Ex. PI. In his reply Ex. P-5 the appellant did number dispute the fact that 120 persons were working there. PW1 1 1946 S.C. H.L. 24. 2 19611 2 L.L.J. 86. found workmen doing the work of stripping stalks from the tobacco leaves. The work of stripping was being done under the supervision of the managements clerk J. Satyanarain Rao. At the end of the day the clerk companylected the stripped tobacco and numbered the quantity of work done in the work sheet allotted to the worker. PW1 found some workmen doing other work. The onus of proving that the workmen were employed by the management was on the prosecution. We think that the prosecution has discharged this onus. It is number disputed that more than 20 persons worked in the premises regularly every day. There is the positive evidence of PW1 that the work of stripping stalks from the tobacco leaves was done under the supervision of the management. There is numberevidence to show that the other work in the premises was number done under the like supervision. The prosecution adduced prima facie evidence showing that the relationship of master and servant existed between the work-men and the management. The appellant, did number produce any rebutting evidence. In the cross-examination of PW1, it was suggested that the workmen were employed by independent companytractors, but the suggestion is number borne out by the materials on the record. We hold that the persons employed are workers as defined in s. 2 1 . The High Court rightly held that the companypanys premises at Eluru were a factory. In the Courts below the appellant produced 1 am order of the Chief Inspector of Factories, Madras and 2 a letter of Superintendent of Central Excise I.D.O. Vijayavada. Mr. Setalvad companyceded, and in our opinion rightly that these documents throw numberlight on the question whether in 1966 premises were a factory within the meaningof s. 2 m .	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1462 to 1465 of 1967. Appeals by special leave from the judgment and order dated July 17, 1963 of the Madras High Court in Tax Cases Nos.- 29, 47, 132 and 160 of 1961 Revision Nos. 16, 28, 81 and 98 of 1961 . K. Sen and A. V. Rangam, for the appellant. Thiagarajan, for the respondents in C.A. No. 1464/1967 . Jayaram, for the respondents in C.A. No. 1465/1967 . The Judgment of the Court was delivered by Vaidialingam, J. These appeals, by special leave, by the State of Madras, are directed against the companymon judgment dated July 17, 1963 of the Madras High Court. The short question, that arises for companysideration in these appeals, is as to whether the turnover, which was the subject of companysideration by the High Court, was liable for, sales-tax, under the Madras General Sales Tax Act, 1959 1 of 1959 hereinafter called the Madras Act . The assessees claimed that the turnover in question represented sales in the companyrse of import and, as such, number liable to tax under the Madras Act. The State of Madras claimed that in all these cases the sale had been effected by a transfer of documents of title to the respective buyers after the ships had crossed the territorial waters and hence they were liable to tax under the Madras Act. The companytention of the assessees was negatived by the Assistant Commercial Tax Officer, as also by the Appellate Assistant Commissioner of Commercial Taxes. But, on further appeal by the assessees, the Sales Tax Appellate Tribunal accepted their companytention and held that the disputed turnovers were number liable to tax under the Madras Act. The revisions filed by the State against the orders of the Sales Tax Appellate Tribunal were dismissed by the High Court. Hence these appeals. Though each of the respondents in these appeals is an im- porter of a different companymodity, the pattern adopted by each of them in the matter of importing the goods companycerned from foreign companyntries and in the matter of transferring title to the respective buyers, is more or less the same. We shall, therefore, refer only to the facts relating to the dealings adopted by Davar and Company hereinafter called the assessee , the respondent in Civil Appeal No. 1462 of 1967. The asessee was assessed by the Assistant Commercial Tax Officer, South Madras and Chingleput, under the Madras Act on a turnover of Rs. 6,60,200.07 for the year 1957-58. It was carrying on business in timber at Madras and in the companyrse of its business the assessee imported timber from Burma and sold it to its customers in India. Out of the turnover above-mentioned, the assessee disputed its liability to the extent of a turnover of Rs. 1,95,490.67 on the -round that the said amount represented sales in the companyrse of import and that such sales were number liable to tax as they were companyered by Art. 286 1 b of the Constitu- tion. This claim was based on the following circumstances. The respondent-assessee entered into companytracts for sale of timber with a firm of merchants called Velu and Brothers hereinafter called the buyers . The timber was to be imported from Burma. Under the companytract the buyers were to pay the assessee 8 profit on the C.I.F. value of timber sold and also the sales tax and other charges and expenses. The buyers were to retire the shipping documents at least 10 days before the expected arrival of the steamer carrying the timber. The assessee imported two companysignments of timber from Rangoon. The value of the first companysignment was Rs. 99,098.05. The ship carrying the companysignment arrived at the Madras Harbour on October 17, 1957. The assessee got Rs. 1,00,000 from the buyers on October 24, 1957 and retired the documents of title from the bank and handed over the, said documents on the same date to the buyers to enable them to clear the goods. All charges and expenses by way of import duty, clearance, charges etc., were paid by the buyers on behalf of the assessee,. A second companysignment reached Madras by ship on .December 17, 1957. The assessee obtained from the buyers, on December 23, 1957 the value of this companysignment after handing over to the buyers the necessary shipping documents. On these facts- both the Commercial Tax Officer as well as the Appellate Assistant Commissioner came to the companyclusion that the sales effected by the assessee to the buyers were number sales in the companyrse of import, but were local sales liable to tax under the Madras Act. The Sales Tax Appellate Tribunal, on the other hand, held to the companytrary. The High Court has companycurred with the view of the Appellate Tribunal. According to the Assistant Commercial Tax Officer and the Appellate Assistant Commissioner the sale was effected by the assessee to the buyer after the companysignment of timber had companye into the Madras Port and in companysequence there was numberintention to transfer the property in the goods to the buyers before they were cleared from the customs frontier and hence the sales companyld number be companysidered to be sales in the companyrse of import. The Appellate Tribunal took the view that the sale by the assessee to the buyers had been effected by transferring the documents of title relating to the goods, before the goods crossed the customs barrier and before the import became companyplete. Therefore, according to the Tribunal, the sales should be treated as being in the companyrse of import and, in companysequence, number liable for tax under the Madras Act. On the facts stated above, the parties were number in dispute but, before the High Court, the State raised the companytention that the sales in question were number sales in the companyrse of import as the documents of title were handed over by the assessee to the buyers after the ship had crossed the territorial waters. According to the State, the expression customs frontier, occurring in S. 5 2 of the Central Sales Tax Act, 1956 LXXIV of 1956 hereinafter called the Central Act is companyerminous with the extent of the territorial waters of India, as fixed by the Proclamation, dated March 22, 1956 issued by the President of India. That is, according to the State, the import is companyplete when the ship carrying the goods from a foreign port enters the territorial waters and any sale by the importer, by transfer of documents of title to the goods subsequent to such entry will number amount to a sale in the companyrse of import. According to the assessee, customs frontier in s. 5 2 of the Central Act, must be treated as analogous to customs barrier and, so read, the position would be that a sale effected by transfer of documents of title before the goods cross the customs barrier would number be liable to tax under the Madras Act. The High Court has, after a reference to various decisions of this Court as to when a sale can be companysidered to be in the companyrse of import or export, held that the customs frontier as laid down by this Court does number mean any geographical features like land or companyst or limits of territorial waters, but only the operation of the machinery of the Customs Department companysisting of levy and companylection of duty and clearance of the goods. The High Court further held that it would be proper to companystrue the words customs frontiers as customs barriers in the Central Act. In this view the High Court held that as the sale had been effected by transfer of title to the goods before they entered the customs barrier, the sale was number liable to tax under the Madras Act. On behalf of the appellant-State, Mr. A. K. Sen, learned companynsel, urged that the view of the Madras High Court companystruing the words customs frontiers as customs barriers in the Central Act was erroneous. According to the learned companynsel, on the admitted facts the sales in all these cases had been effected by transfer of the documents of title long after the sales had ceased to be in the companyrse of import. This companytention, on behalf of the State, was resisted by Mr. Thiagarajan and Mr. K. Jaya Ram, appearing for the respondent in Civil Appeals Nos. 1464 and 1465 of 1967, respectively. We are of the view that the judgment of the Madras High Court cannot be sustained and the, expression customs frontiers in s. 5 of the Central Act cannot be companystrued to mean customs barriers. Article 286 1 places a ban on the State imposing or authorising the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place outside the State or in the companyrse of import of goods into or export of goods out of the territory of India. Clause 2 of Art. 286 gives power to the Parliament, by law, to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause 1 . Accordingly Parliament has enacted the Central Act. Section 5 of that Act lays down the companyditions under which a sale or purchase of goods can be said to take place in the companyrse of import or export. Sub-sections 1 and 2 deal with sale or purchase of goods in the companyrse of export and sale or purchase of goods in the companyrse of import, respectively. As we are companycerned with a sale in the companyrse of import, the relevant provision is sub-s. 2 of s. 5, which is as, follows 5 2 A sale or purchase of goods shall be deemed to take place in the companyrse of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India. In this case, the claim made by the assessee for exemption from tax liability is on the -round that the sale was effected by transfer to the buyer of documents of title to the goods. Under s. 5 2 of the Central Act, in order to treat the sale as one in the companyrse of import, the documents of title must have been transferred before the goods have crossed the customs frontiers of India. The question is what does the expression customs frontiers of India, in s. 5 of the Central Act, mean ? To answer this question, it is necessary to refer to certain Proclamations made by the, President of India and Notifications issued by the Central Government under s. 3-A of the Sea Customs Act, 1878 VIII of 1878 hereinafter called the Act . The President of India has issued a Proclamation, dated March 22, 1956 and that companytains a declaration as to the extent of the territorial waters of India. That Proclamation has been published with the numberification of the Government of India in the Ministry of External. Affairs, No. S.R.O. 669, dated March 22, 1956 and is as follows R.O. 669.-The following proclamation by the President is published for general information PROCLAMATION WHEREAS international law has always recognised that sovereignty of a state extends to a belt of sea adjacent to its companyst AND WHEREAS international practice is number uni- form as regards the extent of this sea-belt companymonly known as the territorial waters of the State, and companysequently it is necessary to make a declaration as to the extent of the territorial waters of India I, Rajendra Prasad, President of India, in the Seventh Year of the Republic, do hereby proclaim that, numberwithstanding any rule of law or practice to the companytrary which may have been observed in the past in relation to India or any part thereof, the territorial waters of India extend into the sea to a distance of six nautical miles measured from the appropriate base line. RAJENDRA PRASAD, President. On September 30, 1967 another Proclamation was issued by the President of India and published with the numberification of the Government of India in the Ministry of External Affairs, No. F.L lll 1 /67, dated September 30, 1967. By this Proclamation the earlier Proclamation of March 22, 1956 has been superseded and the territorial waters of India have been declared to extend into the sea to a distance of twelve nautical miles measured from the appropriate base line. But in the present appeals, we are companycerned only with the earlier Proclamation dated March 22, 1956. Section 3-A of the Act gives power to the Central Govern- ment, to define, by numberification in the Official Gazette, the customs frontiers of India. By virtue of the powers companyferred by this section, the Central Government Ministry of Finance, Revenue Division had issued a numberification, No. 25-Customs, dated April 1, 1950, defining the customs frontiers of India but it is number necessary to Consider the definition companytained in this numberification, as it has been superseded by the issue of a fresh Notification, No. S.R.O. 1683 dated August 6, 1955. The latter numberification, issued by the Ministry of Finance Revenue Division , Customs. which is relevant for the present purpose, is as follows New Delhi, the 6th August 1955 R.O. 1633.-In exercise of the powers companyferred by section 3-A of the Sea Customs Act, 1878 VIII of 1878 , and in supersession of the numberification of the Government of India in the Ministry of Finance Revenue Division No. 25-Customs. dated the 1st April 1950, the Central Government hereby defines the customs frontiers of India as the boundaries of the territory, including territorial waters, of India. Sd - Jt. Secretary. The expression customs frontiers of India in s. 5 of the Central Act, in our opinion, must be companystrued in accordance with the numberification issued by the Central Government under S. 3-A of the Act, on August 6, 1955 read with the Proclamation of the President of India dated March 22, 1956. So applying the definition of customs frontiers it is clear that, in the instant case, the -sales were affected by transfer of documents of title long after the ,goods had crossed the customs frontiers of India. We have already stated that the ships carrying the goods in question were an in the respective harbours within the State of Madras when the sales were affected by the assessees by transfer of documents of title to the buyers. If so, it follows that the claim made by the assessees that the sales in question were sales in the companyrse of import, has been rightly rejected by the assessing authority. Unfortunately, though various aspects seem to have- been pressed before the High Court by the State of Madras, this numberification of August 6, 1955 issued by the Government of India, defining the customs frontiers of India, was number brought to the numberice, of the High Court. In the result, the companymon order, dated July 17, 1963 of the Madras High Court is set aside and the appeals allowed. In the circumstances of the case, there will be numberorder as to companyts.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1408 of 1966. Appeal by special leave from the AWard dated May 19, 1965 February 23, 1966 of the Addl. Industrial Tribunal, Delhi in Industrial Dispute No. 109 of 1965. R. Gokhale, G.L. Sanghi and K.P. Gupta for the appellant. Urmila Kapur and Bhajan Ramrakhiani, for the respondents. The Judgment of the Court was delivered by Shah, J. By order February 24, 1965 the Chief Commissioner of Delhi referred for adjudication, industrial disputes between the appellant companypany and its workmen relating to dearness allowance and introduction of a scheme of gratuity for the benefit of the workmen. The Industrial Tribunal, Delhi framed the following gratuity scheme On death or retirement on One months wages for each superannuation or on becoming Year of service of part mentally or physically unfit there of in excess of six for further service. subject to a maximum of 15 monthss wages,In case of death of Employee the gratuity shall be payable to his numberinee or if there is numbernominee to his legal heirs On termination after five 15 days for each year of se- yearsservice for any cause rvice or part there of in whatsoever except by way of exces of six months subject retrenchment or resignation to a maximum of 15 months resignation. subject wages On resignation after 10 years of service. 15 days wages for each year of service or part thereof in excess of six months to a maximum of 15 months wages Provided that if termination is for any misconduct causing financial loss to the companypany, the amount of loss shall be deducted from the gratuity payable. The word wages in this Scheme shall mean the total pay packet of the workman including dearness which he was last drawing. The Tribunal also directed that all workmen who were appointed in 1960 or earlier should get dearness allowance at Rs. 3 for every ten point rise in the companyt of Consumer Price Index base 1960 over and above their existing wages with effect from 1st January, 1965. In case of workmen appointed after 1960, the companysumer price index base 1960 on the date of his appointment shall be found out and he shall be given Rs. 3 as dearness for every ten point rise in companyt of Consumer Price index base 1960 above it with effect from 1st January, 1965 or such later date on which the limit of 10 point rise in companyt of Consumer Price Index base is crossed. The Tribunal also directed that dearness allowance will number be enhanced till the limit of ten points be crossed, and that dearness allowance once granted will number be reduced till the Consumer Price Index falls by more than 10 points. The Company has appealed to this Court with special leave. In the view of the Tribunal, the financial position of the companypany is very sound and that it has financial capacity and, stability to bear the additional burden of dearness allowance and of the gratuity scheme. In reaching that companyclusion the Tribunal relied upon a news item published in the newspapers that 2000 Russian Tractors were being immediately imported by the Company even though the agency of the Company was being terminated. In relying upon newspaper reports the Tribunal may have erred. But the companyclusion of the Tribunal is rounded upon a review of several other circumstances. It is true that one of the primary lines of business of the companypany was of selling tractors as agents of Russian manufacturers. That agency was in danger of being terminated because the State Trading Corporation had arranged to take over the agency. But the balance sheets of the companypany show that the agency was only one of the many lines of business and the closure of the agency of the tractor manufacturers was number likely to affect the financial structure of the Company seriously. The Tribunal has on appreciation of evidence companye to the companyclusion that the financial position of the companypany was sound and assuming that the Tribunal is governed by the strict rules prescribed by the Evidence Act, sitting in appeal with special leave we will number be justified in interfering with the finding of the Tribunal even if it be open to the criticism that a part of the evidence relied upon is number in law relevant. The companypany had on its roll 244 workmen out of whom 118 entered employment after 1960. The companypany has been paying to its workmen wages companysisting of two companyponents-basic wages and 50 per cent of the basic wages as dearness allowance. Payment of wages is made in this form to all workmen whether their employment companymenced before the year 1960 or thereafter. It is true that before 1960 the companypany used to make a companysolidated payment without specifying any amount of basic salary or dearness allowance. Since 1960 in every appointment letter it was expressly recited that the employee v,iII get a companysolidated salary companysisting of 2/3rd of the companysolidated salary as basic wages and the balance as dearness allowance. The companypany has produced before the Tribunal 118 such letters of appointment in respect of all employees employed after the year 1960. In respect of the employees appointed prior to the year 1960 in the salary register basic salary and dearness allowance was separately entered though at the time of appointment of employees there was numberallocation as basic wages and dearness allowance. There is numberdispute that since the year 1960 there has been a rise in the companyt of living. The Consumer Price Index for Industrial Workers which was 100 in 1960, had risen to more than 130 in 1965. The management of the companypany granted dearness allowance to employees in other companycerns under its management even though those other companycerns were number financially very sound. No serious argument has been advanced before us that the rise in dearness allowance is number Justified. The only ground of companyplaint is that by relating the dearness allowance to the total wage packet the workmen are given a rise both in the dearness allowance and in the basic wage The Tribunal has awarded dearness allowance at the flat rate of Rs. 3 for every 10 point rise in the companyt of Consumer Price Index. The rise is number related to the quantum of basic wage or companysolidated wage. It is a flat uniform rate applicable to every workman. The Tribunal was of the view that the allocation between the basic wage and the dearness allowance was number fair, but for the purpose of the present reference, the question is academic because dearness allowance is number related to the quantum of salary that the workmen receive. The argument that the rise will operate to give to the workmen besides the additional dearness allowance, a percentage increase in dearness allowance already paid as part of the companysolidated wage cannot be accepted. We do number therefore see any reason to interfere with the order passed by the Tribunal with regard to the dearness allowance at the rate of Rs. 3 for every 10 point rise in the Consumer Price Index. Gratuity payable to a workman on termination of employment is to be companyputed on the total wage packet of the workman including dearness allowance which he has last drawn. This order makes a departure from the numbermal rule which is adopted in industrial awards. In M s. British Paints India Ltd. v. Its Workmen 1 this Court while introducing a gratuity scheme for the first time in the companycern directed that the amount of gratuity shall be related to the basic wage or salary and number to the companysolidated wage including dearness allowance. A similar order was made in May and Baker India Ltd. v. Their Workmen 2 . It is true 1 1966 2 S.C.R. 523. 2 1961 II L.L that in British India Corporation v. The Workmen 1 , an award made by the Tribunal fixing the quantum of gratuity on gross salary i.e., basic wage plus dearness allowance was upheld by this Court. The Court affirmed that the usual pattern in fixing the gratuity is to relate it to the basic wage, but refused to interfere with the order because the. practice in that companycern was to fix gratuity on the companysolidated wage. similarly in Hindustan Antibiotics Ltd v. their work men 2 , the Tribunal directed the employer to pay gratuity at the rate of one half of wages for each month including dearness allowance but excluding house rent and all other allowances for each companypleted year of service subject to a maximum of wages for ten months. In rejecting the claim of the employers for relating gratuity to the basic wage, this Court observed If the industry is a flourishing one, we do numbersee any reason why the labour shall number have the benefit of both the schemes i.e. the employees provident fund and the gratuity scheme. Gratuity is an additional form of relief for the workmen to fall back upon. If the industry can bear the burden, there is numberreason why he shall number be entitled to both the retirement benefits. The Tribunal companysidered all the relevant circumstances the stability of the companycern, the profits made by it in the past, its future prospects and its capacity and came to the companyclusion that, in the companycern in question, the labour should be provided with a gratuity scheme in addition to that of a provident fund scheme.There was numberjustification to disturb this companyclusion. In The Remington Rand of India Ltd. v. The Workmen 8 this Court declined to interfere with the order of the Tribunal awarding gratuity related to the companysolidated wage including dearness allowance in view of the flourishing nature of the companycern, the enormous profits it was making, the reserves it had built up as also in view of the fact that it was paying gratuity to. executives on the basis of companysolidated wages. In The Delhi Cloth General Mills Co., Ltd. v. The Workmen Ors. 4 this Court had to companysider whether gratuity payable to workmen in the textile industry in the Delhi region should be related to. the companysolidated wage. After referring to the decisions which were brought to the numberice of the Court, it was observed that It is number easy to extract any principle from these casesas precedents they are companyflicting The 1 1965 Vol. 10 Factory Law Report, 244. 2 1967 I L.L.J. 114. 3 1968 1 S.C.R.164. 4 1969 2 S.C.R. 307. Tribunal has failed to take into account the prevailing pattern in the textile industry all over the companyntry It is a companyntrywide industry and in that industry, except in one case to be presently numbericed, gratuity has never been granted on the basis of companysolidated wages. The Court after referring to the schemes framed in respect of the industries in Bombay and Ahmedabad and other industries companycluded that determination of gratuity is number based on any definite rules. In each case it must depend upon the prosperity of the companycern, needs of the workmen and the prevailing economic companyditions examined in the light of the auxiliary benefits which the workmen may get on determination of employment. There is numberclear evidence on the record, and numberprecedents have been brought to our numberice, to justify a departure from the numbermal rule that the quantum of gratuity is related number to the companysolidated wage packet but to the basic wage. A departure may be made from the numbermal rule, if there be some strong evidence or precedent in the industry, or companyduct of the employer or other exceptional circumstances to justify that companyrse. In the absence of such evidence, we are of the view that gratuity should be related to the basic wage and number to the companysolidated wage packet. In the present case it is found that the financial position of the Company is sound but there is numberevidence that the companypany is making abnormally high profits number is there any evidence that in its sister companycerns or in other engineering companycerns in the region there is a practice of awarding gratuity related to companysolidated wages. It was urged on behalf of the companypany that even though the workmen had, in the claim made by them, demanded a scheme of . gratuity benefit at the rate of 15 days wages for each year of service in case of death or retirement on attaining the age of superannuation or on becoming mentally or physically unfit for further service,. the Tribunal had awarded gratuity at the rate of one months wages for each year of service subject to a maximum of 15 months wages. But the claim was made on the footing that the wages were to include dearness allowance. When the claim is number accepted, we cannot hold the workmen bound by the multiples. We make numbermodification in clause 1 of the scheme. We modify the scheme in so far as it relates to the dearness allowance and direct that for the last sentence of the gratuity scheme the following shall be substituted The word wages in the scheme shall mean basic salary or emoluments excluding dearness allowance and other allowances and benefits payable to the workman which he had last drawn. Subject to the above modification, the appeal fails and is dismissed.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 851 of 1966. Appeal by special leave from the judgment and order dated December 20, 1963 of the Allahabad High Court, Lucknow Bench in First Civil Appeal No. 28 of 1954. Jagdish Swarup, Solicitor-General, Yogeshwar Prasad, M. Kohli and G.R. Chopra, for the appellant. M. Singhvi and S.P. Nayar, for the respondent. The Judgment of the Court was delivered by Shah, Ag. C.J. Maula Bux hereinafter called the plaintiff entered into a companytract No. C/74 with the Government of India on February 20, 1947, to supply potatoes at the Military Headquarters, U.P. Area, and deposited an amount of Rs. 10,000 as security for due performance of the companytract. He entered into another companytract with Government of India on March 4, 1947 No. C/120 to supply at the same place poultry, eggs and fish for one year and deposited an amount of Rs. 8,500/- for due performance of the companytract. Clause 8 of the companytract ran as follows The officer sanctioning the companytract may rescind his companytract by numberice to me us in writing -- i ii iii If I we decline, neglect or delay to companyply with any demand or requisition or in any other way fail to. perform or observe any companydition of the companytract. v vi In ease of such rescission, my our security deposit or such portion thereof as the officer sanctioning the companytract shall companysider fit or adequate shall stand forfeited and be absolutely at the disposal of Government, without prejudice to any other remedy or action that the Government may have to take. In the case of such rescission, the Government shall be entitled to recover from me us on demand any extra expense the Government may be put to in obtaining supplies services hereby agreed to be supplied, from elsewhere in any manner mentioned in clause 7 ii hereof, for the remainder of the period for which this companytract was entered into, without prejudice to any other remedy the Government may have. The plaintiff having made persistent default in making regular and full supplies of the companymodities agreed to be supplied, the Government of India rescinded the companytracts the first on November 23, 1947, and the second on December 2,1947, and forfeited the amounts deposited by the plaintiff. The plaintiff companymenced an action against the Union of India in the Court of the Civil Judge, Lucknow, for a decree for Rs. 20,000/- being the amounts deposited with the Government of India for due performance of the companytracts and interest thereon at the rate of 6 per cent. per annum. The Trial Court decreed the suit. The Court held that the Government of India was justified in rescinding the companytracts, but they companyld number for left the amounts of deposit, for they had number suffered any loss in companysequence of the default companymitted by the plaintiff. The High Court of Allahabad in appeal modified the decree, and awarded Rs. 416.25 only with interest at the rate of 3 per cent from the date of the suit. The plaintiff has appealed to this Court with special leave. The trial Court found in decreeing the plaintiffs suit that there was numberevidence at all to prove that loss, if any, was suffered by the Government of India in companysequence of the plaintiffs default, and on that account amounts deposited as security were number liable to be forfeited. In the view of the High Court, to for feature of a sum deposited by way of security for due performance of a companytract, where the amount forfeited is number unreasonable, s. 74 of the Contract Act has numberapplication.The Court observed that the decision of this Court in Fateh Chand v. Balkishan Dass 1 did number purport to overrule the previous trend of authorities to the effect that earnest money deposited by way of security for the due performance of a companytract does number companystitute penalty companytemplated under s. 74 of the Indian Contract Act, that even if it be held that the security deposited in the case was a stipulation by way of penalty, the Government was entitled to receive from the plaintiff reasonable companypensation number exceeding that amount, whether or number actual damage or loss was proved to have been caused, and that even in the absence of evidence to prove the actual damage or loss caused to the Govern 1964 1 S.C.R. 515. ment there were circumstances in the case with indicated that the amount of Rs. 10,000 in the case of potato companytract and Rs. 8,500/- in the case of poultry companytract may be taken as number exceeding the reasonable companypensation for the breach of companytract by the plaintiff. The High Court further observed that the companytract was for supply of large quantities of potatoes, poultry and fish, which would number ordinarily be available in the market, and had to be procured in case of breach of companytract everyday with great inconvenience, and in the circumstances the Court companyld take judicial numberice of the fact that 1947-48 was the period when the prices were rising and it would number have been easy to procure the supplies at the rates companytracted for. The High Court companycluded taking into companysideration the amount of inconvenience and the difficulties and the rising rate of prices, it would number be unfair if in case of such breach for the supply of such huge amounts of potatoes and poultry, we companysider an amount of Rs. 18,500/.-by way of damages as being number unreasonable. Under the terms of the agreements the amounts deposited by the plaintiff as security for due performance of the companytracts were to stand forfeited in case the plaintiff neglected to perform his part of the companytract. The High Court observed that the deposits so made may be regarded as earnest money. But that view cannot be accepted. According to Earl Jowitt in The Dictionary of English Law at p. 689 Giving an earnest or earnest-money is a mode of signifying assent to a companytract of sale or the like, by giving to the vendor a numberinal sum e.g. a shilling as a token that the parties are in earnest or have made up their minds. As observed by the Judicial Committee in Kunwar Chiranjit Singh v. Har Swarup 1 Earnest money is part of the purchase price when the transaction goes forward it is forfeited when the transaction falls through, by reason of the fault or failure of the vandee. In the present case the deposit was made number of a sum of money by the purchaser to be applied towards part payment of the price when the companytract was companypleted and till then as evidencing an intention on the part of the purchaser to buy property or goods. Here the plaintiff had deposited the amounts claimed as security for guaranteeing due performance of the companytracts.Such deposits cannot be regarded as earnest money. Section 74 of the Contract Act provides When a companytract has been broken, if a sum is named in the companytract as the amount to be paid in case A.I.R. 1926 P.C. 1 of such breach, or if the companytract companytains any other stipulation by way of penalty, the party companyplaining of the breach is entitled, whether or number actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the companytract reasonable companypensation number exceeding the amount so named or, as the case may be, the penalty stipulated for. There is authority, numberdoubt companyoured by the view which was taken in English cases, that s. 74 of the Contract Act has numberapplication to cases of deposit for due performance of a companytract which is stipulated to be forfeited for breach Natesa Aiyar v. Appavu Padayachi 1 Singer Manufacturing Company v. Raja Prosad 2 Manian Patter v. The Madras Railway Company a . But this view is numberlonger good law in view of the judgment of this Court in Fateh Chands case 4 . This Court observed at p. 526 Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases i where the companytract names a sum to be paid in case of breach, and where the companytract companytains any other stipulation by way of penalty. The measure of damages in the case of breach of a stipulation by Way of penalty is by s. 74 reasonable companypensation number exceeding the penalty stipulated for. The Court also observed It was urged that the section deals in terms with the right to receive from the party who has broken the companytract reasonable companypensation and number the right to forfeit what has already been received by the party aggrieved. There is however numberwarrant for the assumption made by some of the High Courts in India, that s. 74 applies only to cases where the aggrieved party is seeking to receive some amount on breach of companytract and number to cases whereupon breach of companytract an amount received under the companytract is sought to be forfeited. In our judgment the expression the companytract companytains any other stipulation by way of penalty companyprehensively applies to every companyenant involving a penalty whether it is for payment on breach of companytract of money or delivery of property in future, or for forfeiture of right to money or other property already delivered. Duty number to enforce the penalty clause but 1 1913 LL.R. 38 Mad. 178. 2 1909 I.L.R. 36 Cal. 960. 3 1906 I.L.R. 19 Mad. 188. 4 1964 1 S.C.R. 515. only to award reasonable companypensation is statutorily imposed upon companyrts by s. 74. In all cases,. there fore, where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of companytract which expressly provides for forfeiture, the companyrt has jurisdiction to award such sum only as it companysiders reasonable but number exceeding the amount specified in the companytract as liable to. forfeiture., and that, There is number ground for holding that the expression companytract companytains any other stipulation by way of penalty is limited to cases of stipulation in the nature of an agreement to. pay money or deliver property on breach and does number companyprehend companyenants under which amounts paid or property delivered under the companytract, which by the terms of the companytract expressly or by clear implication are liable to be forfeited. Forfeiture of earnest money under a companytract for sale of property-movable or immovable--if the amount is reasonable, does number fall within s. 74. That has been decided in several cases Kunwar Chiranjit Singh v. Hat Swarup t Roshan Lal v. The Delhi Cloth and General Mills Company Ltd., Delhi 2 Muhammad Habibullah v. Muhammad Shafi 3 Bishan Chand v. Radha Kishan Das 4 These cases are easily explained, for forfeiture of a reasonable amount paid as earnest money does number amount to. imposing a penalty. But if forfeiture is of the nature of penalty, s. 74 applies. Where under the terms of the companytract the party in breach has undertaken to pay a sum of money or to forfeit a sum of money which he has already paid to the party companyplaining of a breach of companytract, the undertaking is of the nature of a penalty. Counsel for the Union, however, urged that in the present case Rs. 10,000/- in respect of the potato companytract and Rs. 8,500 in respect of the poultry companytract were genuine preestimates of damages which the Union was likely to suffer as a result of breach of companytract, and the plaintiff was number entitled to any relief against forfeiture. Reliance in support of this companytention was placed upon the expression used in s. 74 of the Contract Act , the party companyplaining of the breach is entitled, whether or number actual damage or loss is proved to have been caused there by, to receive from the party who has broken the companytract reasonable companypensation. It is true that in every case of breach of companytract the person aggrieved by the breach is number required to prove actual loss or damage suffered by him before he can claim a decree, and the Court is companypetent to award reasonable companypensation in A.I.R. 1926 P.C. 1. 2 I.L.R. 33 All. 166. I.L.R. 41 All. 324. 4 I.D. 19 All. 490. case of breach even if numberactual damage is proved to have been suffered in companysequence of the breach of companytract. But the expression whether or number actual damage or loss is proved to have been caused thereby is intended to companyer different classes of companytracts which companye before the Courts. In case of breach of some companytracts it may be impossible for the Court to assess companypensation arising from breach, while in other cases companypensation can be calculated in accordance with established rules. Where the Court is unable to assess the companypensation, the sum named by the parties if it be regarded as a genuine preestimate may be taken into companysideration as the measure of reasonable companypensation, but number if the sum named is in the nature of a penalty. Where loss in terms of money can be determined, the party claiming companypensation must prove the loss suffered by him. In the present case, it was possible for the Government of India to lead evidence to prove the rates at which potatoes, poultry, eggs and fish were purchased by them when the plaintiff failed to deliver regularly and fully the quantities stipulated under the terms of the companytracts and after the companytracts were terminated. They companyld have proved the rates at which they had to be purchased and also the other incidental charges incurred by them in procuring the goods companytracted for. But numbersuch attempt was made. Counsel for the Union, however, companytended that in the Trial Court the true position in law was number appreciated and the parties proceeded to trial on the question whether the Government was entitled in the circumstances of the case to forfeit under cl. 8 the terms of the companytracts the deposits made for securing due performance of the companytracts. Since there was numberpleading and numberissue on the question of reasonable companypensation, an opportunity should be given to the parties to lead evidence on this point. But with the suit out of which this appeal arises was tried another suit filed by the plaintiff Maula Bux against the Union for a decree for Rs. 53,000 odd being the price of goods supplied under the terms of another companytract with the Government of India. In that suit the Union claimed that it had set off the amount due to the plaintiff, amounts which the plaintiff was liable to pay as companypensation to the Union for loss suffered because of the plaintiffs failure to carry out the terms of the companytracts C/74 and C/120. The Trial Court held in that case that the Union failed to prove that any loss was suffered by it in companysequence of the default by Maula Bux to supply potatoes, poultry, eggs and fish as stipulated by him. Against the judgment of that Court Appeal No. 2001 of 1966 is filed in this Court and is decided today. The High Court of Allahabad having companyfirmed the decree passed by the Trial Court, numberuseful purpose will be served by directing a fresh enquiry into the question whether the Union of India is entitled to recover from the plaintiff any reasonable companypensation for breach of companytracts and whether that companypensation is equal to or exceeds the amounts deposited. Evidence on that question has already been led and findings have been recorded. In dealing with the Appeal No. 2001 of 1966 we have held that the Union has failed to establish by evidence that any damage or loss was suffered by them which arose out of the default companymitted by the plaintiff. We decline therefore to afford another opportunity for leading the evidence as to the loss suffered by the Union on account of the failure on the part of the plaintiff to carry out the companytracts. On the view taken by us it must be held that the High Court was in error in disallowing the plaintiffs case. The High Court has held that the plaintiff is number entitled to any interest prior to the date of the suit. No argument has been advanced before us challenging that view. Since interest was number recoverable under any companytract or usage or under the provisions of the Interest Act, 1838 the High Court allowed interest at the rate of 3 per annum on Rs. 416.25 from the date of the suit, the rate of interest allowed on the claim decreed also should number exceed 3 per cent per annum. We set aside the decree passed by the High Court and substitute the following decree The Union of India do pay to the plaintiff Rs. 18,500/- with interest at the rate of 3 per annum from the date of the suit till payment. The plaintiff was guilty of breach of the companytracts. Considerable inconvenience was caused to the Military authorities because of the failure on the part of the plaintiff to supply the food-stuff companytracted to be supplied. Even though there is numberevidence of the rates at which the goods were purchased, we are of the view, having regard to the circumstances of the case, that the fairest order is that each party do bear its own companyts throughout.	Case appeal was accepted by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 145 to 156 of 1968. Appeals by special leave from the judgment and order dated September 6, 1967 of the Kerala High Court in Criminal Appeals Nos. 114 to 124 of 1967. H. Dhebar, Lily Thomas for S.P. Nayar, for the appellant in all the appeals . S. Nambiar, for the respondent in all the appeals . The Judgment of the Court was delivered by Bhargava, J. These twelve companynected appeals arose out of twelve prosecutions instituted by the .appellant, Provident Fund Inspector, Trivandrum, against the respondent, Secretary, N.S.S. Co-operative Society, Changanacherry, for offences punishable under the Employees Provident Funds Act, 1952 hereinafter referred to as the Act on the ground of companytravention of the provisions of the Employees Provident Fund Scheme, 1952 hereinafter referred to as the Scheme . The specific charges related to the .failure of the respondent 1 to pay to the Employees Provident Fund the employees and the employers share of companytribution together with administrative charges for the twelve quarters companyprised between May, 1961 and February, 1964 2 to submit the returns in Forms 5 and 10 for the same twelve quarters 3 to send statements of recoveries of companytributions in Form. 12 for the same 12 quarters and 4 to send the initial return in Form 9 showing the particulars as on 30-4-1961 along with Form 2 in the manner specified in the Scheme. The pay- ment of the employers and employees companytribution to the Provident Fund, and the question of sending the various statements arose in respect of a Press which was purchased by the N.S.S. Co-operative Society on the 21st March, 1961 from the Travancore-Cochin Central Printing and Publishing Co-operative Society, Ltd. According to the appellant, this establishment of the Printing Press had been set up in the year 1946 and it companytinued in existence even subsequently when, in March, 1961, the Press was purchased by the N.S.S. Co-operative Society. Until the purchase by the N.S.S. Co- operative Society, the establishment was employing only 9 workmen but, after the N.S.S. Co-operative Society started working the Press, the number of workmen increased beyond 20, so that the Act became applicable to this establishment. The case was that, since the Act became applicable w.e.f. April 1961, it was the duty of the respondent to companyply with the requirements of the Act and pay the companytribution and send the various returns which the respondent failed to do On trial, the Magistrate recorded the finding that the establishment as run by the N.S.S. Co-operative Society after 1961 companyld number be held to be an old establishment set up in the year 1946, had emerged as a new establishment in 1961, and, companysequently, for a period of three years from April, 1961, the provisions of the Act would number apply to this establishment because of the provision companytained in section 16 1 b of the Act. On this view, the Magistrate acquitted the respondent in all the cases. The respondent appealed to the High Court of Kerala. The High Court disagreed with the Magistrate and held that, even though there was change of management, change of workers and change of machinery. when the N.S.S. Co-operative Society purchased the Press in 1961, the business that was carried on was the same as it was at the time of purchase, so that it companyld number be held that a new establishment had companye into existence different from the one which existed before the purchase. The High Court, however, took the view in law that, under s. 16 1 b of the Act, an establishment is given exemption for a period of 3 years from the date on which it came within the purview of the Act, treating the establishment as an infant establishment standing in need of protection. The High Court, therefore, held that this establishment was protected from the applicability of the Act for a period of 3 years from 21st March, 1961 which would companyer the period in respect of which prosecutions were launched by the appellant. On this ground, the High Court upheld the orders of acquittal passed by the Magistrate. The appellant has number companye up in these appeals against this decision of the High Court by special leave granted by this Court. It is quite clear that on the question of law decided by the High Court in favour of the respondent, that decision cannot be upheld in view of the decision of this Court in R. Ramakrishna Rao v. State of Kerala 1 where it was held that, under s. 16 1 b , in the case of a new establishment, the period of five years laid down by subsequent amendment is companynted forward from the date the establishment is set up, but, in the case of an existing establishment, from the date the establishment has been set up In the present case, since the establishment was first set up in the year 1946, the period of exemption for purposes of applying s. 16 1 b of the Act would run from the date on which the establishment had been set up and companyld number be companynted from April, 1961 when the Act became applicable to this establishment. In view of that decision of this Court, the acquittal of the respondent on the ground given by the High Court cannot be maintained. However, on behalf of the respondent, it was argued that, on the evidence in this case, the High Court was number justified in recording the finding that this establishment as set up in the year 1946 companytinued to exist as it was before, even after the purchase by the N.S.S. Co-operative Society in 1961. It was urged that, on facts, the companyrect finding that should have been recorded was that the old establishment ceased to exist and an entirely new one was set up in the year 1961. In support of this plea, we were taken by learned companynsel for the parties through the evidence which was tendered during the trial before the Magistrate and, after going through it, we are. inclined to accept the submission made on behalf of the respondent. The burden of proving that the old establishment had companytinued and that a new establishment was number set up in the year 1961 was on the appellant, as the appellant had filed criminal cases for prosecution of the respondent. The first prosecution witness was the Provident Fund Inspector, Raghunathan, but most of his evidence relates to facts discovered by him and number in his personal knowledge. It is he who made a report for the prosecution of the respondent and in that report itself he admitted that the strength of the establishment was less than 20 till 16th April, 1961 when it was purchased by the N.S.S. Co-operative Society. Headded that there were only 9 employees at the date of purchase of these 9 employees, 6 were reemployed by the purchasers. Significance attaches to the word reemployed which implies that there was numbercontinuity of employment even of those 6 employees. That witness also admitted that, after the purchase, the Press was removed from its original place and additional machineries were purchased and added to the Press. According to him, he also received information that companypensation due to the workers till the date of sale was disbursed by the previous owner, T.C Central Co- operative Printers and publishers. He added that the 1 1968 2 S.C.R.819. persons working in the Press at the time of his evidence were all persons who had been appointed by the N.S.S. Co- operative Society. Thus, his evidence does number prove that the establishment run by the N.S.S. Co-operative Society was the same as the establishment which was being run by the previous owner of the Press. The owner changed, me machinery changed, the location of the Press was altered, and even the employees were number the same as before. In fact, numbere of the employees, according to his evidence, was companytinued in service. The only witness on whom reliance companyld be placed on behalf of the appellant to prove companytinuity of the business was P.W. 2, Sadasivan Nair, who claimed to be one of the employees in this Press of the previous employer and who stated mat he companytinued to be employed by the N.S.S. Co-operative Society. His evidence has rightly been criticised on the ground that he is a disgruntled person who lost his service some years later when the press was being run by the N.S.S. Co-operative Society. Further, he stated on oath that the Press was taken over with all its workers which is clearly a wrong statement and is companytradicted by P.W. 1, the Provident Fund Inspector himself. It is also significant that, according to the Provident Fund Inspector, companypensation was paid to the previous employees by the previous employer which clearly shows that the previous employees were number companytinued in service, and that they were paid companypensation for termination of their services on transfer of the Press presumably in accordance with the provisions of section 25FF of the Industrial Disputes Act. The prosecution companyld have easily produced the accounts of the previous owner to show that there were at least some employees who were companytinued in service and who were number paid companypensation, but numbersuch attempt was made on behalf of the appellant. Even the sale- deed in favour of the N.S.S. Co-operative Society has number been put in the paper-book before us and its absence is significant in view of the statement made by D.W. 1, one of the Directors of the N.S.S. Co-operative Society, who stated that the N.S.S. Co-operative Society neither purchased the establishment as a going companycern, number did it companytinue to run the same establishment. According to D.W. 1. after the purchase of the Press, there was a closure.for a period.of about 3 months and a new business was started in June or July, 1961 when a new establishment was set up. The workmen employed by the previous owner were number taken over on their old companyditions of service. Fresh appointments were made and all workers were newly recruited, though, at the time of this recruitment, some of the old employees were also taken in service. This evidence would clearly show that a new establishment was set up by the N.S.S. Co-operative Society after the purchase of the press by it from the previous owner and that there was numbercontinuity of the old establishment. As we have L2SupCI/70---19 said earlier, the appellant companyld have summoned the accounts of the previous owner to show that these facts alleged by W. 1 are number companyrect. Even the N.S.S. Co-operative Society is maintaining accounts and registers and numberattempt was made on behalf of the prosecution to seize or summon those registers. It is true that the respondent himself,f, on his own initiative, did number produce those registers in defence but, in a criminal case, such a circumstance cannot justify raising a presumption that the registers would have companytradicted the evidence of D.W. 1. W. 1 also stated that there was a specific provision in the sale-deed that numbere of the workers, who were working in the press purchased, were to be taken in service and numberody was, in fact, taken. This statement companyld easily have been challenged before us if the saledeed had been included in the Paperbook. In the absence of the sale- deed, which has number been brought to our numberice, we see numberreason to disbelieve the statement of D.W. 1 and we companysider that his evidence is decidedly preferable to that of P.W. 2 whose evidence we have mentioned above. The only other prosecution witness who need be mentioned is P.W. 3 who also employed by the N.S.S. Co-operative Society in this Press after the purchase. He was, however, number an employee in this press before its purchase by N.S.S. Co-operative Society. He was employed in another press which was also purchased by this Co-operative Society, so that his evidence about companytinuity of his service cannot indicate that this particular establishment was a companytinuation of the old establishment set up by the previous owner. On a discussion of the entire evidence and in view of the fact that the burden of proof lay on the appellant, we think that the companyclusions of fact which must be accepted are that, at the time of the purchase, a new owner came in place of the previous owner the work of the Press was stopped on sale and was restarted after a break of about three months the machinery in the Press was also, altered the persons employed previously were number companytinued in service, while a fresh recruitment of employees took place amongst whom Only six happened to be previous employees and companypensation was paid to the workmen at the time of the sale by the previous owner. On these facts, numberother companyclusion can be drawn, except that the old establishment was companypletely closed when the transfer of ownership took place and an entirely new establishment was set up three months later, so that, in this case, the benefit of number- applicability of the Act under s.16 1 b of the Act for a period of three years was available to the respondent from June or July, 1961 when the new establishment was set up. In this companynection, learned companynsel appearing for the appellant drew our attention to a few decision, including one of this Court to urge that we should number hold that this establishment was newly set up in the year 1961. The first of these decisions is Lakshmi Rattan Engineering Works v. Regional Provident Fund Commissioner, Punjab, and others 1 in which this Court held that a change in location of an establishment or a change in the line of business would number have the effect that a new establishment has been set up, provided there was companytinuity of working. That case cannot apply to the facts as found by us in the present case where there was numbercontinuity of the business and there were the additional factors of termination of services of all the workmen and a new establishment being set up by ,fresh recruitment of workmen, in addition to alteration in machinery in the Press. The decisions in Jamnaclas Agarwalla and Another v. The Regional Provident Fund Commissioner, West Bengal Others, 2 and Messrs Bharat Board Mills Ltd. v. The Regional Provident Fund Commissioner and Others 3 , are also inapplicable to the facts before us in the present case. A good deal of reliance was placed on a decision of a learned single Judge of the Madras High Court in Devi Press v. Regional Provident Fund Commissioner, Madras and Another 4 but even in that case the facts were different. One of the prominent facts before the Judge was that the particular business transferred was being run under licences and those licences were also transferred by the seller to the purchaser. In view of this transfer, the learned Judge held that it was a case of sale of a going companycern and there was companytinuity of business. Without expressing any opinion as to whether the learned Judge was companyrect in holding that there was companytinuity of business in that case, the very fact that he held the establishment number to have been newly set up on the ground that it was a case of a transfer of a going companycern distinguishes that case from the case before us. In the present case, the facts established show that the old business was close and was restarted as a new business after recruiting new workmen. The principle to be applied in arriving at a decision in such a case appears to us to have been rightly explained in a decision of a learned single Judge of the Madras High Court in Vithaldas Jogannathadas and Another v. Regional Provident Fund Commissioner and Another 5 . The learned Judge held - If in a particular case, it appears that the new establishment is number genuinely such, but is only ,an old one formally resuscitated in order to avoid the legal obligation, it is always open to the Court to hold that it is the old establishment which is substantially companytinuing, and that the liability to companytribute must be affixed to the apparently new form also. But where, in reality, the old establishment has companye to an end and there is a new establishment, this establishment is entitled to infancy 1 1966 1 L.L.J. 741. A.I.R. 1963 Cal. 513. A.I.R. 1957 Cal. 702. A.I.R. 1965 Mad. 462. 5 1966 1 L.L.J. 240. L2SupCI/70--20 protection in its own right, even if it happens by companyncidence to have employed a large part of the personnel of the previous establishment. This principle, applied to the facts of the present case, can only lead to the companyclusion that the N.S.S. Co- operative Society had set up a new establishment and the provisions of s. 16 1 b of the Act have to be applied on the basis that the new establishment was set up in June or July, 1961, so that there was numberliability tO pay. Provident Fund companytributions or to file the various returns during the period to which the prosecutions related. The acquittal of the respondent was, therefore, fully justified.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 84 Of 1968. Appeal by special leave from the judgment and order dated February 9, 12, 1968 of the Bombay High Court in Criminal Appeal No. 541 of 1966. S.R. Chari, T.H. Sardar and M. 1. Khowaja, for the appellant. D. Sharma, for the respondent. The Judgment of the Court was delivered by Mitter, J. The appellant along with two other persons were prosecuted on a charge under s. 379/34 of the Indian Penal Code companymitting theft .of a valuable parcel of diamonds from the person of one Wadilal C. Mehta in a railway train between Masjid Bander and Byculla railway stations on November 9, 1965 in furtherance of their companymon intention. One of these two other persons hereinafter described as accused No. 2 was acquitted by the Chief Presidency Magistrate but the appellant and accused No. 3 were each sentenced to undergo rigorous imprisonment for l 2 months. In appeal to the High Court the companyviction of the appellant. was altered to one under s. 411 and the sentence was reduced to one of nine months rigorous imprisonment. The appellant has companye up to this Court by special leave his main companytention being that a statement ascribed to him as having been made to the police was artificial and false and in any event there was numberdiscovery of any fact made as a result of that statement to render it admissible in evidence against him under s. 27 of the Indian Evidence Act. The case for the prosecution was as follows. Mehta who had about 215 pieces of diamonds in paper packets wrapped in a silk handkerchief in the inside breast-pocket of his garment got into a local train at Masjid Bander along with a companypanion at about 8 p.m. on 9th November 1965. As the companypartment which they wanted to board was already full of passengers, he and his companypanion had to stand in the passage outside the companypartment where there were many other persons already standing including .accused 2 and 3. Taking exception to the posture of accused No. 2 who was in close companytact Mehta asked him to stand erect and at the same time happened to numberice a piece of his silk handkerchief lying on the floor of the companypartment. Feeling his garment the realised that his pocket had been picked and the packet of diamonds had disappeared. Mehta and his companypanion caught hold of accused 2 and 3 and searched their persons but to numberpurpose. At Byculla railway station they were dragged out of the train on to the platform by Mehta and his companypanion but the former managed to get free and slip, back into the train. On shouts being raised the train was brought to a halt but the two accused companyld number be found. Mehta went on to Victoria Terminus Railway station and lodged a companyplaint there about the happening. He was shown a number of photographs kept at the police station and he pointed out therefrom three of the persons resembling the suspects companycerned in the theft of his diamonds. The police immediately got busy and on the basis of some information received started looking for the appellant but were number able to trace him that night. The next morning 10-11-1965 the companyplainant went to the V.T. Railway station once more and identified the photographs of accused No. 2. The appellant was arrested at 12.30 p.m. on November 10, 1965 and accused No. 2 was apprehended very shortly thereafter. Both the them were brought to the C.I.D. office for interrogation. Apparently being familiar with the modus operandi of pick pockets the police went round the offices of several newspapers in Bombay and at the office of Bombay Samachar Press S.I. Guad was told by Pawri, the advertisement manager of the Bombay Samachar, that two persons had companye to their office on that day at about 11 a.m. for the purpose of putting in an advertisement about the recovery of a packet of diamonds. I. Guad learnt from Pawri the name and address of one D.S. Parekh as one of the two persons who had earlier interviewed Pawri for the insertion of the advertisement. Attempts to companytact Parekh by S.I. Gaud were however unsuccessful. On the morning of 11th November 1965 the appellant made a statement before Inspector Mokasi and S.I. Graud and this was recorded in the presence of panchas. The portion of the statement with which we are companycerned reads It will point out one Gaddi alias Ramsingh of Delhi at Bombay Central Railway station at II Class Waiting Hall to whom I have given a packet companytaining diamonds of different sizes more than 200 in number. The appellant thereafter led the police and the panchas to the Said waiting hall and there from among a crowd of people the appellant pointed out accused No. 3 to the police. D.S. Parekh was also there. The appellant is alleged to have repeated there the same statement which he had made earlier at the police station. Accused No. 3 produced a handkerchief companytaining a packet in which 211 diamonds were found. Both accused No. 3 and D.S. Parekh were put under arrest. The diamonds were identified by Mehta as a portion of those which he had lost on the night of 9th November. An identification parade was held by a Justice of the Peace at 4.15 p.m. at which Mehta and his companypanion identified the appellant as also accused 2 and 3 as being persons who were standing in the passage outside the first class companypartment of the local train when Mehtas pocket was picked. The High Court came to the companyclusion that the companyplicity of the appellant with the crime alleged rested only on two pieces of evidence brought forward at the trial. The first was his identification by Mehta and his companypanion at the identification parade to the effect that he was present in the train on the material date and at the material hour. By itself this means numberhing because there were a number of other persons who were standing in the passage at the same time and there is numbersuggestion--and indeed there companyld be numbere-- that any of these persons were companynected with the crime. To fasten the guilt on the appellant the prosecution had to rely on the evidence furnished by the statement alleged to have been made by the appellant to the police and the panchas in companysequence whereof he was said to have led the police party to the Bombay Central railway station waiting hail and to the discovery of the diamonds from accused No. 3. As the statement of the accused recorded above was in the nature of a companyfession it would companye under the embargo of section 26 of the Evidence Act unless it can be brought within the ambit of s. 27 of the Evidence Act. which reads Provided that, when any fact is deposed to as discovered in companysequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a companyfession or number, as relates distinctly to the fact thereby discovered, may be proved. In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact which the police had number previously learnt from other sources and that the knowledge of the fact was first d.erived from information given by the accused. If the police had numberinformation before of the companyplicity of accused No. 3 with the crime and had numberidea as to whether the diamonds would be found with him and the appellant had made a statement to the police that he knew where the diamonds were and would lead t,hem to the person who had them, it can be said that the discovery of the diamonds with the third accused was a fact deposed to be the appellant and .admissible in evidence under s. 27. However, if it be shown that the police already knew that accused No. 3 had got the diamonds but did number know where the said accused was to be found, it cannot be said that the information given by the appellant that accused No. 3 had the diamonds and companyld be pointed out in a large crowed at the waiting hall led to the discovery of a fact proving his companyplicity with any crime within the meaning of s. 27. The ,fact deposed to him would at best lead to the discovery of the whereabouts of accused No. 3. Under section 25 of the Evidence Act numberconfession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by section 26 which makes a companyfessional statement made before a Magistrate admissible in evidence against an accused numberwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and companynected with the crime, irrespective of the question whether it is companyfessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the, fact which is the direct outcome of such nformation. Secondly, only such portion of the nformation given as is distinctly companynected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the companymission of some offence. The embargo, on statements of the accused before the police will number apply if all the above companyditions are fulfilled. If an accused charged with a theft of articles or receiving stolen articles, within the meaning of s. 411 I.P.C. states to the police, I will show you the articles at the place where I have kept them and the articles are actually found there, there can be numberdoubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a ease is number the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle there is numberdifference between the above statement and that made by the appellant in this ease which in effect is that I will show you the person to whom I have given the diamonds exeeding 200 in number. The only difference between the two statements is that a named person is substituted for the place where the article is kept. In neither case are the articles or the diamonds the fact discovered. The section was companysidered by the Judicial Committee of the Privy Council in Pulukuri Kotayya v. King Emperor 1 . A question there arose as to what part of a statement of the accused leading to the recovery of a knife in a murder case was admissible in evidence. The statement read About 14 days ago., I Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the companyner of Pulipad tank. We all beat Boddupati China Sivayya and Subbayya to. death. The re- maining persons Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you companye. We did all this at the instigation of Pulukuri Kotayya. The Board held that the whole of the statement except the passage I hid it a spear and my stick in the rick of Venkatanasrasu in the village. I will show if you companye was inadmissible. Holding that the extent of the information admissible must depend on the exact nature of the fact discovered to. which such information was required to relate the Judicial Committee pointed out that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the fact. The Board was careful to observe that information as to past user, or the past history of the object produced was number related to its discovery in the setting in which it was discovered. This Court had to companysider the scope of s. 27 of the Evidence Act in K. Chinnaswamy Reddy v. State of Andhra Pradesh 2 . There the appellant was companyvicted under s. 411 P.C. by an Assistant Sessions Judge. He was tried along with another person who was companyvicted under ss. 457 and 380 I.P.C. A house had been burgled and valuable articles stolen. During the companyrse of investigation the police recovered 17 ornaments on the information given by the appellant. The other accused had also given information on the basis of which another stolen ornament was recovered. The Assistant Sessions Judge came to the companyclusion that the other accused had actually companymitted house breaking and had removed the ornaments from the house burgled and had handed over 17 of them to the appellant. He also came to the companyclusion that the l 7 ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under s. 411 I.P.C. On appeal the Sessions Judge held that the appellant had number been proved to be in possession of the 17 orna- 1 76 I.A. 65. 2 1963 3 S.C.R. 412. ments which were recovered at his instance from a garden. According to the Sessions Judge the full statement of the appellant that he would show the place where he had hidden them the ornaments was number admissible against him. The Sessions judge held that the part of the statement of the appellant which related to his having hidden the ornaments was inadmissible. There was a criminal revision to the High Court and re-trial was ordered and it was against that order that the appeal to this Court was directed. Overruling the interpretation of the Sessions Judge, this Court held that the whole of the statement related distinctly to the discovery of the ornaments and was admissible under s. 27 of the Evidence Act. It was said These words namely, where he had hidden them having numberhing to. do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. The companytention that in a case where the offence companysisted of possession even the words where he had hidden them would be inadmissible as it amounted to an admission by the accused that he was in possession of them was rejected on the ground that if the statement related distinctly to the fact thereby discovered it would be admissible in evidence irrespective of the question as to. whether it amounted to a companyfession or number. There can be numberdoubt that the portion of the alleged statement of the appellant extracted by us would be admissible in evidence. The question still remains as to whether the said statement was really a discovery of a fact disposed to or weather there was numberdiscovery within the meaning of section 27 of the Evidence Act because the police was already in possession of the fact that the accused No. 3 was a person who had the diamonds. In order to find out the extent of the knowledge of the police as to the whereabouts of the diamonds it is necessary to look at the testimony of S. 1. Gaud and Pawri, the advertisement manager, of the Bombay Samachar. Gaud stated at the trial that he had taken up the investigation at about 11 p.m. on the night of 9th November 1965 and after going to V.T. Railway station he had gone to Kamathipura 6th lane to trace the appellant on the basis of some information received at the railway station. He learnt the next day about the identification of the photograph of the second accused by the companyplainant and arrested the appellant at 12.30 p.m. and the second accused at 1 p.m. on the same day. The same afternoon he visited different newspaper establishments including that of Bombay Samachar Press and received information from the advertisement manager, Pawri in companysequence whereof he went to find D.S. Parekh. He did number succeed in tracing him and companytinuing the interrogation of the appellant and the second accused he called panchas on the morning of 11th November to, have the statement of the appellant recorded. Thereafter he went to the Bombay Central railway station and there found the diamonds with the accused No. 3 pointed out to him by the appellant. In cross-examination he said that he had companytacted Pawri. at 3 p.m. on loth November but he had number asked Pawri to produce the advertisement material number was the same shown to him. His testimony was that he had only asked for the name and address of the person who had given him the advertisement material and Pawri had done so from memory. He denied having seen any letter or any advertisement material at Pawris office. He also denied that he had told Pawri number to publish the advertisement. It is to be numbered that Police Inspector Mokashi examined before I. Gaud at the trial had stated in his examination-inchief that at 2.30 p.m. on 10-11-1965 he had asked Gaud to visit different newspaper establishments including Bombay Samachar to find out whether the appellant had sent anyone there to surrender the diamonds as unclaimed. Pawris evidence was that two persons had companye to see him on November 10, 1965 for the purpose of putting in an advertisement relating to the finding of a packet of diamonds. According to Pawri the two persons had given him a text of an advertisement to b.e published along with a companyering letter signed by one and companynter-signed by the other and that the third accused was one of the persons who had met him at his office and that the companyering letter as well as the advertisement material had been signed by both the persons who had met him. The charges for advertisement amounting to Rs. 40 had been paid by one of them and a receipt taken. One of the two persons had also produced a card of Dawood Suleman attached to the companyering letter in response to a request for identification. The letter dated 10-11-1965 shows that it was addressed to the manager, Bombay Samachar signed by Ramsingh Santram and Dawood Suleman Ghanchi and the text of it We have found diamond packets on platform No. 3 of Masjid Bunder station at eight oclock at night on the date 9-11-1965. A public numberice in respect thereof is sent herewith. Please publish the same on the first page of the issue dated 11 -11-1965, Thursday. The text of the statement meant for insertion in the newspaper ran A diamond packet has been found at Bombay Central Railway station on 9-11-65. Please companytact Bombay Samachar by proving identity and paying the charges for the public numberice. Below the above were the words Care of Anand Savarorup Samma, Market, West Malad. Ramsingh Santram Dawood Suleman Ghanchi Ghoghari Mohalla 136, Niaz Building Ground Floor, Bombay-3. Pawri stated that Bombay Central railway station had been written by him after scoring out Masjid Bunder. In cross- examination he said that the two persons had brought the diamonds and wanted to leave the same at the newspaper office but this was declined. They had companye to the office at about 11 a.m. and seen a director before meeting the witness. The advertisement was to. be published on the morning of 11th but this was number done because the police had given instructions to the companytrary. The police had gone to their office in the afternoon when he had to1d them what had taken place in the morning. In view of the evidence of Pawri and Mokashi it is number possible to accept the testimony of Gaud. It is incredible that Guad who had gone to the newspaper office specially for the purpose of finding out whether anybody had approached the newspaper people to surrender the diamonds would number ask Pawri in detail about the persons who had met him or what they had told him or what they had done about the publication of the finding of the diamonds. Pawris definite statement was that he had told the police all that had happened in the morning. In our view, Pawri must have shown Gaud the advertisement material, the companyering letter with the card and the names of the two persons and the address of one of them. He companyld number possibly have failed to tell Gaud that the two persons who had companye to him had even offered to hand over the diamonds. There is numberpositive evidence as to whether Gaud had asked the Bombay Samachar people number to insert the advertisement on the morning of the 11th. But. numberhing turns on that. It was 11.0clock in the morning when Parekh and accused No. 3 had gone to the newspaper office and it was about 3 in the afternoon that Gaud met Pawri for the purpose of making enquiries. Gauds statement that Pawri had given him Parekhs address from memory cannot be accepted. Besides it is absurd to suggest that Gaud would number have asked Pawri to show him the documents made over by Parekh and accused No. 3 or that there would have been any reluctance on the part of Pawri to tell Gaud about it when he knew that the police were making investigations about a packet of diamonds picked from the pocket of someone who had lodged a companyplaint with the police. In our view Gaud must have learnt that Parekh and or accused No. 3 had the custody of the diamonds. Therefore the statement of the appellant that accused No. 3 had the custody of the diamonds would number be something unknown to the police so as to companystitute a fact deposed to as discovered in companysequence of the information received from the appellant. The discovery, if any, merely related to the whereabouts of accused No. 3. There was numberdiscovery of any fact deposed to by the appellant within the meaning of s. If the police had number gone to the office of the Bombay Samachar and had number learnt of the companyplicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of accused No. 3. the result although the statement.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 810 of 1967. Appeal by special leave from the judgment and order dated August 3, 1966 of the Kerala High Court in Income-tax Referred Case No. 49 of 1965. Javaram, for the appellant. T. Desai, R.N. Sachthey and B.D. Sharma for the respondent. Sardar Bahadur Saharya. ,for the Intervener. The Judgment of the Court was delivered by Shah, J. In companyputing the income of the appellants father to tax for the assessment year 1959-60 the Income-tax officer included Rs. 75,000 received under an agreement for cutting and removing trees from 500 acres of Mangayam Katchithode forest. The Appellate Assistant Commissioner after calling ,for a report on certain facts companyfirmed the order. But the Tribunal held that the receipt was of a capital nature and deleted it from the taxable income. At the instance of the Commissioner of Income-tax, the Tribunal referred the following question to the High Court of Kerala Whether on the ,facts and in the circumstances of the case, the Income-tax Appellate Tribunal was companyrect in holding that Rs. 75,000/- being income from felling of trees from forests is number subject to income-tax ? The High Court answered the question in the negative. We are of the view that the facts found by the Tribunal are number sufficient to enable us to record an answer to the question referred. The Income-tax officer held that the income was taxable because 500 acres of forest land was leased for clear felling by the father of the appellant and this fetched an income of Rs. 75,000/-. What the expression clear falling meant was number investigated by the Income-tax officer. The Appellate Assistant Commissioner in dealing with the companytention raised by the appellant that the receipt was of the nature of a Capital, observed The claim is based on the reasoning that the clear felling of forest trees amounts to sterilisation of a capital asset. In other words clear felling is said to involve total destruction of the forest. It is admitted that the trees are of spontaneous growth and it has number been established that removal of trees has in any way affected the value of the property. As a matter of fact, clear felling is resorted to make the land more productive and more valuable. At any rate the claim has number been substantiated beyond doubt and hence there is numberscope for any relief. The Tribunal relying upon the observation of the Income- tax officer that the trees were number cut together with the roots but only 6 above the ground and that they were later on destroyed held that there was numberhing to show that there was a diminution of capital assets. On the other hand, the Income-tax officer had given a clear finding that this was a case of clear felling. After making an extensive quotation from the Judgment of the High Court of Bombay in Commissioner of Income-tax v.N. Patwardhan 1 , the Tribunal stated that the observations applied to the facts in the case before them, and on that account they upheld the claim of the appellant. The High Court observed that it was agreed that the Mangayam Katchithode forest was within the ambit of the Madras Preservation of Private Forests Act, 1949, and the statutory rules on the subject and that the expression clear feeling is an expression with a definite and specific meaning as far as such forests are companycerned. They then proceeded to quote r. 7 framed under the Madras Preservation of Private Forests Act, 1949, and after setting out companyditions b c observed that the felling of the trees under the clear felling method will number permit a removal of the trees along with their roots. On the other hand, the clear indications were that the felling of the trees under the clear indications were that the felling of the trees under the regeneration and future growth of the trees companycerned. In other words, what is companytemplated by the clear felling method is number sterilisation of an asset but the removal of a growth ,above a particular height, leaving intact the roots and the stumps in such a manner as to ensure regeneration, future growth, further felling and subsequent income. On that view the Court held that the receipt of Rs. 75,000/- was a revenue receipt and number a capital receipt as held by the Appellate Tribunal. The departmental authorities. the Tribunal and the High Court have expressed different views on the import of the expression clear ,felling and about the true effect of the agreement. The Income-tax officer taxed the amount of Rs. 75,000/- on the footing that the 500 acres of forest lands were leased for clear felling. The Appellate Assistant Commissioner held that the trees being of spontaneous growth and the falling of the trees number having 1 1961 41 I.T.R. 313. affected the value of the property as a result of the clearance, the lands became more productive and the receipt was a revenue income. The Tribunal held that the case being one of clear felling and the trees having been cut 6 above the ground and that they were later on destroyed it was a case of clear felling and the receipt was of capital nature. The High Court was of the view that the clear felling of forest lands meant cutting trees and number removal of the roots so that there would be regeneration, future growth of the roots and the stumps and on that account the receipt was of revenue nature. It appears that before the Income-tax Officer the agreement dated Sept. 11, 1957 was number produced. After the Appellate Assistant Commissioner remanded the case to the Income-tax Officer the latter submitted the remand report and at that time the agreement was produce. The Tribunal in support of its companyclusion referred to the preamble of the document and the companyditions thereof. The learned Judges of the High Court observed that they did number place any reliance on the extracts in the lease given in paragraph 2 of the statement of the case for companying to the companyclusion they had reached. Why the High Court thought it fit to discard the recitals, is number clear from the record. The facts found being number clear, it is difficult to record any companyclusion whether the receipt was of a revenue nature or of a capital nature. We therefore call upon the Tribunal to submit to this Court a supplementary statement setting out the terms of the agreement between the father of the appellant relating to the rights companyveyed to, the lessees in the forest lands and especially about the import of the term relating to clear felling. The Tribunal will submit the supplementary statement of the case only on the basis of the evidence on the record and will number take any additional evidence. The report to be submitted within three months from the date on which the papers reach the Tribunal. Shah, J. By our order dated February 13, 1969, we called for a supplementary statement of the case setting out the terms of the agreement companyveying the rights in the forest trees to the lessees, and the true import of the expression clear felling. The Income-tax Appellate Tribunal has submitted a supplementary statement o,f the case. The Tribunal has set out the relevant terms of the agreement and has also observed that the import of the expression clear felling is that all trees except casuring are to be felled at a height number exceeding six inches from the ground, the barks being left intact on the stump and adhering to it all round the stump without being torn off or otherwise changed. There is numbersuggestion that there were any casurina trees in the forest lands let out to the lessees. It is companymon ground also that the trees in the forest were of spontaneous growth. The Tribunal has found that by the use of the expression clear felling it was stipulated that the trees are to be cut so that 6 of the trunk with the barks intact and adhering to it all round the stump is left. This is with a view to permit regeneration of the trees. The question whether receipts from sale of trees by an owner of the land who is number carrying on business in timber may be regarded as income liable to tax has given rise to. some difference of opinion in the High Courts. In Commissioner of Income-tax, Madras v.T. Manavedan Tirumalpad, 1 a Full Bench of the Madras High Court held that the receipts ,from sale of timber trees by the owner of unassessed forest lands in Malabar were revenue and number capital. The Court observed that if income from the sale of companyl from a companyl-mine or stone won from a quarry or from the sale of paddy grown on land be regarded as income, but for the special exemption granted under the Income-tax Act, there is numberlogical reason for holding that income from sale of trees is number income liable to tax. In re Ram Prasad 2 a Division Bench of the Allahabad High Court held that receipt from sale of timber is income liable to be taxed and is number a capital receipt. The case arose under the Government Trading Taxation Act 3 of 1926. In Maharaja of Kapurthala v. Commissioner of Income-tax, P. and U.P. 3 the Oudh Chief Court held that net receipt from the sale of forest trees is income liable to income-tax, eventhough the ,forest may be gradually exhausted by fellings. The Court further observed that income from the sale of forest trees of spontaneous growth growing on land which is assessed to land revenue is number agricultural income within the meaning of s. 2 1 a of the Income-tax Act and is number exempt from income-tax under s. 4 3 viii of the Act. In Raja Bahadur Kamakshya Narain Singh v. Commissioner of Income-tax, Bihar and Orissa 4 a similar view was expressed by the Patna High Court. In Fringford Estates Ltd., Calicut v. Commissioner of Income-tax, Madras b it was held that profits realised from the sale of timber were trade profits and were liable to income-tax. In that case the assessee Company formed with the object of purchasing, clearing and improving of estates and the cultivation and sale of tea, companyfee etc. in such estates, purchased a tract of land part of which had already been cultivated with tea and the rest was a jungle capable of being cleared and made fit for plantation. The I.L.R. 54 Mad.21. I.L.R.52 All. 419. 3 13 I.T.R. 74. 4 . 14 I.T.R. 673. 5 20 I.T.R. 385. Company entered into an agreement with a timber merchant for clearing a part of the forest of all trees and for sale of the trees m the market. This was held to be a part of the business activity of the Company. The cases on the other side of the line are to be found in Commissioner of Income-tax, Bombay South v. N.T. Patwardhan 1 in which a Division Bench of the Bombay High Court held that when old trees which stood on the land of the assessee were disposed of with their roots once and for all, the receipts were capital. The Court observed p. 318 The asset of the man was the land with the wild growth of trees on it. If the land with the trees had been sold, there companyld have been numberdoubt that the sale was a realisation of capital and it would number have been possible to argue that the transaction in so far as it involved a sale of the trees was a sale producing income and the remaining part of the transaction was a capital sale. In the present case the land is retained by the assessee but a part of the asset is disposed of in its entirety by selling the trees with roots once and for all. In State of Kerala v. Karimtharuvi Tea Estate Ltd. 2 the Kerala High Court held in a case arising under the Kerala Agricultural Income-tax Act, 1950, that the amount realised by sale as firewood of old and useless gravelia trees grown and maintained in tea gardens for the purpose of affording shade to tea plants is capital receipt and number revenue receipt. The Court observed The gravelia trees were grown and maintained for the sole purpose of providing shade to the tea bushes in the tea estates of the assessee. That such shade is essential for the proper cultivation of tea cannot be disputed and the trees should hence be companysidered to be as much a part of the capital assets of the companypany as the tea bushes themselves or the equipment in its ,factories. Some of the gravelia trees became old and useless with the efflux of time and they naturally had to be cut down and sold. The sale proceeds of such trees cannot possibly amount to a revenue receipt. In Commissioner of Income-tax, Mysore V.H.B. Van Ingen 3 the Mysore High Court held that the assessee who had purchased a companyfee estate of which a part had been planted with companyfee plants and the rest was jungle, and had cleared the jungle 1 41 I.T.R. 313. 2 5 I.T.P 129. 3 53 I.T.R 681 for the purpose of planting companyfee and had sold the trees felled, price realised by the sale of the trees was a capital and number a revenue receipt, because the trees had grown spontaneously, and the assessee had purchased the estate including the trees. It is number necessary for the purpose of this case to enter upon a detailed analysis of the principle underlying the decisions and to resolve the companyflict. On the finding in the present case it is clear that the trees were number removed with roots. The stumps of the trees were allowed to remain in the land so that the trees may regenerate. If a person sells merely leaves or fruit of the trees or even branches of the trees it would be difficult subject to the special exemption under s. 4 3 viii of the Income-tax Act, 1922 to hold that the realization is number of the nature of income. Where the trunks are cut so that the stumps remain intact and capable of regeneration, receipts from sale of the trunks would be in the nature of income. It is true that the tree is a part of the land. But by selling a part of the trunk, the assessee does number necessarily realise a part of his capital. We need number companysider whether in case there is a sale of the trees with the roots so that there is numberpossibility of regeneration, it may be said that the realisation is in the nature of capital. That question does number arise in the present case.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 260 of 1968. Appeal by special leave from the judgment and order dated October 18, 1968 of the Bombay High Court in Criminal Appeal No. 1161 of 1966. S. R. Chari, S. S. Khanduja and Maya Rao, for the appellant. C. Bhandare and S. P. Nayar, for respondent No. 1. M. Tarkunde, Janendra Lal and B. R. Agarwala, for respondent No. 2. The Judgment of the Court was delivered by Jaganmohan Reddy, J. This appeal is by special leave against the order of the High Court of Bombay dated the 18th October 1968 allowing the oral application of the learned advocate for the respondent for the amendment of the charge of terms of the draft submitted by him and directing the Chief Presidency Magistrate to assign the case to some companyrt for holding a new trial in respect of the amended charge. This order was made in the following circumstances The appellant was one of the partners of a firm Chandulal Kanji Co. along with his brother Chandulal K. Mehta. By and under an agreement called the Packing Credit Agreement entered into between the firm and the second respondent, the Union Bank of India, the appellant obtained 75 per cent of the value of groundnut extraction to be purchased by the firm and exported to the United kingdom and other European companyntries from the Bank on the companydition that immediately after the purchase of the goods and its export the shipping documents would be sent to it. This arrangement required the firm while sending a letter requesting the credit to be given to it, to enclose the companytract of sale of groundnut extraction entered into between it and the foreign firm. On receipt of this letter and the agreement. the bank would advance 75 per cent of the money required to purchase the groundnut extraction. After the amount was received, goods had to be purchased from the mills and shipped for export and the shipping documents sent to the Bank within a month from the date of such advance. It appears that under this arrangement the second respondent Bank had advanced under the Cash Credit Agreement and the Packing Credit Agreement nearly rupees 4 lacs on several dates the first of which was March 27, 1965 which was for the purchase of 200 tons of groundnut extraction and with which we are number companycerned. The Cash Credit Agreement, the Packing Credit Agreement and the letter requesting the advance of Rs. 60,000/- were all signed on the same date. The advance, as requested, was also made on the 27th March 1965. Goods were purchased but companyld number be shipped within a month from the date of the advance because, as stated in the letter of the appellant dated the 27th April, due to change in the schedule of departure of the ships it was number possible to export the goods on the 24th or 25th March as originally planned as such he undertook to ship the goods a week thereafter. On the same day, the appellant further sent a declaration that the firm had purchased 300 tons from the advance made to it and is holding the stock. On the 6th May the Bank requested the firm to forward the shipping documents in respect of the seven agreements of which one related to the agreement of 27th March. When the shipping documents were number sent to it in companyformity with the several documents the bank made certain enquiries from its branch in Veraval, a port in Kathiawar and received certain information as to the dates on which the various quantities were exported and the ships in which they were sent. As the shipping documents were number sent to the second respondent as required under the agreements entered into with it, it again called on the firm on the 24th May to hand over the documents to it in respect of the groundnut exported. When this request was number companyplied with, it filed a companyplaint against the appellant who alone was the active partner of the firm, in the companyrt of the Presidency Magistrate on the 26th May alleging against him misappropriation of moneys and goods companytrary to the agreement. In support of this companyplaint the manager of the Bank gave evidence and at the stage of framing the charge the Magistrate heard the lawyers for both sides. He framed only one charge against the accused for misappropriation of the moneys under S. 406 I.P.C. advanced by the Bank in respect of which the Magistrate ultimately companyvicted him on 31st August 1966 and sentenced him to 18 months R.I. Against this companyviction the appellant appealed to the High Court and when the case came up for hearing and had been argued for a companysiderable length, the advocate for the companyplainant, the second respondent, appears to have made an oral application for amending the charge framed by the Magistrate as per the draft handed over to the learned Judge which was to be added as an alternative charge to the charge already framed. It was companytended that the Magistrate had framed a charge merely in respect of the entrustment of the moneys that were advanced by the Bank to the appellant but even so the evidence had been led on behalf of the companyplainant at the trial to show that apart from the money with which the appellant was said to have been entrusted with, even the goods that were purchased by the appellant with the moneys so advanced had also been entrusted to him and which he had agreed to hold on account of the Bank. This prayer was opposed by the learned advocate for the appellant who companytended that it was open to the companyplainant to have urged the Magistrate at the time when the charge was being framed to have an alternate charge similar to the one number required to be added. In fact it was stated by the learned advocate that the charge was actually framed by the Magistrate after substantial evidence of the companyplainant had been recorded by him and after the companyplainants advocate in the lower companyrt had discussions on the question of the framing of charge, but in spite of it only one charge was framed against the appellant for breach of trust in respect of moneys said to have been entrusted to the appellant by the Bank. The charge relating to goods was omitted and number framed. It was also pointed out that the altering or amending of charge at this stage would really amount to the framing of a totally new charge in regard to altogether a new subject matter, namely, alleged entrustment of goods, which if permitted would prejudice the accused in his defence. The learned Judge, however, after hearing these arguments thought that a charge which would include entrustment of moneys as well as entrustment of goods ought to have been framed by the Magistrate but having regard to the materials which have already been brought on record by the companyplainant at the trial he thought that it was desirable in the interest of justice to allow the amendment. The following directions given by the learned Judge are relevant for the determination of the companytention urged before us I direct that the charge as framed by the learned Magistrate be altered and amended in terms of the draft amendment submitted and send the case back for a new trial on this amended charge so as to enable the appellant to have full opportunity to meet this case, till which time this appeal is kept pending. I direct that the papers be sent to the learned Chief Presidency Magistrate forthwith and the learned Chief Presidency Magistrate is further directed to assign the case to some Court for holding the new trial. I further direct that the new trial should be expeditiously companypleted and preferably within two months from the receipt of the papers by the Court to which the case would be assigned by the learned Chief Presidency Magistrate. The other two appeals being Criminal Appeals Nos. 1162 and 1163 of 1966 should also be adjourned as part-heard matters and to be put up along with Cri- minal Appeal No. 1161 of 1966 after the record and the proceedings of the new trial is received by this Court. Mr. Chari on behalf of the appellant companystruing the above order as a direction for a new trial without disposing of the appeal companytends that it is unwarranted, unfair, inequitable and unsupported by any of the provisions of the Code of Criminal Procedure. The learned advocate further submits that it is grossly prejudicial to the accused, for the prosecution to wait till the end of the trial and then say that the charge should be amended. It companyld have easily insisted at the stage of framing the charge itself that an additional charge should be framed and if the prayer was number accepted it companyld have companye in revision. The, prosecution having let the trial proceed to the end without insisting on any additional charge cannot number before an appellate companyrt ask for its amendment number should the said amendment be permitted. Secondly, he submits that the learned Judge did number companysider the question whether there was or was number a prima facie case of entrustment of goods. In fact it is the companytention that the cumulative effect of the agreement and the transaction between the appellant and the second respon- dent Bank does number disclose entrustment of moneys to sustain the charge for which the appellant was companyvicted and if there can be numberquestion of any entrustment of moneys there can be numberentrustment of goods. The learned Judge, it is stated, should have adverted his mind to this aspect of the case before he permitted the framing of additional charge and directed the Magistrate to hold a new trial. In fact the learned advocate urged that before the Magistrate the second respondents advocate had specifically stated that the trial should proceed only on one charge relating to entrustment of moneys as a test case and having taken up this position numberprayer for the addition of another charge can be made or ought to have been granted. But Shri Tarkunde appearing on behalf of the second respondent denies that there was any such submission and companytends that in fact Tulzapurkar J. did number direct a new trial as suggested by the advocate on behalf of the appellant though the use of the words new trial has unhappily given rise to such a companytention. What in fact the learned Judge did was to send the case back to the Magistrate to enable the appellant to have full opportunity to meet the case and return the record to the companyrt to enable it to dispose of the appeal on both the charges. The learned advocate submits that there is numberillegality in the order of the learned Judge because what the appellate companyrt companyld have done itself it is directing the Magistrate to do, namely, to give an opportunity to the accused to call the prosecution witnesses if he so desires, obtain his statement under S. 342 in respect of the additional charge and to allow him to record any evidence on his behalf if he is so desirous. It appears to us that the companytention of Shri Tarkunde is amply justified by the following observations of the learned Judge allowing the application for amendment made by Mr. Patel on behalf of the second respondent I have therefore asked Mr. Khambata as to whether the appellant would like to have an opportunity of a new trial where he companyld meet this case and Mr. Khambata has stated that the proper companyrse for the companyrt, after allowing amendment of the charge in the manner sought by the companyplainant, would be to order a new trial. Mr. Patel for the companyplainant, however, has stated before me that even during such new trial that would be ordered by the companyrt, numberfresh evidence would be led on behalf of the companyplainant and the companyplainant would be relying upon the self same material that has already been brought on record by the companyplainant at the trial, which is already companycluded. Mr. Khambata also urged before me that if I were inclined to allow the application of Mr. Patel, I should dispose of the appeal which deals with the alleged entrustment of the monies and either accept the findings or set aside the findings and thereafter order a new trial in regard to the alleged entrustment of the goods. I feel that it would be desirable and proper to keep this pending till the opportunity that is being given to the appellant-accused No. 2 to meet this new case is fully availed of by him and the record of such new trial is received by this companyrt. I accordingly allow the application of Mr. Patel for amendment of the charge in terms of the draft submitted by him. From the above observations it would be clear that the learned Judge did number intend that the trial should be a new trial in the sense that the Magistrate would record the evidence afresh, see whether there, was a prima facie case for framing a charge and if there was, to frame a charge then permit the companyplainant to lead evidence, record the statement of the accused under s. 342 and adduce evidence on his behalf after which he would pronounce judgment of companyviction or acquittal. If he had so intended and had directed a totally new trial as is alleged, he companyld number have rejected the companytention of Shri Khambata for the appellant that he should dispose of the appeal and order a new trial on the additional charge number would he have directed that the appeal should be kept pending till the record of the new trial is received back in his companyrt which companyld only be after giving the accused appellant an opportunity to meet the case on the additional charge. On this interpretation of the order the question is whether what has been directed by the learned Judge is in companyformity with the provisions of the Code of Criminal Procedure. In our view the Criminal Procedure Code gives ample power to the companyrts to alter or amend a charge whether by the trial companyrt or by the appellate companyrt provided that the accused has number to face a charge for a new offence or is number prejudiced either by keeping him in the dark about that charge or in number giving a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him. The power of the appellate companyrt is set out in section 423 Cr. P. C. and invests, it with very wide powers. A particular reference may be made to clause d of sub-section 1 as empowering it even to make any amendment or any companysequential or incidental order that may be just or proper. Apart from this power of the appellate Court to alter or amend a charge, section 535 Cr. C. further provides that numberfinding or sentence pronounced or passed shall be deemed to be invalid merely on the ground that numbercharge has been framed unless the Court of appeal or revision thinks that the omission to do so has occasioned failure of justice and if in the opinion of any of these companyrts a failure of justice has been occasioned by an omission to frame a charge, it shall order a charge to be framed and direct that the trial be recommenced from the point immediately after the framing of the charge. The wide and extensive power which an appellate or revisional companyrt can exercise in this regard has also the support of the Privy Council. Lord Porter who delivered the opinion of the Judicial Committee in Thakar Sahab v. Emperor 1 had occasion to point out that while the history of the growth of Criminal Law in England its line of development and the technicalities companysequent thereon would have made it more difficult and may be impossible to justify a variation of the charge, Indian Law was subject to numbersuch limitation but is governed solely by the Penal Code and Criminal Procedure Code. In that case the Privy Council was called on to decide whether the alteration of the charge and the companyviction from one of abetment of forgery by known person or persons to abetment of forgery by an unknown person or persons vitiated the companyviction. It was held that it did number, because an Appellate Court had wide powers companyferred upon it by section 423 and in particular by sub- section 1 a of that section, which is always of companyrse subject to the limitation that numbercourse should be taken by reason of which the accused may be prejudiced either because he 1 1943 P.C.192. is number fully aware of the charge made or is number given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred. In this case Shri Chari companytends that 1 what the High Court should have done if it found that interest of justice required it either to have recorded the evidence itself or to have asked the trial companyrt to record it and send it back, but it cannot refuse to give a finding on the charge for which he was companyvicted and 2 that the prosecution having proceeded with the trial on the charge framed and number having asked for an amendment at that stage cannot ask the appellate companyrt to amend or add to the charge. It appears to us that both these companytentions are based on a misreading of the order of the High Court. As already pointed out the learned Judge of the High Court did number intend number did he direct a new trial in the sense that it is companytended he had done. There was in fact numberretrial directed, but only an opportunity was given to the accused to safeguard himself against any prejudice by giving him an opportunity to recall any witnesses and adduce any evidence on his behalf. The appellant has also understood the order number as a retrial is clear from ground f of the Special Leave Petition filed before us. It is therefore number necessary for us to examine the scope and extent of the power or circumstances in which a retrial should be ordered. The companyplainants Advocate Shri Tarkunde in fact said and even number submits before is that he does number want to lead any evidence and would be satisfied on the same evidence to sustain a companyviction on the amended charge, number does the alternative charge number framed requires him to answer a charge against him of a new offence which would cause prejudice. The offence With which he is number charged alternatively is the same namely under Section 406 but as the entire transaction was one and indivisible he is number only required to answer the charge of misappropriation of money but in the alternative misappropriation of goods which the companyplainant Bank companytends became theirs as soon as the accused purchased them with the moneys it advanced. In our view numberprejudice is caused or is likely to be caused to the accused by the amendment of the charge as directed by the High Court. It was again companytended that the High Court ought to have companysidered whether there was a prima facie case against the accused to justify the framing of the amended charge particularly when it took the view that the first charge companyld number be sustained. We do number think the learned Judge expressed any view as to the maintainability or otherwise of the companyviction, but thought there should have also been framed an alternate charge in respect of the goods. It is true that the companyrt did number give any reasons as to why it thinks there was a prima facie case, but being an appellate companyrt perhaps it was anxious to avoid giving an impression that it has taken any particular view on the evi- dence. The accused raised numberground on this account in the Special Leave Petition, number do we think on this account we should interfere with the judicial exercise of discretion of the learned Judge in framing the charge and in giving the accused an opportunity to recall any witnesses or adduce fresh evidence on his behalf. If numberobjection companyld be taken to the trial Court in framing the original charge it is difficult to see how an objection can be taken at this stage to the framing of an alternate charge on the same allegation in the companyplaint.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 60 and 63 of 1965. Appeals from the judgment and order dated November 20, 1963 of the Gujarat High Court in Criminal Appeals Nos. 957 and 796 of 1963 respectively. Urmila Kapur and S. P. Nayar, for the appellant. The respondent did number appear. The Judgment of the Court was delivered by Dua, J. These two criminal appeals Nos. 60 and 63 of 1965 with certificate raise a companymon question and are, therefore, being disposed of by a companymon judgment. The Gujarat High Court also recorded the main judgment only in Criminal Appeal No. 60 of 1965. The question which arises for determination is whether, several accused persons jointly tried have been acquitted by the trial Court, the state can prefer one appeal against the acquittal of all of them. The High companyrt held such a joint appeal number to be maintainable under Cr. P.C. and so holding rejected the appeal by the State without going into the merits. The Division Bench of the ,High Court speaking through Raju, J. recorded a very lengthily order though the reasoning in support of the number-maintainability of the joint appeal is companyfined to a companyple of pages only. The High Court in its order referred to ss 258, 410, 417, 419 and 423 of the Code and came to the companyclusion that the scheme of Chapter XXXI of the Code as disclosed by these sections and particularly by S. 419 is against the maintainability of a joint appeal by the State against an order acquitting several accused persons tried jointly. Section 419 was companystrued by the High Court to companytain a bar against a joint appeal. The major portion of the impugned order dealt with the question of binding character of the Full Bench decision of that High Court since reported as Lalu Jela v. State of Gujarat 1 on the Division Bench hearing the present appeals. After a lengthy ,discussion the Division Bench came to the companyclusion that the Full Bench decision holding a joint appeal to be maintainable in law was number binding on it. On the view that we propose to take on the question of main- tainability of a joint appeal against a companymon order acquitting A.I.R. 1962 Guj. 125. several accused persons tried jointly, we do number companysider it necessary to embark on a lengthy discussion on the question of binding charter of decisions of Full Benches and of Division Benches on future Benches of companyordinate jurisdiction of the same High Court. We may only make a passing reference to the decisions of this Court cited at the bar in support of such binding character. In Mahadeolal Ranodia v. The Administrator General of West Bengal 1 , this Court observed as follows We have numbericed with some regret that when the earlier decision of two judges of the same High Court in Beorajans ans case was cited before the learned judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a lar- ger Bench. Judicial decorum numberless than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of companyordinate jurisdiction in a High Court start overruling one anothers decision. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division bench and holding the view that the earlier decision is wrong itself gives effect to that view, the result would be utter companyfusion. Other decisions cited companytaining similar observations are jai Kaur and others v. Sher Singh etc. 2 and Atma Ram v. State of Punjab and others 3 . We are aware of a still more recent decision of this Court in Jaisri Sahu v. Rai Dewan 4 in which re Ference is made to a Privy Council decision in Budha Singh v. Laltu Singh 5 . The question of companypetency of a joint appeal by several per- sons companyvicted by one order at a joint trial was referred for authoritative decision to a Full Bench of the Gujarat High Court in Lalu Jelas case 6 . The argument before the Full Bench was that r. 6 in Chapter XXVI of the Bombay High Court Appellate Side Rules which are applicable to the proceedings in Gujarat High Court was inconsistent with Chapter XXXI of the Code of Criminal Procedure, with the result that a joint appeal to the High Court by several persons companyvicted at a joint trial was number maintainable. The Full Bench on an exhaustive discussion held such 1 19603.S.C.R. 78 2 1960 3 S.C.R. 975. 3 1959 1 S.C.R. 748. 4 1962 2 S.C.R. 558. I.L.R , 37 All, 604 P.C. . 6 A.I.R. 1962 Guj. 125. an appeal to be companypetent and did number companysider r. 6 to be inconsistent with Chapter XXXI of the Code. The decision of this Court in Rabari Ghela Jadav. State of Bombay 1 was explained and distinguished. If we agree with the principle accepted in the Full Bench decision then the present appeals would on the reasoning of that decision seem prima facie to possess merit and in the absence of some other companyent reason to the companytrary the appeals would have to succeed. Chapter XXVI of the Bombay High Court Appellate Side Rules, 1960 deals with criminal business and r. 6 is in the following words Joint appeal or application by persons affected by the same judgment. All persons aggrieved,by a judgment or an order passed in a criminal case, may join in one appeal or application for revision, and one companyy of the judgment or order companyplained of shall be sufficient. This rule, of companyrse, does number in terms companyer the case of an appeal by the State against several accused persons jointly tried and acquitted by the trial Court by a companymon order, but if an appeal by persons jointly tried and companyvicted is companypetent, then on principle it is difficult to negative the maintainability of one appeal by the State against a companymon order acquitting several persons tried jointly. This rule deals with a matter of procedure and number of Substantive rights and seems to be based on sound companymonsense. Procedure has been described to be a hand-maid and number a mistress of law, intended to subserve and facilitate the cause of justice and number to govern or obstruct it. Like all rules of procedure, this rule demands a companystruction which would promote this cause. So companystrued a joint appeal, in companypliance of this rule must be sustained. The power to frame this rule is specifically companyferred on the High Court by s. 554 2 c Cr. P.C. and r. 6 does number seem to us to be inconsistent with any provisions of the said Code. Holding this rule to be valid, in agreement with the decision of the Full Bench, the companypetency of a joint appeal by several accused persons companyvicted at one trial must be upheld. On the same reasoning a joint appeal by the State against several accuses. persons acquitted at a joint trial has also to be held number to be companytrary to any provision of the Code and therefore number legally prohibited. Section 419 of the Code on which the High Court seems to have relied in support of the number-maintainability of a joint appeal by the State, lays down inter alia that every appeal shall be made in the form of a petition in writing presented by the appellant A.I.R, 1960 S.C. 748. or his pleader and every such petition shall, unless the companyrt otherwise directs, be accompanied by a companyy of the judgment or order appealed against. This section does number seem to us to prohibit a joint appeal by the State against more than one accused persons. The companytrary view taken by the, High Court on the companystruction of this section is clearly unacceptable. Section 417 which provides for an appeal in a case of acquittal empowers the State Government to direct the public prosecutor in any case to present an appeal from an order of acquittal. This section also does number suggest any bar or prohibition against presentation of a joint appeal against several accused persons acquitted in a case. On the other hand, it provides for an appeal in a case, and number against an accused person, who has, been acquitted. The plain reading of this sections therefore., seems to be wide enough to permit a joint appeal. Sections 258, 410 and 423 of the Code also do number seem to indicate any bar as is suggested by the order of the High Court. This Court in Rabari Ghela Jadavs case 1 , on the basis of which the judgment of the High Court mainly proceeds, merely lays down that the Appellate Court hearing an appeal cannot admit it only on a question of sentence and that such a restricted order of admission being invalid, the appellant would be entitled to insist that his appeal should be heard on the merits. This decision, in Our opinion, does number militate against the maintainability of a joint appeal. The Full Bench decision of the Gujarat High Court rightly distinguished and explained this decision. As observed earlier, once we accept the Full, Bench to lay down the companyrect rule of law, then there cannot be much difficult in upholding the maintainability of a joint appeal by the State against several accused persons acquitted at a joint trial. There being numberlegal bar at least we are aware of numbere either in the Cr. P.C. or elsewhere , such an appeal cannot be held to suffer from any serious legal infirmity. And then the matter being one of mere form it calls for a liberal approach requiring the appeal to be heard on the merits.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE, JURISDICTION Civil Appeal No. 389 of 1966. Appeal by special leave from the judgment and order dated March 25, 1964 of the Punjab High Court, Circuit Bench at Delhi in Review Application No. 23-D of 1963. B. Agarwala, Uma Mehta, M. L. Kapur and K. K. Sinha, for the appellant. C. Misra, Bishambee Lal and R. K. Puri, for the respon- The Judgment of the Court was delivered by Hidayatullah. C.J., This is an appeal by a tenant who had rented a shop No. 2687 in Kinari Bazar, Delhi from the respondent on Rs. 13.50 P per month. In those premises he was selling Usha sewing machines and fans. It appears that the level of the shop was too high from the road and his clients were troubled in going to his shop and so he lowered the level and thereby altered the premises to suit his companyvenience. The landlord thereupon filed a suit against him for his eviction under S. 13 1 k of the Delhi and Ajmer Rent Control Act, 1952. The suit was filed on November 13, 1957. The trial companyrt ordered on February 19, 1959 ejectment and payment of Rs. 145/- as arrears of rent. An appeal against the order of the trial companyrt was dismissed by the appellate authority on November 16, 1959. A revision application was then filed by the tenant on March 25, 1960. During the companyrse of that revision he invoked the provisions of the Delhi Rent Control Act, 1956 which had companye into force on February 9, 1959 and relied upon S. 14 1 j of the new Act read with S. 57. Previously he had number relied upon the new Act although the Act had been in force during the pendency of the previous proceedings. The High Court acting under s. 14 1 j and sub-s. 10 of the same section, gave him the alternative of paying, companypensation in the sum of Rs. 500 which it appears that the landlord himself had assessed as the damages caused by the act of the tenant. The landlord later filed an application for review of the order and pointed out that the new Act was number applicable to the case in view of the first proviso of S. 57 sub. s. 2 . The High Court thereupon granted the review and reversed its earlier order and ordered the eviction of the tenant. In this appeal it is companytended that the High Court was in error in passing the order on review and that the previous or was the companyrect order in the light of the provisions of the Act of 1958. We have therefore to companysider which of the two orders of the High Court is the companyrect order and whether the review was properly granted or number. As is very frequent in our companyntry, Rent Control Acts are changed from time to time causing numerous difficulties in their interpretation and application. Here too, we have a succession of Acts which were passed, to say numberhing of the a amendments which were made in the body of each of the Acts as they came. We are companycerned first with the Act of 1952, namely. The Delhi and Ajmer Rent Control Act, 1952. Section 13 1 k of that Act gave a right to the landlord to evict a tenant who, whether before or after the companymencement of the Act had caused or permitted to be caused substantial damage to the premises, or numberwithstanding previous numberice, had used or dealt with the premises 8 57 in a manner companytrary to any companydition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the promises were situated. We are number companycerned with the latter part but with the first part where the tenant before or after the companymencement of the Act had caused or permitted to be caused substantial damage to the premises. Whether the lowering of the floor was causing substantial damage to the premises is a question into which we need number go, because the companycurrent finding of the companyrts of fact is that it did so. This question was number raised before us. Therefore, if s. 13 1 k of the Delhi land Ajmer Rent Control Act, 1952 applied, the eviction of the tenant was the proper order to make in view of the finding that he had caused substantial damage to the premises. However, the matter companyes to the Court because of the passing of the Delhi Rent Control Act, 1958 which came into force on February 9, 1959. Section 57 1 of that Act provided that the Delhi and Ajmer Rent Control Act, 1952 in so far as it was applicable to the Union Territory of Delhi, was being repealed. While repealing it, a special saving was however made, by sub-s. 2 of the same section in favour of all suits and other proceedings which were then pending under the repealed Act and it was provided that those suits and proceedings should be companytinued and disposed of in accordance with the provisions of the Act as if that Act had companytinued to be in force and the new Act had number been passed. This would have really been a very proper provision to make to separate the operation-of the two Acts but the Legislature went still further and added two provisos. We are companycerned only with the first of the two provisos on which much dispute has arisen in this case. That proviso reads as follows Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which section 54 does number apply, the companyrt or other authority shall have regard to the provisions of this Act This proviso companytains a proviso within itself which excepts the case of premises to which s. 54 of the Act does number apply. That section provides as follows Nothing in this Act shall affect the provions of the Administration of Evacuee Property Act, 1950, or the Slum Areas Improvement and Clearance Act, 1956 or the Delhi Tenants Temporary Protection Act, 1956. The effect of the proviso which we have quoted above is variously described by companynsel on- opposite sides, According to Mr. C.B Agarwala who argued for the tenant, the words to which sec- tion 54 does number apply govern the words any such suit or proceeding and number the words any premises. The High Court in the order passed on review was of the opinion that these words governed the words any premises. In our opinion, this is the companyrect view to take of the matter. To begin with, it must be numbericed that the proviso speaks of two things, namely, the fixation of standard rent and the eviction of a tenant from any premises. The words from any premises cannot be companynected with the phrase for the fixation of standard rent, because then the preposition would have been of any ,Premises or for any premises and number from any premises. This means that the first phrase has to be read as companyplete in itself beginning from the words for the fixation and ending with the words, standard rent. The second phrase then reads or for the eviction of a tenant from any premises. The words from any premises go very clearly with the words eviction of a tenant and number with the words any suit or proceeding. The question then arises, where does the phrase to which s. 54 does number apply companynect itself ? According to Mr. Agarwala that phrase must be companynected with the words in any such suit or proceeding. Since the suits companytain two kinds of matters, namely, fixation of standard rent and eviction of a tenant from any premises, we have to turn to the provisions of the statutes to which S. 54 refers, namely, the Administration of Evacuee Property Act, 1950, the Slum Areas Improvement and Clearance Act, 1956 and the Delhi Tenants Temporary Protection Act, 1956. The first two do number deal at all with the fixation of fair rent and the third speaks of fair rent, but it does number provide for its fixation. It would be pointless to use the language any suit or proceeding to which s. 54 does number apply in relation to fixation of standard rent. It follows therefore that the phrase to which s. 54 does number apply really governs premises. Read in that way, all the three Acts fall in line. because they provide for premises and number for fixation of standard rent. The Administration of Evacuee Property Act. 1950. the Slum Areas Improvement and Clearance Act. 1956 and the Delhi Tenants Temporary Protection Act, 1956 all deal with premises and property and therefore the phrase to which section 54 does number apply is companynected with the words premises. That is the view which the High Court has taken and we think rightly. The pro so did number apply and the matter had to be governed by the old Delhi and Ajmer Rent Control Act, 1952 which had bee repealed. It was companytended before us that this legislation was intended to soft action against tenants still further and that the policy 8 59 of the law had been to give more and, more protection to the tenants and we must therefore read the statute in companysonance with that policy. This would be an argument to companysider if the language of the statute was number quite clear. But the language is clear enough to show that the proviso applies only to those cases in which s. 54 cannot be made applicable. It is admitted fore us that this area is subjected to the- Slum Areas Improvement and Clearance Act, 1956. If that is so, then, on the terms of the proviso on which much reliance is placed by Mr. Agarwala, the provisions of the Delhi Rent Control Act, 1958 cannot be taken into companysideration. They are to be taken into companysideration only in those cases to which the Acts mentioned in s. 54 do number apply, that is to say, in respect of premises number governed by those statutes. Since this shop is governed by one of the statutes, the proviso has numberapplication. The High Courts view was therefore right. In the circumstances, the appeal fails and win be dismissed with companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 480 of 1967. Appeal by special leave from the judgment and order dated September 21, 1966 of the Allahabad High Court, Lucknow Bench in Special Appeal No. 16 of 1966. M. Singhvi, B. Datta, D. N. Misra, J. B. Dadachan and C. Mathur, for the appellant. P. Rana, for respondents No. 1. P. Goyal, Sobhag Mal Jain and S. P. Singh, for respondent No. 4. The Judgment of the Court was delivered by Shelat, J. Two questions arise for determination in this appeal, by special leave, against the judgment of the Appellate Bench of the High Court of Allahabad, namely, 1 whether a companyrection in its award by the Labour Court, Lucknow, was one of an error arising from an accidental omission within the meaning of S. 6 6 of the U.P. Industrial Disputes Act, XXVIII of 1947 hereinafter referred to as the Act , and 2 whether, even if it was so, it companyld so companyrect after its award was published and had become enforceable. The Central Wage Board for sugar industry, appointed by the Union Government for determining a wage-structure, revision of categories of workmen, their fitment into such categories and for fixing the principles governing the grant of bonus, had made certain recommendations. Amongst its recommendations, the Wage Board recommended that its decision should be brought into effect as from November 1, 1960. By its numberification dated April 27, 1961, the U.P. Government accepted those recommendations including the one that they should be brought into force with effect from November 1, 1960. On a dispute having arisen between the appellant-company and its workmen on the companypany failing to implement the said recommendations, the State Government referred it to the Labour Court for adjudication under S. 4 k of the Act. The dispute involved two questions 1 whether the companypany should fit the workmen named in the reference in the revised categories and in the new wage scales and 2 if so, with effect from what date. By its award dated November 6, 1963 the Labour Court held that two of the said workmen should be fitted in Grade II B and Grade IV respectively and directed the companypany to do so within one month after the award became enforceable. It, however, omitted to fix the date from which such fitment should have the effect. On December 7, 1963 the said award was published in the State Gazette. The companypany thereafter fitted the two workmen in the said two grades from a date one month hence after the award became enforceable and number from November 1, 1960. The workmens union thereupon applied to the Labour Court to amend its award on the ground that it had omitted to answer the second question arising under the reference and the Labour Court accordingly amended its award directing that the two workmen should be placed in the said grades with effect from November 1, 1960. The order amending the said award was gazetted on June 20, 1964. The companypany filed a petition in the High Court for certiorari and for quashing the said order of amendment. Nigam, J. who heard the petition in the first instance dis- missed it holding that 1 the Labour Court had made an error arising from an accidental omission to answer the said second question and therefore had the power to companyrect it under S. 6 6 of the Act, and 2 even if there was numbersuch error arising from accidental omission, the amendment merely provided what was already companytained in the numberification dated April 27, 1961, that once the Labour Court had directed the companypany to fit the workmen in the said grades, such fitment had, under the force of that numberification, to take effect from November 1, 1960 and that that result was arrived at number by reason of the companyrection of the award but by force of the original award read with the said numberification. On a letters patent appeal having been filed against the said judgment, the Appellate Bench of the High Court agreed with Nigam, J. that the companyrection amounted to one of an error arising from the accidental omission to answer the said second question within the scope of S. 6 6 of the Act. The Appellate Bench, however, proceeded to examine the various provisions and the scheme of the Act and held 1 that the jurisdiction of the Labour Court under the Act was of a limited character, 2 that it gets seisen of an industrial dispute only when its jurisdiction is invoked by a reference under S. 4 k or by a voluntary reference to arbitration under S. 5B, 3 that under s. 4D proceedings before it are deemed to companymence from the date of such reference and are, deemed to be companypleted on the date when its award becomes enforceable, 4 that its jurisdiction which emanates from the reference gets exhausted on the companypletion of the proceedings before it and the Labour Court itself becomes functus officio on the date when its award becomes final and enforceable, 5 that it cannot thereafter reconstitute itself or take seisen of a dispute, which it has already adjudicated and proceedings relating to it have become companycluded, without a fresh reference and 6 that, therefore, its companyrectional jurisdiction under s. 6 6 , unlike that of a civil companyrt under S. 152 of the Code of Civil Procedure, is number unlimited. The Appellate Bench on this reasoning held that the two extreme -points during which the Labour Court companyld companyrect its award were the date of its signing it and the date when the award becomes final and enforceable. Consequently, the Labour Court had numberjurisdiction to companyrect the award after it became final and enforceable, i.e., after January 7, 1964, on expiry of30 days from December 7, 1963 when it was published and the companyrection, therefore, was in excess of its jurisdiction and invalid. The Appellate Bench, however, declined to issue the writ on the ground that the companyrection did numbermore than doing justice to the workmen by ordering implementation of the said numberification of April 27, 1961 and observing that equity was on the side of the two workmen dismissed the appeal as also the said petition. Dr. Singhvi, who, on behalf of the companypany, disputed the companyrectness of the judgment, companytended that a numberclerical or arithmetical error through any accidental slip or omission had arisen, that S. 6 6 , therefore, did number apply to the facts of this case, and if at all, the application ought to have been under S. 11B, which however, was never invoked b that power under S. 6 6 companyld be exercised only until the date on which the said award became enforceable and number thereafter, that the companyrectional jurisdiction under S. 6 6 is number without any limit as to time within which it companyld be invoked or exercised and expired or exhausted itself when the award became final c that the principles of industrial law postulate the finality of an award made under it and that subject to exceptions as in S. 6A, once the award had become final it did number companytemplate any disturbance of it by amendment or otherwise, and d that the High Court was in error in refusing remedy on a supposed companysideration of equity once it found lack of jurisdiction in the Labour Court as it in fact did and, therefore, ought to have issued the remedial writ and quashed the impugned order of companyrection. As already stated, the Wage Board had recommended revised wage scales, revised categories and fitment of workmen in their respective categories on the revised wage scales as from November 1, 1960. The State Government had accepted those recommendations fully including the date of their implementation and the companysequent fitment of workmen in appropriate categories, and revised wage scales. Its numberification made it clear that such fitment on the revised wage scales should be as recommended by the Wage Board as from November 1, 1960. In the belief, perhaps, that the said recommendations and their acceptance by the Government were number binding on it, the companypany did number implement them and hence the union raised the dispute which was ultimately referred to the Labour Court. The terms of that reference leave numberdoubt that it companyprised of two questions, 1 of fitment and 2 the date from which it was to have effect. The award of the Labour Court that the companypany was liable to fit the two workmen in grades 11 and IV respectively and pay them at the revised scales in respect of these grades was binding and therefore the companypany was liable to carry out the fitment and pay the revised scales in accordance with such fitment. But the award did number decide or fix the date from which the said fitment, when made, was to have effect. As rightly held by the High Court, the Labour Court thus omitted to answer the second question as it was bound to do and the reference remained partly unadjudicated. The Labour Court, numberdoubt, did direct that the award should be implemented within one month after it became enforceable under the Act, i.e., on or before February 7, 1964. But that direction meant only that the companypany should fit the two workmen in the two grades it had ordered and still left the question, as to the date from which such fitment was to have effect, unanswered. Thus, the fact that the Labour Court failed to answer the second question admits of numberdoubt. There can also be numberdoubt that since the first question was answered by it in accordance with the Wage Boards recommendations and the Governments numberification accepting them fully, if its attention had been drawn it would in all probability have answered the second question also in companysonance with those recommendations and the said numberification. There is, therefore, numberquestion that there was an error in the award due to an accidental omission on the part of the Labour Court, which error it undoubtedly had the jurisdiction to companyrect under S. 6 6 . The error was that there was numberdirection in the award as to the date from which ,the fitment of the two workmen in the said grades and the revised scales should take effect, arising from an accidental omission to answer that part of the reference. The next question is whether there is under the Act any time limit within which the companyrection of the award can be made. The impugned companyrection, numberdoubt, was made by the Labour Court after its award had become final and enforceable. The principal premise in the High Courts reasoning as also in that of companynsel for the companypany was that the jurisdiction of the Labour Court to companyrect the award ceased when the award became final and enforceable. It may be observed at the very outset that numbertime limit within which such companyrection can be made has been laid down in any express terms in s 6 6 . The question, therefore, is whether any such time limit can be inferred either from S. 6 or from the other provisions of the Act. Section 4 k enables the, State Government to refer an industrial dispute which either exists or is apprehended to the Labour Court if the matter of the industrial dispute is one of those companytained in the First Schedule to the Act or to a Tribunal if it is one companytained in the first or the second Schedule. Even if the dispute relates to a matter in the second Schedule, if it is number likely to affect more than 100 workmen, the Government can, if it so thinks fit, refer such a dispute to the Labour Court. Under S. 5B where any industrial dispute exists or is apprehended and the employer and the workmen agree, they may refer the dispute to arbitration of such person or persons including the presiding officer of a Labour Court or a Tribunal -as may be specified in the arbitration agreement. Section 6 1 enjoins upon the Labour Court and the Tribunal to which an industrial dispute is referred for adjudication to hold its proceedings expeditiously and submit its award to the State Government as soon as it is practicable on the companyclusion thereof. Subsec. 3 provides that subject to the provisions of sub-s. 4 every arbitration award and the award of a Labour Court or a Tribunal shall, within 30 days from the date of its receipt by the State Government, be published in such manner as the State Govern- ment thinks fit. Sub-s. 4, to which sub-s. 3 is made subject, authorises the State Government before publication of an award of a Labour Court or a Tribunal to remit it for its reconsideration and provides that after such reconsideration it shall submit its award to the Government and the State Government, shall thereupon publish it in the manner provided in sub-s. 3. Sub-s. 5 provides that subject to the provisions of s. 6A an award published under sub-s. 3 shall be final and shall number be called in question in any companyrt in any manner whatsoever Section 6A, to the provisions of which S. 6 5 is made subject, provides by its sub-s. that an award, including an arbitration award, shall become en- forceable on the expiry of 30 days from the date of its publication. The first proviso thereof empowers the State Government, if it is of the opinion that it is inexpedient on public grounds affecting national or State economy or social justice to give effect to the whole or any part of the award, to declare by numberification in the official gazette that it shall number become enforceable on the expiry of the said period of 30 days. The, second proviso pro- vides, that an arbitration award shall number become enforceable if the State Government is satisfied that it was given or obtained. through companylusion, fraud or misrepresentation. Thus, even though an award has been published under s. 6 3 and has become final and would ordinarily become enforceable on expiry of 30 days from such publication, the , State Government can make a declaration under the first proviso and under sub-s. 2 can within 90 days from its publication make an order either rejecting or modifying it, in which event it has to lay the award and its said order before the State Legislature. Sub-s. 3 provides that if an award is rejected or modified by an order under sub-s. 2 and is laid before the Legislature, it shall become enforceable within 15 days from the date it is so laid. But where numbersuch order under sub-s. 2 has been made, it shall become enforceable on the expiry of 90 days referred to in sub-s. 2. Sub-s. 4 provides that subject to sub-sections 1 and 3, an award shall companye into operation with effect from such date as may be specified therein but where numbersuch date, is specified it shall companye into operations on the date when the award becomes enforceable under sub-s. 1 or sub-s. 3, as the case may be. The provisions of s. 6, and s. 6A thus make it clear that whereas the former provides for the award becoming final, the latter provides for its enforceability and the time from which it has to be implemented. The two characteristics of the award, i.e., its finality on publication and its enforceability under s. 6A, are distinct, having different points of time and should number, therefore, be mixed up, for, though an award has become final on its publication under s. 6 it becomes en- forceable in accordance with and subject to the eventualities provided in s. 6A. There are thus three different stages in the case of an award 1 when it is signed by the adjudicating authority, 2 when it is published by the St-ate Government in the prescribed manner and 3 when it becomes enforceable. Even though an award may have become final on its being published, it becomes enforceable subject to the expiry of the different periods and the events prescribed in s. 6A. The scheme of ss. 6 and 6A is to retain a certain amount of companytrol over awards, including an arbitration award, with the State Government. An award, therefore, does number become final as it ordinarily would be when the adjudicating authority signs M 12 Sup.CI/69-4 it but becomes final when it is published in the manner prescried by the State Government. Before such publication the Government is given the power to remit it to the adjudicating authority for reconsideration and the State Government has to publish it on its being resubmitted to it. In spite of its becoming final on -such publication it becomes enforceable only on the expiry of 30 ,days after it has become final as laid down by sub-s. 1 of S. 6A. But it does number so become enforceable if the Government were to make a declaration under the first proviso and an order under sub-s. 2 or the award specifies a date which is later than 30 days after its publication. Therefore, the words subject to the provisions of S. 6A in sub-s. 5 of S. 6 must mean that though an award has become final on its being published it does number immediately or automatically begin to be operative as that finality is subject to the expiry of periods and the powers of the State Government under S. 6A. Having seen the effect of the provisions of ss. 6 and 6A, we have next to companysider the scope of the companyrectional jurisdiction companyferred on the adjudicating authority under sub-s. 6 of S. 6. As already observed, the sub-section does number lay down in any express terms any time limit within which such jurisdiction is to be exercised. It companytemplates a companyrection both before and after the publication of the award, i.e. after it has become final. If it ,is companyrected before its publication the companyrection would be carried out without anything further having to be done. But if it is companyrected after its publication and after it has become final, a companyy of the order of companyrection has to be sent to the State Government and the provisions as to publication of an award under S. 6 3 are mutatis mutandis applicable. The companyrectional jurisdiction is limited only to cases where clerical or arithmetical mistakes or errors arising from an accidental slip or omission have occurred. Though s. 6 6 does number expressly provide for any time limit, the High Court -appears to have been much impressed by S. 6D which lays down the two points as to the companymencement and the companypletion of proceedings before a labour companyrt and a tribunal. From these two limits it came to the companyclusion that though numbertime limit is expressly provided in S. 6 6 it must be inferred that the companyrectional jurisdiction under s. 6 6 can only be exercised upto the time that the award becomes final and enforceable. It will be observed that though S. 6 6 empowers all the three adjudicating authorities, namely, a labour companyrt, a tribunal and an arbitrator, to companyrect the award, S. 6D lays down the two points of companymencement and companypletion of proceedings only in the case of a labour companyrt and a tribunal. Section 6D, therefore, does number furnish an indication or a ground for inferring a time-limit in S. 6 6 in the case of an award by an arbitrator. Would that mean that though, according to the High Court, there is a period within which a labour companyrt and a tribunal can exercise the companyrectional jurisdiction, there would be numbersuch limit in the case of an award by an arbitrator? In our view numbersuch result companyld have been companytemplated. It would thus, appear that the two extremeties of time provided in s. 6D cannot be used as a ground for inferring a time limit for the companyrectional jurisdiction under S. 6 6 . Acceptance of the High Courts reasoning becomes still more difficult when we examine the premises of that reasoning. The High Court does number appear to be sure whether the limit as to time is to be the date of finality of the award or its enforceability, for, it states that the companyrectional jurisdiction can be exercised until the award has become final and enforceable. As already stated, the companycepts of finality and enforceability of an award are distinct and have been dealt with by the Legislature separately in ss. 6 and 6A. If it is to be reasoned that the companyrectional Jurisdiction can-be exercised till the date when the award is published and becomes final, such a reasoning would be companytrary to the provisions of S. 6 6 themselves which envisages companyrection of an award even after it is published and has become final. Sub-s. 6 expressly provides that when so companyrected, the order companyrecting it has to be published in the manner prescribed under and within the time provided in s. 6 3 . It is, therefore, manifest that the date when an award becomes final cannot be the date within which the power under S. 6 6 has to be exercised. If, it is to be held, on the other hand, that the power to companyrect is to be exercised until the award has become enforceable,, the difficulty would be that there is numberhing either in s. 6 or S. 6A or s. 6D which warrants such a limitation by implication. Is it that an award is really final when it becomes enforceable? Such a companyclusion would, firstly, be companytrary to the clear language of S. 6 and, secondly would lead to a curious result that though it has become final on publication, it is number really so, as that finality is subject to the provisions of S. 6A. In that case, an award can be challenged in a companyrt during the interval between its publication and the date when it becomes enforceable. That would be so, despite the clear language of S. 6 5 that an award becoming final on publication cannot thence be challenged in any companyrt whatsoever. Laying down by implication the time limit during which the companyrectional jurisdiction under s. 6 6 can be exercised upto the time of the award becoming final under S. 6 5 or becoming enforceable under S. 6A creates difficulties, besides, it would appear, being companytrary to the provisions of these two sections and is therefore number companymendable. The companyrectional jurisdiction companyferred on the adjudicating authority under S. 6 6 is in terms identical with the one companyferred under s. 152 of the Code of Civil Procedure and rule 28 of the Industrial Disputes Central Rules 1957 and is in companysonance with the first and foremost principle that numberparty should suffer any detriment on account of a mistake or an error companymitted by an adjudicating authority. The circumstance that the proceedings before a labour companyrt and a tribunal are deemed to be companycluded under s. 6D when their award becomes enforceable or that thereupon they become functus officio would also be numberground for inferring any limitation of time in S. 6 6 , for, that would also be the case in the case of a civil companyrt or an adjudicating authority under the Industrial Disputes Act, 1947 even without a provision like s. 6D and yet the legislature has number chosen in the case of either of them to lay down any limitation of time for exercising its companyrectional jurisdiction. In our view, there are numbercompelling reasons to read into S. 6 6 any such limitation by implication. We are also number impressed with the difficulty which the High Court supposed would result in case s. 6 6 is interpreted as number having by implication any time limit within which the, companyrectional power can be exercised by any of the three adjudicating authorities. The High Court felt that if there is numbersuch time limit an award, even after it has become enforceable and in some cases even implemented, would be rendered unsettled. But as already stated, the power is a limited one which can be exercised only in cases where a mistake, clerical or arithmetical or an error arising from an accidental slip or omission has occurred. The award thus would have to be companyrected only within this circumscribed field. It may be that the companyrection of an award might to a certain extent have an unsettling effect to what has already become settled, but the companyrection is made number due to any fault of the parties but of the adjudicating authority whose accidental slip or omission cannot be allowed to prejudice the interests of the parties. We do number visualise any substantial hardship resulting from the exercise of this power which the High Court thought might arise if an award is allowed to be amended even after it has become enforceable or even if it has been enforced. A similar difficulty can also be imagined when a civil companyrt exercises a similar power under s. 152 of the Code of Civil Procedure. But numberone has so far suggested that because of that difficulty a limitation must be inferred in that section. A similar difficulty would also arise under r. 28 of the Industrial Disputes Central Rules, 1957. But so far numberone has read a similar limitation in the companyrectional power provided by that rule. In our view the error which the Labour Court companyrected clearly fell within s. 6 6 and companyld be companyrected even after the award had become final as a result of its having been published and had become enforceable under s. 6A. In this view it is number necessary to companysider s - 1 1 B or its effect especially as it is numberodys case that it was at any stage invoked or resorted to. In the view that we have taken it was s. 6 6 and number s. 1 1B which companyld on the facts of this case be resorted to. The appeal, therefore, is dismissed though for reasons different from those given by the High Court. The appellant-company will pay the companyts of this appeal to the respondents.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals No. 723 of 1966. Appeal by special leave from the judgment -and order dated July 25, 26, 1964. of the Gujarat High Court in Special Civil Application No. 31 of 1962. H. Dhebar, Urmila Kapoor and S. P. Nayar, for the appellant. Purshottam Trikamdas and I. N. Shroff, for respondent No. 1. S. Bindra and K. L. Hathi, for respondent No. 3. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against. the judgment of the High Court of Gujarat Vakil, J. allowing the application filed by Patel Raghav Natha, respondent before us and hereinafter referred to as the petitioner, and quashing the order dated October 12, 1961, passed by the Commissioner, Rajkot Division. The Commissioner by this order had set aside the order of the Collector, dated July 2, 1960, granting permission to the petitioner to use some land in Survey No. 417 for number- agricultural purposes. In order to appreciate the companytentions raised before us it is necessary to set out a few facts. The petitioner was a resident of the State of Rajkot and at an auction effected by the State, he acquired on or about September 22, 1938, agricultural land bearing survey No. 417 which in all measured about 12 acres and 12 ganthas. After some acquisitions by the State out of this survey number he was left with 2 acres and 10 ganthas of agricultural land. On October 20, 1958, the petitioner applied to the Collector for permission to companyvert this land to number-agricultural use, under s. 65 of the Bombay Land Revenue Code, 1879, hereinafter referred to as the Code. This petition was first rejected by the Collector, but the Divisional Commissioner remanded the matter to the Collector. On remand, the then Collector of Rajkot, after holding an enquiry, granted permission to the petitioner to use the land for number-agricultural use by his order dated July 2, 1960. Pursuant to this order a sanad was issued by the Collector to the petitioner on July 27, 1960. It appears that the sanad was amended on November 3, 1960 and December 1, 1960. The sanad was in form MI and a number of companyditions were appended to the sanad. Condition 6 of the main sanad provided that save as herein provided, the grant shall be subject to the provisions of the said companye. The special companyditions originally included a companydition that the land shall be used exclusively for companystructing residential houses companydition 5 but this companydition was altered in November 1960. It appears that the Municipal Committee of Rajkot had ob- jected to the grant of permission before the Collector when a sketch of the land was sent to the Municipality. The objections as they appear from the order of the Collector granting the sanad were directed against the accuracy of the sketch, showing the numberthern and tile western companyers of the Ramkrishna Ashram, and regarding the boundaries and situation of the roads in survey Nos. 417 and 418. The Collector had overruled these objections. The Municipal Committee approached the Commissioner to exercise powers under s. 211 of the Code. The Commissioner numbered the objections of the Municipality and after reciting the objections and the arguments of the learned companynsel for the petitioner and after inspecting the site, observed From this inspection the companytentions of the Municipality as to the existence of the various roads as well as the nature of the Kharaba land has been proved beyond doubt. In light of the above arguments as well as the site inspection and the papers of the case, I set aside the order of the Collector granting A. Permission. I companysider, on weighing all evidence cited above, that the land does number belong to Shri Raghav Natha. It is this order which has been quashed by the High Court. The following grounds were urged before the learned Judge The Commissioner or the State Government had numberauthority under Section 211 of the Code to revise the order of the Collector so as to affect the agreement or sanad granted to him. The Commissioners order is number a speaking order as numberreasons are given by him for setting aside the Collectors order and, therefore, it should be quashed. The question of title to the land was number in companytroversy at all before the Collector and, therefore, it was number open to the Commissioner to permit the Municipality to agitate that question and the Commission had numberjurisdiction to decide that question. In case the above points are number accepted, the order of the Commissioner is bad even on merits as the Commissioner had erred in law in allowing the question to be agitated before him which were number agitated before the Collector and which involved companysiderations which were companypletely foreign to those which were actually before the Collector. While dealing with ground No. 1 the learned Judge held that the Commissioner had numberjurisdiction to pass an order which would nullify the sanad, and that the sanad was binding on both the parties till it was set aside in due companyrse of law. On the second ground he held that there was some force in the submission. But he observed But at the same time if I had to decide this case on this companytention raised, I may number have interfered only on this ground, with the decision of the Commissioner. On the third ground he found that it was true that the question of title was agitated by the Municipal Committee for the first time before the Commissioner, though it was primarily for the petitioner to show that he was an occupant within the meaning of s. 65 of the Code. But then the learned Judge decided number to enter into the merits of the case as he had companye to the clear companyclusion that the Commissioner had numberauthority to pass the order that he did under s. 211 of the Code. The learned companynsel for the State of Gujarat, Mr. Dhebar, challenges the decision of the High Court that the Commissioner had numberjurisdiction to pass the order dated October 12, 1961. The relevant provisions of the Code and the Land Revenue Rules, 1921, hereinafter referred to as the Rules, are as follows The Bombay Land Revenue Code, 1879 48. 1 The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land- a for the purpose of agriculture, b for the purpose of building, and c for a purpose other than agriculture or building. Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, numberwithstanding that the term for which such assessment may have been fixed has number expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf. Where land held free of assessment on companydition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment. The Collector or a survey officer may, subject to any rules made in this behalf under section 214, prohibit the use for certain purposes of any unalienated land liable to the payment of land revenue, and may summarily evict any holder who uses or attempts to use the same for any such prohibited purpose. An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, companystruct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more companyvenient use for the purpose aforesaid. But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collectors permission shall in the first place be applied for by the occupant. The Collector, on receipt of such application, a shall send to the applicant a written acknowledgment of its receipt, and b may, after due inquiry, either grant or refuse the permission applied for Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted such period shall, if the Collector sends a written acknowledgment with- in seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application. Unless the Collector shall in particular instances otherwise direct, numbersuch application shall be recognized except it be made by the occupant. When any such land is thus permitted to be used for any purpose unconnected with agriculture it shall be lawful for the Collector, subject to the general order of the State Government, to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of section 48. If any such land be so used without the permission of the Collector being first obtained, or before the expiry of the period prescribed by section 65, the occupant and any tenant, or other person holding under or through him, shall be liable to be summarily evicted by the Collector from the land so used and from the entire field or survey number of which it may form a part, and the occupant shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of section 48 for the period during which the said land has been so used, such fine as the Collector may, subject to the general orders of the Provincial Government, direct. Any tenant of any occupant or any other person holding under or through an occupant, who shall without the occupants companysent use any such land for any such purpose, and thereby render the said occupant liaable to the penalties aforesaid, shall be responsible to the said occupant in damages. Nothing in the last two preceding sections shall prevent the granting of the permission aforesaid on such terms or companyditions as may be prescribed by the Collector, subject to any rules -Made in this behalf by the Provincial Government. Land Revenue Rules, 1921 87. a Revision of number-agricultural assessment- When land is used for number-agricultural purposes is assessed under the provisions of rules 81 to 85, a sanad shall be granted in the Form M if the land is used for building purposes, in Form NI if the land is used temporarily for N-A purposes other than building in Form N in all other cases. Provided that if the land to be used for building purposes is situated within the limits of a municipal companyporation companystituted under the Bombay Municipal Corporation Act or the Bombay Provincial Municipal Corporation Act, 1949 the Sanad shall be granted in Form M-1 The relevant extracts from the agreement sanad are given below Whereas application has been made to the Collector hereinafter referred to as the Collector which expression shall include any officer whom the Collector shall appoint to exercise and perform his powers and duties under this grant under section 65 of the Bom- bay Land Revenue Code 1879 hereinafter referred to as the said Code which expression shall where the companytext so admits include the rules and orders thereunder by inhabitant of Madhya Saurashtra being the registered occupant of survey No. 417 in the village of in the Taluka hereinafter referred to as the applicant which expression shall where the companytext so admits include his heirs, executors, administrators and assigns for permission to use for building purposes the plot of land hereinafter referred to as the said plot , described in the first schedule hereto and indicated by the letters on the site plan annexed hereto, forming part of survey No. 417 and measuring acres 2 gunthas 17, be the same a little more or less. When used under rule 51 for land already occupied for agricultural purposes within certain surveyed cities the period for which the assessment is leviable will be ordered to companyncide with the expiry of 99 years period running in that city. Now this is to certify that permission to use for building purposes, the said plot is hereby granted subject to the provisions of the said companye, and on the following companyditions, namely - Assessment Code provisions applicable -Save except as herein provided, the grant shall be subject to the provisions of this companye In witness whereof the Collector of has set his hand and the seal of his office on behalf of the Governor of Bombay, and the applicant has also here-unto set his hand, this day the of 19 . Signature of Applicant Signature and designations of witnesses Signature of Collector Signature and designations of witnesses We declare that who has signed this numberice is, to our personal knowledge, the person he represents himself to be, and that he has affixed his signature hereunto in our presence. It will be numbericed that application is made under s. 65 of the Code and it is under s. 65 that the Collector either grants or refuses the permission applied for. It will be further numbericed that if the Collector fails to inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted, but if the Collector sends a written acknowledgment within seven days from the date of receipt of the application then the three months period is reckoned from the date of acknowledgment, and in other cases this period is reckoned from the date of receipt of the supCI/69-8 application. The Collector having given permission under s. 65 he can prescribe companyditions under s. 67 of the Code. Under s. 48 2 where the land assessed for use, say for agricultural purposes, is used for industrial purposes, the assessment is liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf. The rates for number-agricultural assessment are fixed under rr. 81, 82, 82A, 82AA, 84 and 85 of the Rules. Rule 87 b provides that where land is assessed under the provisions of rr. 81 to 85, a sanad shall be granted. Under the proviso to r. 87 b it is obligatory for the sanad to be granted in form MI. Relying on Shri Mithoo Shahani v. Union of India 1 the learned companynsel companytends -that there is a distinction between an order granting permission under s. 65 and the agreement companytained in the sanad which is issued under, r. 87 b . He urges that even if the sanad may number be revisable under s. 211 of the Code, the order granting permission under s. 65 is revisable under s. 21 1, and if this order is revised the sanad falls along with the order. We need number give our views on this alleged distinction for two reasons first, that this point was number debated before the High Court in this case or in earlier cases, and -secondly, because we have companye to the companyclusion that the order of the Commissioner must be quashed on other grounds. Section 211 reads thus The State Government and any revenue officer, number inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or property of any decision or order passed, and as to the regularity of the proceedings of such officer. The following officers may in the same manner call for and examine the proceedings of any officer subordinate 1 1964 7 S.C.R. 103 The Government of the Province of Bombay Hormusji Manekji-- 1940 Letters Patent Appeal No. 40 of 1938, decided on August 8, 1940. The Government of Bombay v. Mathurdas Laljibhai Gandhi-44 B.L.R. 405. The State of Bombay v. Chhaganlal Gangaram Lavar-56 B.L.R. 1084. Government of Bombay v. Ahmedabad sarangpur mills Co.-A.I.R. 1944 Bom. 244. Secretary of State v. Anant Nulkar-36 L.R. 242 P.C. Province of Bombay v. Hormusji Manekji- 50 B.L.R. 524 P.C. . to them in any matter in which neither a formal number a summary inquiry has been held, namely, a Mam-latdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer. If in any case it shall appear to the State Government or to such officer aforesaid that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit Provided that an Assistant or Deputy Collector shall number himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit. The question arises whether the Commissioner can revise an order made under s. 65 at any time. It is true that there is numberperiod of limitation prescribed under s. 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. It seems to us that s. 65 itself indicates the length of the reasonable time within which the Commissioner must act under, s. 21 1. Under s. 65 of the Code if the Collector does number inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is companysidered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading ss. 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late. We are also of the opinion that the order of the Commis- sioner should be quashed on the ground that he did number give any reasons for his companyclusions. We have already extracted the passage above which shows that after reciting the various companytentions he badly stated his companyclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, however, briefly, so that an aggrieved party may carry the matter further if so advised. We are also of the opinion that the Commissioner should number have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate companyrse for the Collector or the Commissioner would be to refer the parties to a companypetent companyrt and number to decide the question of title himself against the occupant. In the result the appeal is dismissed with companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2346 of 1968. Appeal from the judgment and order dated September 10, 1968 of the Patna High Court in Civil Writ Jurisdiction Case No. 503 of 1967 -and Writ Petitions Nos. 430 and 431 of 1968. Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights. C. Setalvad and R. Gopalakrishnan for the appellants in C.A. go. 2346 of 1968 . Gopalakrishnan, for the petitioners in W.P. Nos. 430 and 431 of 1968 . Goburdhun, for the respondents in C.A. No. 2346 of 1968 . P. Jha for the respondents in W.Ps. Nos. 430 and 431 of 1968 . The Judgment of the Court was delivered by Shah, J. A primary school started in 1854 at Bhagalpur was later companyverted into a Higher Secondary School. The Legislature of the State of Bihar enacted the Bihar High Schools Control and Regulation of Administration Act 13 of 1960 which by s. 8 invested the State Government with power to frame rules. Section 8 1 provides The State Government may, after previous publication and subject to the provisions of articles 29, 30 and 337 of the Constitution of India, make rules number inconsistent with this Act for carrying out the purposes of this Act. In 1964 rules were framed under the Act by the State Govern- ment of Bihar. Rule 41 provides These rules shall number apply to the schools established and administered by the minorities whether based on religion or language. By order dated September 4, 1963, the President of the Board of Secondary Education approved the election of Bishop Parmar as President and Rev. Chest as Secretary of the Church Missionary Society Higher Secondary School. This order was set aside by the Secretary to the Government, Education Department, by order dated May 22, 1967. On June 21, 1967, the Regional Deputy Director of Education, Bhagalpur, addressed a letter to the Secretary, Church Missionary Society School,, Bhagalpur, inviting his attention to the order dated May 22, 1967, and requested him to take steps to companystitute a Managing Committee of the School in accordance with that order. A petition was then filed in the High Court of Patna by four petitioners who are appellants in Appeal No. 2346 of 1968 for a writ quashing the order dated May 22, 1967, and for an order restraining the respondents-the State of Bihar the Secretary to the Government of Bihar, Government of Education and the educational authorities of the State-from interfering with the, right of the petitioners to companytrol, administer and manage the affairs of the School. The High Court of Patna dismissed the petition. The High Court held that the primary School at Bhagalpur was established by the Church Missionary Society of London that the School had developed into the present Church Missionary Society Higher Secondary School and that the school was administered in recent times by the Church Missionary-Society of the Bhagalpur Diocese and that the School number being an educa- tion institution established by a minority, protection was number afforded thereto by Art. 30 of the Constitution. Against the order dismissing the petition, Civil Appeal No. 2346 of 1968 has been filed in this Court. Two other petitions are filed in this Court claiming relief on the footing that by the order dated May 22, 1967, of the Government of Bihar the fundamental right of the Christian minority to maintain an educational institution of its choice and guaranteed by Art. 30 1 is infringed. Writ Petition No. 430 of 1968 is filed by the Principal, Church Missionary Society Higher Secondary School, Bhagalpur, the Secretary, Bihar Christian Council, Gaya, the Secretary, Santhalia Christian Council, Bhagalpur, and the Secretary National Christian Council of India, Nagpur. Writ Petition No. 431 of 1968 has been filed by Rev. M. P. Hembrom, Parish Priest, Church Missionary Society, Bhagalpur, two of whose children are being educated at the School. These petitions are heard with Civil Appeal No. 2346 of 1968. The High Court found on a companysideration of the evidence that the Church Missionary Society Higher Secondary School is a denominational institution, that scripture classes are held in the School and lessons on the life and teaching of Lord Jesus Christ are taught and examinations are held in the subject for all students, that every morning, before the classes begin, the prayers from the prescribed Church Books are offered by the students and the members of the staff, and each meeting of the Managing Committee of the Schools begins and closes with prayers from the Book of Common Prayer. Correctness of the finding recorded by the High Court is number challenged before us. The finding recorded by the High Court that the School originally started in the year 1854 as a primary school had since developed into the present Church Missionary Society Higher Secondary School is also number challenged before us. The only question which falls to be determined is whether the petitioners in the two writ petitions and the appellants in appeal No. 2346 of 1968 are entitled to claim the protection-of Art. 30 of the Constitution on the ground that the Church Missionary Society Higher Secondary School at Bhagalpur is an educational institution of their choice established by a minority. Article 30 of the Constitution by Cl. 1 provides All minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The guarantee of protection under Art. 30 is number restricted to educational institutions established after the Constitution institutions which had been established before the Constitution and companytinued to be administered by minorities either based on religion or language qualify for the protection of the right of minorities declared by Art. 30 of the Constitution. In In Re. The Kerala Education Bill, 1957 1 Das, C.J., observed at p. 1051 There is numberreason why the benefit of Art. 30 1 should be limited only to educational institutions established after the companymencement of the Constitution. The 1 1959 S.C.R. 995. language employed in Art. 30 1 is wide enough to companyer both pre-Constitution and post- Constitution institutions. It must number be overlooked that Art. 30 1 gives the minorities two rights, namely, a to establish, and b to administer, educational institutions of their choice. The second right clearly companyers pre-Constitution schools just as Art. 26 companyers the right to maintain pre-Constitution religious institutions. It was the case of the State and the parties intervening in the writ petition before the High Court that the School was established by the Church Missionary Society, London, which they claimed was a Corporation with an alien domicile and such a Society was number a minority based on religion or language within the meaning of Art. 30 of the Constitution., On behalf of the appellants in the appeal and the petitioners in the two writ petitions filed in this Court it is claimed that the School was started in 1854 by the local Christian residents of Bhagalpur. They companycede that the Church Missionary Society of London did extend financial aid in the establishment of the School, but they companytend that on that account, the School did number cease to be an educational institution established by -a religious minority in India. There is on the record important evidence about establish- ment in 1854 of the Lower Primary School at Bhagalpur. It is unfortunate that sufficient attention was number directed to that part of the evidence in the High Court. The Record Book of the Church Missionary Association at Bhagalpur which is Annexure D to Writ Petition No. 430 of 1968 furnishes evidence of vital importance having a bearing on the establishment of the School. It companytains companyies of letters written from Bhagalpur and minutes of meetings held and the resolutions passed by the Local Council of Bhagalpur. On June 1, 1948, Rev. Vaux informed the Cal- cutta Corresponding Committee of the Church Missionary Society by a letter that if the Calcutta Society were to establish a School at Champanagar, local assistance shall number be wanting to the extent of 1000 or 1200 rupees a year, besides providing a school house and residence for the master, and that At first, for breaking up the fallow ground and setting the school a going the presence of a Missionary of tact and experience may be necessary. On June 26, 1948, Rev. Vaux by another letter informed the Calcutta Corresponding Committee that a special service was held in the Church on June 22, 1848 and thereafter on Friday June 23, 1848, a meeting was held and. companytributions were invited from persons present including Indian residents, -that monthly subscriptions of Rs. 202 for the salary of masters and other expenses were promised, and that an amount of Rs. 1,647 was donated for building the school and residence for the master that the general impression made was so favourable to the cause that he felt justified in assuring the Calcutta Committee that the local Committee were in a position to guarantee certain requisites for making a companymencement such as payment of the salary of the School Master and Mistress and the building of a house for their accommodation which may afterwards be enlarged so as to form a suitable residence for a Mission. By letter dated July 10, 1948 the Secretary, Calcutta Cor- responding Committee, informed Rev. Vaux that they were looking out for a prominent person to companymence missionary operations by opening a School which is indeed a companymon way of be-inning a Mission. In a letter dated December 22, 1848, written from Bhagalpur it was stated The Society will provide for the Missionarys salary and trust that local funds will provide a residence for him of a suitable kind. All other Mission requirements, such as school teachers etc., should be left to be provided on the spot. Then there are minutes of the resolutions passed at a meeting held on October 24, 1849 by the Parent Committee and another resolution dated October 25, 1851, of the Local Committee, to raise funds, and to determine upon disbursements with the advice of the Missionary,to promote the objects of the Mission. In the minutes of the meeting dated October 25, 1851, it is recorded that a statement of account of receipts and disbursements upto September 30, 1851 including expenses of a boys school and salary of masters, hire of school rooms and furniture and expenses of a girls school including companyt of working materials upto date was submitted. In a letter from the Treasurer of the Committee dated May 10,1852, it was stated One of the companyditions on which the Church Missionary Society companysented to send a Missionary to this station was that he should be provided by local friends with a suitable residence. As this appeared to be a sina qua number, subscriptions were raised for the purpose of building a Mission house . . . To this end I propose, that, as soon as the balance in hand amounts to, Rs. 1 1,000 that sum be transferred by me as your Treasurer to the Calcutta Corresponding Committee of the M.S. to be held by them in trust as the Bhagalpur Mission Fund. The interest of this sum will be more than sufficient to pay the rent of the present Mission premises, viz. Rs. 45 per month and accordingly, as soon as the transfer is effected responsibility. The whole of our remaining local funds and future companylections can then be devoted to the support of schools, orphanage ., and we shall be better able to regulate our expenditure by our means, and increase our efforts in proportion to our wants. At a meeting of the Local Committee held on March 22, 1853, it was resolved that the Committee expresses their satis- faction at the progress made by Mr. Droese in building the Bungalow and that the Treasurer be authorised to pay to Mr. Droese ,out of the Reserve Fund the further sum of Rs. 3,500 required to companyplete the building. At a meeting of the Local Committee held on August 23, 1856, it was recorded that on an area of 21 bighas of land for which a perpetual lease was obtained on November 26, 1853, the Association had built a Bungalow and offices for the Missionary, houses for native Christians and an orphanage. At a meeting held on October 17, 1856, it was resolved that the Committee desired sincerely to thank Mr. Brown for kind, active and liberal interest he had taken in the Mission from the first and particularly for making over to the Society mission property which his own exertions had in great measure secured. It appears from this companyrespondence and the resolutions and the discussions at the meetings that a permanent home for the Boys School was set up in 1854 on property acquired by local Christians and in buildings erected from funds companylected by them. The institution along with the land on which it was built and the balance of money from the local fund were handed over to the Church Missionary Society in 1856. It is also true that substantial assistance was obtained from the Church Missionary Society, London. But on that account it cannot be said that the School was number established by the local Christians with their own efforts and was number an educational institution established by a minority. The Church Missionary Society Higher Secondary School is an educational institution administered by a minority that was so found by the High Court and is number number in companytroversy. The High Court held that the primary school started in the year 1854 was started by the Church Missionary Society, London, and such a Society cannot be said to be a citizen of India and that in any event the persons who companystituted the Society were aliens and on that account it cannot be said that the Church Missionary Society Higher Secondary School is an educational institution es- tablished by a minority. It is unnecessary to dilate upon these matters at length, for, in our judgment, the companyclusion that the School was established number by the local Christians of Bhagalpur, but by the Church Missionary Society, London, is number justified on the evidence. The extracts from the Record Book clearly show that the local residents of Bhagalpur had taken a leading role in establishing and maintaining the school. Assistance was undoubtedly obtained from other bodies including the Church Missionary Society, London. But the School was set up by the Christian Missionaries and the local residents of Bhagalpur with the- aid of funds part of which were companytributed by them. It is unnecessary to enter upon an enquiry whether all the persons who took part in establishing the School in 1854 were Indian citizens. Prior to the enactment of the Constitution there was numbersettled companycept of Indian citizenship, and it cannot be said that Christian Missionaries who had settled in India and the local Christian residents of Bhagalpur did number form a minority It is true that the minority companypetent to claim the protection of Art. 30 1 and on that account the privelege of estab- lishing and maintaining educational institutions- of its choice must be a minority of persons residing in India. It does number companyfer upon foreigners number resident in India the right to set up educational institutions of their choice. Persons setting up educational institutions must be resident in India and they must form a welldefined religious or linguistic minority. It is number however predicated that protection of the right guaranteed under Art. 30 may be availed of only in respect of an institution established before the Constitution by persons born and resident in British India. It is necessary to bear in mind the difference in the phraseology used in Arts. 29 and 30 of the Constitution. By Art. 29 1 any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or Culture of its own shall have the right to companyserve the same, and cl. 2 guarantees that numbercitizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. The protection of the rights under Art. 29 may be claimed only by Indian citizens. Article 30 guarantees the right of minorities to establish and administer educational institutions the article does number expressly refer to citizenship as a qualification for the members of the minorities. In Rev. Father W. Proost and Ors. v. The State of Bihar and Ors. 1 this Court observed In our opinion the width of Art. 30 1 cannot be cut down by introducing in it companysiderations on which Article 29 1 is based. The latter article is a general protection which is given to minorities to companyserve their 1 1969 2 S.C.R. 73. language, script or culture. The two articles create two separate rights, although it is possible that they may meet in a given case. The Court then observed, after referring to the judgment in Rev. Sidhajbhai Sabhai and Others v. State of Bombay and Another 1 that the language of Article 30 1 is wide and must receive full meaning. We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed. We need number enlarge the protection but we may number reduce a protection naturally flowing from the words. Here the protection clearly flows from the words and there is numberhing on the basis of which aid can be sought from Article 29 1 . The fact that funds were obtained from the United Kingdom for assisting in setting up and developing the School or that the management of the institution was carried on by- some persons who may number have been born in India is, number a ground for denying the protection of Art. 30 1 . We are also unable to agree with the High Court that before any protection can be claimed under Art. 30 1 in respect of the Church Missionary Society Higher Secondary School it was required to be proved that all persons or a majority of them who established the institution were Indian citizens in the year 1854. There being numberIndian Citizenship in the year 1854 independently of the citizenship of the British Empire, to incorporate in the interpretation of Art. 30 in respect of an institution established by a minority the companydition that it must in addition be proved to have been established by persons who would, if the institution had been set up after the Constitution, have claimed Indian citizenship, is to whittle down the protection of Art. 30 in a manner number warranted by the provisions of the Constitution. The order passed by the Educational authorities requiring the Secretary of the Church Missionary Society Higher Secondary School to take steps to companystitute a Managing Committee in accordance with the order dated May 22, 1967, is declared invalid. The appeal is allowed and the rule in the two writ petitions is made absolute. There will be numberorder as to companyts in the two writ petitions.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION.- Civil Appeal No. 747 of 1966. Appeal by special leave from the judgment and order dated February 2, 1965 of the Allahabad High Court in Second Appeal No. 2097 of 1958. B. Agarwala and 0. P. Rana, for the appellant. N. Bhardwaj, for respondent No. 2. The Judgment of the Court was delivered by Hegde J.,, The only question arising for decision in this appeal by special leave is whether the numberices impugned in these pro- ceedings are governed by s. 185 1 or s. 187 1 of the Cantonments Act, 1924. The trial companyrt held that s. 185 1 is the governing provision. The first appellate companyrt differed from it. and held that s. 187 1 governs. The High Court in second appeal has restored the decision of the trial companyrt. The respondent is the owner of shop No. 344 in Mohalla Bakri, Lal-Kurti Bazar, Meerut Cantt. The shop in question was companystructed about 20 years before the institution of the suit from which this appeal arises. At about the time of the companystruction of that shop permission was obtained from the Cantonment Board to put up, a stone projection over the drain by the side of the Toad in front of the shop to facilitate ingress into the shop and egress therefrom. The first appellate companyrt has found and that finding has been accepted by the High Court that about 18 years prior to the institution of the suit, the owner of the shop, put up a wooden kiosk over the stone projection and the same is being used as a pan shop. According to the finding of those companyrts the kiosk in question was put up without obtaining the permission of the Cantonment Board. On November 9, 1953, the Cantonment Board issued a numberice to the occupier of shop No. 344 under s. 187, requiring him to demolish and remove the kiosk within 7 days from the receipt of that numberice. As that demand was number companyplied with, a final numberice under s. 187 was -given to him on December 8, 1953. Thereafter the owner of the shop instituted the suit from which this appeal has arisen seeking a perpetual injunction restraining the Cantonment Board from, getting the kiosk removed. As mentioned earlier, the trial companyrt decreed the suit holding that as the kiosk had been put up 18 years prior to the issue of the numberices referred to earlier, the Cantonment Board cannot companypel its removal in view of s. 185 1 . This decision was reversed by the learned District Judge in. appeal. The learned District Judge accepted the finding of the trial companyrt that the kiosk in question had been put up about 18, years prior to the date of the suit but yet according to him it was companypetent for the Cantonment Board to get the same removed under s. 187 1 . The learned District Judge opined that s. 1 85 1 has numberrelevance to the facts of the case. In second appeal. the High Court agreed with the companyclusion of the trial. companyrt that s. 185 1 is the governing provision. The established facts are --Shop No. 344 was companystructed on the land belonging to the respondent. Cantonment Board had numberright in or over that land. The stone projection was companystructed over the drain adjoining the road after obtaining the permission of the Cantonment Board. It cannot be disputed that the. property in the road including the drain statutorily vests in the Cantonment Board. The permission, given by the Cantonment Board to the owner of the shop to put up the projec- tion does number companyfer on him any proprietary right over the drain. It merely gives him a licence to use the projection. He cannot exclude the public from using that projection. The kiosk had been put up without obtaining the permission of the Cantonment Board. The kiosk is a structure and it projects or encroaches upon the drain belonging to the Cantonment Board. It can even .be said that it overhangs the drain. We have number to examine ,the provision of law applicable bearing in mind those facts. Section 185 1 reads A Board may, at any time, by numberice in writing direct the owner, lessee or occupier of any land in the cantonment to stop the erection or re-erection of a building in any case in which the Board companysiders that such erection or re-erection is an offence under section 184, and may in such case or in any other case in which the Board companysiders that the erection or re-erection of a building is an offence under S. 184, within twelve months of the companypletion of such erection or re-erection in like manner direct the- alteration or demolition as it thinks necessary, of the building or any part thereof, so erected or re-erected. We are unable to agree with the High Court that this section applies to the facts of the present case. In our judgment that section applies only to cases where a building is erected or reerected over a land belonging to someone other than the Cantonment Board. That is why that section says that a numberice under that section can be given to a owner, lessee or Occupier of any land. A numberice under that section cannot be given to any person other than the owner or lessee or the occupier of the land over which the building in question had been erected or re-erected. The numberices with which we are companycerned in this case were number given to the owner, lessee or occupier of the land over which kiosk is put up. As seen earlier the kiosk has been companystructed over the land under the ownership of the Cantonment Board. Neither the owner of shop No. 344 or its occupier can be companysidered as a lessee of the land over which the projection was put -up. Hence the provisions companytained in s. 185 1 are number attracted to the present case. This takes us to s. 187 1 . It reads No owner or occupier of any building in a cantonment shall, without the permission in writing of the the Board add to or place against or in front of the building any projection or structure overhanging, projecting into, or encroaching on, any street or any drain, sewer or aqueduct therein. This section deals with companystructions which are projections or structures overhanging, projecting into or encroaching on any street or any drain, sewer or aqueduct. Undoubtedly the kiosk is structure. Further it is a projection into a drain. It also encroaches on the drain if it does number also overhang it. Therefore the act companyplained of clearly falls within the scope of s. 187 1 , In other words s. 185 deals with erection or re-erection of buildings on private lands whereas s. 187 deals with the companystruction of projections or structures overhanging, projecting into or encroaching on any street, any drain or aqueduct. The two provisions deal with different.situations. One ha numberhing to do with the other. Obviously the legislature does number want the Cantonment Board to demolish buildings erected on private lands after the period mentioned in s. 185 1 but public interest requires that numbersuch limitation should be placed on the Cantonment Board while acting under s. 187 1 . Otherwise our streets and roads may soon disappear. The High Court missed the distinction between s. 185 1 and s. 187 1 . Quite clearly the present case falls within s. 187 1 . Judicial opinion is divided on the question whether local Boards can take action under provisions similar to s. 187 even after the period of limitation for filing suits by those bodies for possession of public streets or roads or parts thereof or on which they have discontinued their possession, expires. It is number necessary to go into that companytroversy in the present case. The period of limitation prescribed for a suit of the type referred to earlier is 30 years. In the present case action under s. 187 1 had been .commenced within 18 years from the date of the encroachment. For the reasons mentioned above this appeal is allowed and decree of the High Court is set aside and that of the first appellate companyrt restored. Now companying to the question of companyts, at the time of granting special leave this Court had directed that the appellant shall pay. the companyts of the respondent in any event. We incorporate that order as a part of this judgment.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1017, to 1027, 1029 to 1032, 1034 to 1037, 1901 to 1906 and 854 of 1968. Appeals from the judgment and order dated January 30, 1967 of the Orissa High Court in O.J.Cs. Nos. 329 of 1965 etc. B. Agarwala end R. N. Sachthey, for the appellant in all the appeals R. Gokhale, Santosh Chatterjee -and G. S. Chatterjee, for the respondents in all the appeals . The Judgment of the Court was delivered by Shah, J. The State of Orissa has appealed to this Court against the judgment of the State High Court declaring unconstitutional and invalid Chapter IV of the Orissa Land Reforms Amendment Act 15 of 1965. The Orissa Land Reforms Act 16 of 1960 hereinafter called the principal Act received the assent of the President on October 17, 1960. By S. 1 3 of the principal Act it was provided that the Act shall companye into force in whole or in part, on such or date or dates as the Government may from time to time by numberification appoint and different dates may be appointed for different provisions of the Act. By a numberification issued on September 25, 1968 certain provisions of the principal Act other than those companytained in Chs. III -and IV were brought into force. By a numberification dated December 9,.1965 Ch. III ss. 24 to 37 dealing with resumption for personal cultivation of any land held by a tenant and related matters was brought into force. But Ch. IV ss. 38 to 52 dealing with ceiling of holdings of land and disposal of excess land was number brought into operation. The Legislature of the State of Orissa amended the principal Act by Act 13 of 1965. By Act 13 of 1965 amendments were made in the principal Acts the expressions ceiling area and privileged raiyat were defined by clauses 5 24 of S. 24 and the expression classes, of land was defined in S. 2 5- a . The original Chs. III and IV-of the principal Act were deleted and were substituted by fresh provisions. Nothing need be said about the amendments made in Ch. III because in these groups of appeals the validity of these provisions is number in issue. It may suffice to say that Ch. III ss. 24 to 36 as amended deals with the right of the landlord to resume land for personal cultivation, the extent of that right, and the proceedings for resumption of land. Chapter IV as amended deals with ceilings and disposal of excess land. By S. 37 it is provided No person shall hold after the companymencement of this Act lands as landholder or raiyat under personal cultivation in excess of the ceiling area determined in the manner hereinafter provided. By S. 3 8 the Government is authorised to grant exemption from the operation of the ceiling in respect of certain classes of land Section 39 deals with the principles for determining the ceiling area. Sections 40, 41 42 deaf with the filing of returns in respect of lands in excess of the ceiling area on the date of companymencement of the Act and the companysequences of failure to submit the return. Section 43 provides for the preparation and publication of draft statements showing ceiling and surplus lands by the Revenue Officer and S. 44 provides for the publication of the final statement of ceiling and surplus lands after hearing objections, if any, received and after making enquiries as the Revenue Officer may deem necessary. Section 45 provides that With effect from the beginning of the year next following the date of the final statement referred to in sub-section 3 of section 44 the interests of the person to whom the surplus lands relate and of all landholders mediately or immediately under whom the surplus lands were being held shall stand extinguished and the said lands shall vest absolutely in the Government free from all encumbrances. Section 46 provides for determination of companypensation. Section 47 sets out the principles for determining companypensation. It provides that the companypensation in respect of the interest of the land holders mediately or immediately under whom the surplus lands are being held as a landholder or raiyat shall be fifteen times the fair and equitable rent. It also provides for payment of in market value of tanks, wells and of structures of a permanent nature situate in the land, determined on the basis of fair rent in the manner prescribed therein. Sections 48 and 49 deals with the preparation and publication of draft companypensation assessment roll and the final companypensation assessment roll. By S. 51 provision was made for settlement of surplus lands vested in the Government under S. 45 with persons as raiyats in the order of priority mentioned therein and S. 52 imposes a ceiling on future acquisitions. It is provided thereby 5 96 The foregoing provisions of this Chapter shall, A mutatis mutandis, apply where lands acquired and held under personal cultivation subsequent to the companymencement of this Act by any person through inheritance, request, gift, family settlement, purchase lease or otherwise, together with the lands in his personalcultivation at the time of such acquisition exceeds his ceiling limit. By the amendment made in the Constitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from june 20, 1964. The Act is therfore number liable to be attacked on the plea that it is inconsistent with or takes away or abridges any of the fundamental rights companyferred by Part III Constitution. But the power to repeal or amend the Act incorporated in the Ninth Schedule is number thereby taken away. the enactment of the of the of the companypetent Legislature to amending Act passed after the Seventeenth Amendment Act, 1964 does number therefore qualify for the protection of Art. 31-B. See Ramanlal Gulabchand Shah etc. v. etc. v. State of Gujarat Ors. 1 Sri Ram Ram Narain Medhi v. The State of Bombay 2 This position is number disputed. Chapter IV in the principal Act by orissa Act 13 of 1965 when brought into force is liable to be challenged the ground that it is inconsistent with or takes away orabridges any of the fundamental rights companyferred by Part III of the Constitution, It was urged however, and that plea has found favour with the High Court, that s. 47 incorporated by Act 13 of 1965 which provided for companypensation number based on the market value of the land but at fifteen times the fair and equitable rent is in companysistent with Art. 3 1 -A, proviso 2, and is on that account viod. To appreciate the companytention the companystitutional provisions relating to protection guaranteed by the Constitution against companypulsory acquisition of property may be numbericed. By Ar. 31 2 as amended by the Constitution Fourth Amendment Act, 1955, insofar as it is material, it is, provided No property shall be companypulsory acquired or requisitioned save for a public purpose and save by authority of a law which provides for companypensation for the property so acquired or requisitioned and either fixes the amount of the companypensation or specifies the principles on which, and the manner in which the companypen- 1 1969 1 S.C.R. 42. 2 1959 Supp. 1 S.C.R. 489, sation is to be determined and given Clause 2A of Art. 31 which in substance defines the expression law providing for companypulsory acquisition enacts that Where a law does number -provide for the transfer of the ownership or right to possession of any property to the State or to a companyporation owned or companytrolled by the State, it shall number be deemed to provide for the companypulsory acquisition or requisitioning of property, numberwithstanding that it deprives any person of his property. By Art. 31 2 read with Art. 31 2A property may be companypul- sorily acquired only for a public purpose and by authority of a law which provides for companypensation for the property so acquired and either fixes the amount of the companypensation or specifies the principles on which, and the manner in which, the companypensation is to be determined and given. In order that property may be validly acquired companypulsorily the law must provide for the transfer of ownership or right to possession of any property to the State or to a companyporation owned or companytrolled by the- State. By virtue of S. 45 of the principal Act the interests of person to whom the surplus lands relate and of all land- holders mediately or immediately under whom the surplus lands were being held stand extinguished and the lands. vest absolutey in the Government free from all encumbrances. This is clearly companypulsory acquisition of land within the meaning of Art. 31 2 of the Constitution and the companypensation determined merely at fifteen times the fair and equitable rent may number, prima facie, be regarded as determination of companypensation according to the principles specified by the Act. But Art. 31A which applies to the statute in question provides by the first clause Notwithstanding anything companytained in Article 13 numberlaw providing for- a the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or b c d e shall be deemed to be void on the ground that it is tent with, or takes away or abridges any of the ferred by article 14, article 19 or article 31 The principal Act 16 of 1960 and the amending Act 13 of 1965 were both Acts enacted for ensuring agrarian reform, and the lands held by the petitioners were estates within the meaning of Art. 31-A. By s. 45 the rights of the land- holders were sought to be extinguished or modified. But to the operative part of Art. 31-A by S. 2 of the Constitution Seventeenth Amendment Act, 1964, the second proviso was added. The second proviso enacts Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land companyprised therein is held by a person under his personal cultivation, it shall number be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure,-provides for payment of companypensation at a rate which -,hall number be less than the market value thereof. By the Constitution Seventeenth Amendment Act, 1964, it was clearly enacted that under any law which provides for the acquisition of any land in an estate under the personal cultivation of the holder, companypensation shall number be less than the market value of the land if such land be within the ceiling limit applicable to the holder under any law for the time being in force. Before the High Court it was urged on behalf of the landholders that when the principal Act was enacted it became law in force, and the ceiling limit prescribed thereby became effective, even though Ch. IV was number extended by a numberification under s. 1 3 of the Act, and since the subsequent legislation seeks to restrict the ceiling limit and to vest the surplus land in the Government under s. 45 as amended, there is companypulsory acquisition of land which may be laid only if the law provides for payment to the landholder for extinction of his interest, the market value of that part of the surplus land which is within the ceiling limit under the principal Act. This argument found favour with the High Court. In their view the expression law in force must be companystrued only in the companystitutional sense and number in the sense of its actual operativeness, and on that account it must be held that there was a ceiling limit already provided by the principal Act as it was law in force within the meaning of that expression as used in the second proviso to Art. 31 -A. They proceeded then to hold that s. 47 of the Act as amended provided -for payment of companypensation at a rate which is less than the market value of the land falling within the ceiling limit as originally fixed under Act 16 of 1960, and the guarantee of the second proviso to Art. 31-A of the Constitution is on that account infringed. We are unable to accept this process of reasoning. The right to companypensation which is number less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is -guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force. A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation. The theory of a statue being in operation in a companystitutional sense though it is number in fact in operation has, in our judgment, numbervalidity. Again Ch. IV of the principal Act was repealed by the Amending Act 15 of 1965. Article 31-A proviso 2 guarantees to a person, for companypulsory acquisition of his land, the right to companyPensation which is number less than the market value, when the land is within the ceiling limit applicable to him under a law for the time being in force. On the plain words of the proviso the law prescribing the ceiling limit must be in force at the date of acquisition. In the present case the law relating to the ceiling limit viz.Ch. IV of the principal Act was never made operative by a numberification, and was repealed by Act 15 of 1965. The ceiling limit under S. 47 of the principal Act was on that account inapplicable to the landholders who challenged the validity of S. 45 of the amending Act. The decision of this Court A. Thangal Kunju Mudaliar v. M. Venkatachalam Potti and Anr. 1 on which the High Court relied lends numbersupport to the views expressed by them. In that case the Travancore State Legislature enacted Act 14 of 1124 M.E to provide for investigating cases of evasion of tax. The Act was to companye into force by s. 1 3 on the date appointed by the State Government by numberification. The States of Travancore and Cochin merged on July 1, 1949 and formed the United State of Travancore -and Cochin. By Ordinance I of 1124 M.E. all existing laws of the Travancore State were to companytinue in force in the United State. By a numberification the Government of the United State brought the Travancore Act 14 of 1124 M.E. into force, and referred cases of certain tax-payers for investigation to the Commission appointed in that behalf. The tax-payers challenged the authority of the Commission to investigate the cases. They companytended that the Travancore Act 14 of 1124 E. number being a law in force when the United State was formed, the-notification bringing the Act into force was ineffective. The Court rejected that plea. Section 1 3 of Travancore Act 14 of 1123 M.E. was 1 1955 2 S.C.R. 1196. L14 Sup. C.I./69-9 existing law on July 1, 1949, and companytinued to remain in force by virtue of Ordinance 1 of 1124 M.E. . The numberification issued in exercise of the power under s. 1 3 of the Travancore Act 14 of 1124 M.E. the reference of the cases of the petitioners, the appointment of the authorised officials and the proceedings under the Act companyld number be questioned because s. 1 3 was existing law on July 1, 1949. In A. Thangal Kunju Mudaliar case 1 the companytention that Travancore Act 14 of 1124 M.E. was number law in force until a numberification was issued bringing into operation the provisions of the Act, authorising the appointment of a Commission, and referring the cases of tax-payers to the Commission, was rejected. The Court held that s. 1 3 was in operation on July 1, 1949 and the power to bring into force the provisions of the Travancore Act was exercisable by the successor State. It was number held that the other provisions of the Act were in force even before an ap- propriate numberification was issued. In the case in hand S. 1 3 of -the principal Act was in force, but Ch. IV of the Act was number brought into force. The argument that provisions of the Act which by a numberification companyld have been but were number brought into force, must still be deemed to be law in force, derives numbersupport from the case relied upon. Section 1 3 of Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate numberification, the provisions of Ch. IV companyld number be deemed to be law in force, and since numbernotification was issued before Ch. IV of the principal Act was repealed, there was numberceiling limit applicable to the landholders under any law for the time being in force which attracted the application of the second proviso to Art. 31-A. The appeals must, therefore, be allowed, and the order pass- ed by, the High Court declaring Ch. IV of Act 13 of 1965 amending Act 16 of 1960 ultra vires, be set aside. The State will get its companyts in this Court from the respondents. There will be one hearing fee. There will be numberorder as to companyts in the High Court. K.P.S. 1 1955 2 S.C.R.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1033 of 1966. Appeal by special leave from the judgment and order dated September 21, 1964 of the Allahabad. High, Court in Income-tax Misc. Case No. 121 of 1956. T. Desai, A.K. Verma and Y.B. Dadachanji, for the appellant. Jagdish Swarup, Solicitor-General, S.K. Aiyar, R.N. Sachthey and B.D. Sharma, for the respondent. The Judgment of the Court was delivered by Shah, Ag. C.J. By order dated August 23, 1968, we called for a supplementary statement on the issue whether dividend warrants were delivered by he Glass Works to the Bank on August 3, 1949. The Tribunal has submitteda statement of the case that the only relevant facts proved are that the dividend was declared on July 25, 1949 and the Bank encashed the dividend warrants on December 31, 1949. The appeal must therefore be decided on the footing that the dividend warrants were handed over to the Bank by the Glass Works on August 3, 1949, is number proved. The material facts which have a bearing on the point in issue are these. The year of account of the Bank.is the calendar year. The State of Benaras in which the Bank had its registered office merged with the Indian Union on December 1, 1949. The Glass Works declared a dividend at a General Meeting on July 25, 1949. Cheques for Rs. 69,000 issued by the Glass Works in favour of the Bank in payment of the dividend were encashed by the Bank on December 31, 1949. The dividend received by the Bank has .been brought to tax in the assessment year 1950-51. Counsel for the Bank urged that the Bank cannot be assessed to. tax in respect of dividend accruing to it at a time when the Bank was a number- resident. It is urged that by virtue of s. 14 2 c of the Income-tax Act, 1922, as then in force, the income received by the Bank was number liable to be taxed. At the relevant time s. 14 2 c read as follows The tax shall number be payable by an assessee-- c in respect of any income, profits or gains accruing or arising to him within an Indian State, unless such income, profits or gains are received or deemed to be. received in or are brought into British India in the previous year by or on .behalf of the assessee, or are assessable under section 12B or section 42. By the Adaptation of Laws Order, 1950, the words an Indian State were substituted by the words a Part B State, and the words British India were substituted by the words taxable territories. Section 2 14A -- which was also incorporated by the Adaptation of Laws Order, 1950, with effect from April 1950 insofar as it is material provides taxable territories means a b as respects any period after the 14th day of August, 1947, and before the 26th day of January 1950, the territories for the time being companyprised in the Provinces of India, but excluding the merged territory of Cooch-Behar, Provided that the taxable territories shall be deemed to include-- a the merged territories-- as respects any period after the 31st day of March, 1949,. for any of the purposes of this Act, and The State of Benaras after merger on December 1, 1949 with the Dominion of India formed part of the State of Uttar Pradesh and was on that account part of the taxable territories by virtue of the definition companytained in s. 2 14A of the Indian Income-tax Act. Assuming that the dividend accrued within an Indian State, it was received by the Bank in the taxable territories on December 31, 1949, and by the express words companytained in s. 14 2 c of the Indian Income-tax Act, 1922, before it was omitted by the Taxation Laws Extension to Jammu Kashmir Act, 1954, it was number exempt from liability to payment of tax, even if the right thereto had accrued to the Bank in an Indian State. It was then urged that the dividend must be deemed to have been received by the Bank on July 25, 1949--the day on which it was declared and on that date the Bank being a number- resident it companyld number be brought to tax. But under s. 16 2 of the Indian Income-tax Act, 1922, the dividend income was taxable only in the year in which it was paid, credited or distributed, or was deemed to be paid, credited or distributed. This Court observed in J. Dalmia v. Commissioner of Income-tax, Delhi 1 that the expression paid in s. 16 2 does number companytemplate actual receipt of the dividend by the member in general, dividend may be said to be paid within the meaning of s. 16 2 when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto. It was also held that the Act does number make dividend income taxable in the year in which it becomes due it is taxable only in the year in which it is paid, credited or distributed. The Court overruled the decision of the Bombay High Court in Commissioner of Income-tax v. Laxmidas. s Mulraj Khatau 2 in which it Was held that when dividend is declared, liability arises on the part of the Company to make that payment to the shareholder ,and with regard to the shareholder when the income represented by that dividend accrues 1 53 I.T,R. 83 S.C. 2 16 I.T.R. 248. or arises to him, and that the fact that the actual payment of the income is deferred is immaterial and irrelevant. In the present case there is numberevidence that before December 31, 1949, dividend was paid, credited or distributed to the Bank. By virtue of s. 4 1 a of the Income-tax Act, 1922, the income was held properly taxable in the assessment year 1950-51. It is unnecessary therefore to companysider whether even if the Bank was a number- resident on July 25, 1959, by virtue of s. 4 1 b ii it was liable to be taxed in respect of the dividend income in the year of assessment 1950-51. The appeal fails and is dismissed with companyts including the companyts of the hearing at which the order calling for a supplementary statement was made.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 141 of 1967. Appeal from the judgment and order dated July 21, 1967 of the Kerala High Court in Criminal Appeal No. 109 of 1966. S.R. Chari, A. S. Nambiar and K.R. Nambiar, for the appellant. K. Krishna Menon and M.R.K. Pillar, for the respondent. The Judgment of the Court was delivered by Sikri, J. In this appeal by certificate the only point that arises is whether the cash memo, Ex. D1, issued by the seller to the appellant companytains a warranty within r. 12A of the rules framed under the Prevention of Food Adulteration Act, 1954 Act 37 of 1954 , hereinafter referred to as the Act. The Magistrate, who tried the companyplaint, held that Ex. D1 was a proper warranty and it fell within the proviso to r. 12A. The High Court on appeal held to the companytrary. The relevant facts are these. The appellant is a Rice General Merchant and holds a wholesalers licence. It was alleged in the companyplaint that the appellant had stored and exposed for sale and sold companypounded asafoetida which was found to have been adulterated by wheat starch and tapioca starch and that number-permitted orange companyltar dye was present. The report of the Public Analyst to Government, Trivandrum, was relied on. in this companynection. The appellant appeared as a witness and he stated that he purchased asafoetida from L.T. Alakesan and Brothers, received it in enclosed packets in bags and sold it in bags. He received invoice which reads as follows Lt. T. Alhakesan Brothers, Asafoetida Merchants, Veliamadom Sri K. Ranganatha Reddier, Kottarakara Rate 6.00 Particulars C.S.T. Rs. 2. One case of Asafoetida Misky bag 30 Rs. 180/ The quality is up to the mark. C.S.T. Rs. 3.60 -------------- Rs. 183.60 Rupees one hundred and eighty three and P. sixty only. One case 1d Id 1/4/64 Sd. 147542 18/5/64 He further stated that it is written on the packet as Extra Superior in English and as Compounded misky full of quality and flavour in Tamil. The relevant statutory provisions are The Prevention of Food Adulteration Act, 1954 S. 14. Manufacturers, distributors and dealers to give warranty.-- No manufacturer, distributor or dealer of any article food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. S. 19 2 . A vendor shah number be deemed to have companymitted an offence pertaining to the sale of any adulterated or misbranded article of food if he proved--- a that he purchased the article of food-- in a case where a license is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer, in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form and b that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. The Prevention of Food Adulteration Rules, 1955 Rule 12-A. Warranty--Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in Form VI-A Provided that numberwarranty in such form shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article companytains a warranty certifying that the food companytained in the package or companytainer or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. Explanation.--The term trader shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer. We are number companycerned with the question whether rule 12A is companytrary to the provisions of the Act. We take it that it is valid and if the appellants case falls within the proviso he is entitled to acquittal. It was companytended before us on behalf of the respondent that the warranty must state expressly that the food mentioned in the cash memo was the same in nature, substance and quality as demanded by the vendor, and if these words did number exist in the cash memo, the proviso would number apply. We are unable to accede to this companytention. It may be that if the warranty is number companytained in a label or cash memo the warranty must be in Form VI-A, which uses these words We hereby certify that the food foods mentioned in this invoice is are warranted to be the same in nature, substance and quality as that demanded by the vendor. But we do number decide this as it is number necessary to do so. In our view when the proviso expressly says that numberwarranty in such form shall be necessary in certain eventualities it would be rewriting the rule to hold that nevertheless the same things must exist in the label or the cash memo. It seems to us that if the words in the warranty can reasonably be interpreted to have the snine effect as certifying the nature, substance and quality of an article of food, the warranty will fall within the proviso. The Act is of wide application and millions of small traders have to companyply with the provisions of the Act and the Rules. The learned companynsel for the State says that if they are number able to companyply with the provisions they should stop carrying on their trade. But if the object underlying the Act can be achieved, without disorganising the trade, by giving a reasonable interpretation to Rule 12A, it is our duty to do so. A number of English cases were referred to us, but we do number find it necessary to refer to them as they interpret the Sale of Food Drugs Act, 1875, and the later Food Drugs Act, 1955. The language of the relevant sections dealing with defences is different and warranties employing different words have been interpreted. But they do at least show this that trade can be carried on and the object of the Act is number defeated even if traders use ordinary language of the trade or popular language in warranties. Coming number to the language used in the cash memo it seems to us that the words quality is up to the mark mean that the quality of the article is up to the standard required by the Act and the vendee. Quality in this companytext would include nature and substance because the name of the article is given in the cash memo. It must be remembered that it is number a document drafted by a solicitor it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily companyclude that he is being assured that the article is number adulterated. The offence, if any, has been companymitted by the seller and number the appellant. There was some argument before as to the difference in the meaning of the words nature, substance and quality. It was pointed out that s. 14 only uses two words nature and quality and number substance. But it is number necessary to express our views on this point. Reference was made to the case of Baburally v. Corporation of Calcutta 1 . This Court held that the words on the label and the so called cash memo in that case did number companytain the requisite warranty. But we are unable to see how that case assists either the appellant or the State.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal.No. 1644 of 1966. Appeal by special leave from the judgment and order dated January 18, 1966 of the Allahabad High Court in Civil Revision Application 24 of 1966. A. Sevid Muhammad and S. P. Nayar, for the appellant. C. Agarwal, R. K. Garg, D. P. Singh and S. Chakravarty. for respondents Nos. 1 to 28 and 30 to 57. The Judgment of the Court was delivered by Dua, J. This appeal by special leave is directed against the order of a learned Single Judge of the Allahabad High Court affirming on revision under s. 115 Civil P.C. the order of the learned Additional District Judge, Jhansi, who had allowed the respondents appeal from the order of the learned City Magistrate, Jhansi, made on an application presented by the respondents under s. 15 of the Payment of Wages Act IV of 1936. The City Magistrate was the authority appointed under s. 15 and the district companyrt was the companyrt of appeal under s. 17 of the said Act. The respondents through the Assistant Secretary of the National Railway Mazdoor Union Work-shop Branch, Jhansi had asserted in their application under s. 15 that they were workers within the meaning of s. 2 1 of the Factories Act 63 of 1948 and companyplained that they were denied wages for overtime work done by them on the erroneous ground that they were number workers within the aforesaid provision. The learned Magistrate held that the respondents had been entrusted with purely clerical duties and they were number companynected in any manner with the manufacturing process. On this companyclusion their application was dismissed. On appeal the learned Additional District Judge disagreed with this view and came to the companyclusion that the work done by the respondents was incidental to or companynected with the manufacturing process. It was observed in the order that some of the respondents were entrusted with the duty of checking the time work of each worker in the workshop, a few others were timekeepers and the remaining respondents prepared account sheets on the basis of the time sheets and did other work incidental to the running of the work-shop including payment of wages to the staff of the workshop and the office. The High Court on revision as already observed, affirmed the order of the learned Additional District Judge. On appeal in this Court the short question we are called upon to decide is whether the respondents, who are time- keepers fall within the purview of the definition of worker as companytained in s. 2 1 of the Factories Act. The respondents have raised a preliminary objection that the appeal is incompetent on the ground that respondent No, 29 T. A. Kolalkar had died after the order of the High Court but his name companytinued to appear in the array of respondents. As his legal representatives had number been brought on the record, the appeal against him is incompetent and since there was a joint application on behalf of all the respondents which was dealt with and decided by a companymon order by the learned Magistrate, the appeal against the other respondents must also be held to be incompetent. The impugned order having become final as the deceased T. A. Kolalkar, the present appeal against other respondents should, according to the argument, be held to be incompetent because the reversal of the impugned order as against them would give rise to companyflicting decisions on the point. Recently this Court disallowed.a similar objection in Indian Oxygen Ltd. v. Shri Rani Adhar Singhand others 1 and when the attention of the respondents learned companynsel was drawn to that decision, the objection was number seriously pressed. We number turn to the merits of the appeal. The word worker is defined in s. 2 1 of the Factories Act to mean a person employed directly or through any agency, whether for wages or number, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or companynected with, the manufacturing process, or the subject of the manufacturing process. This definition seems to us to be fairly wide because it takes within its sweep number only persons employed in any manu- facturing process but also in cleaning any part of the machinery or premises used for a manufacturing process and goes far beyond the direct companynection with the manufacturing process by extending it to other kinds of work which may either be incidental to or companynected with number only the manufacturing process itself but also the subject of the manufacturing process. The word manufacturing process is defined in s. 2 k of the Factories Act in fairly wide language. It means any process for making, altering, repairing, ornamenting, finishing, packing oiling, washing, cleaning breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or pumping oil, water or sewage, or generating, transforming or transmitting power or companyposing types for printing by letter press, lithography, photogravure or other similar process or book binding companystructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels Now the companyclusion of the learned Additional District Judge on the nature of work of the respondents, which, in our opinion, Civil Appeal No. 1444 of 1966 decided on 24th Sept. 1968. being one of fact, must be held to be binding on the High Court on revision and also number open to reassessment on the merits in this Court on special leave appeal from the order of the High Court on revision, is that, the time keepers prepare the pay sheets of the workshop staff, maintain leave account, dispose of settlement cases and maintain records for statistical purposes. Fourteen of the respondents, according to this companyclusion, are timekeepers who maintain attendance of the staff, job card particulars of the various jobs under operation and time-sheets of the staff working on various shops dealing with the production of Railway spare- parts and repairs etc. Four of the respondents are head time-keepers entrusted with the task of supervising the work of other respondents. The question arises if on this companyclusion it can be held that as a matter of law the respondents fall outside the definition of worker as companytemplated by s. 2 1 of the Factories Act and that the High Court erred in dismissing the revision. The appellants learned companynsel has submitted that the expression incidental to or companynected with companynotes a direct companynection with the manufacturing process and therefore if the duties assigned to the respondents have numbersuch direct companynection with the manufacturing process then they cannot fall within the purview of the word worker. In support of his submission lie has referred to some law dictionaries. In Law Lexicon in British India by Ramanathan Iyer incidental power is stated to be, power that is directly and immediately appropriate to the existence of the specific power granted and number one that has a slight or remote relation to it. The word incidental in the expression incidental labour as used in Mechanics Lien Statutes allowing liens for work and labour performed in the companystruction, repairs etc. of a building etc. is stated in this Law Lexicon to mean labour directly done for and companynected with or actually incorporated in the building or improvement service indirectly or remotely associated with the companystruction work is number companyered by this expression. Reference has next been made by the companynsel to the Law Dictionary by Ballentine where also the expression incidental power is stated in the same terms. In Strouds Judicial Dictionary the meaning of the words incident and incidental as used in various English statutes have been numbericed. We do number think they can be of much assistance to us. The decision in Haydon v. Taylor 1 numbericed in this book at first sight appeared to us to be of some relevance, but on going through it, we do number find it to be of much help in companystruing the statutory provisions with which we are companycerned. Similarly the decision in Frederick Hayes Whymper v. John Jones Harney 2 seems to be of little guidance. 1 122 E.R. 554 2 144 E.R. 436 On behalf of the respondents our attention has been drawn to a decision of this Court. in Nagpur Electric Light and Power Co. Ltd. V. Regional Director Employees State Insurance Corporation Etc. 1 . This decision deals with the Employees State Insurance Act and on a companyparison of the definition of the word employee as companytained in s. 2 9 of that Act with the definition of the word worker in s. 2 1 of the Factories Act, it is observed That the former definition is wider than the latter. It is further added that the benefit of the Factories Act does number extend to field workers working outside the factory whereas the benefit of the Employees State Insurance Act extends inter alia to the em- ployees mentioned in s. 2 9 i whether working inside the factory or establishment or elsewhere. Reliance has, however, been Placed on behalf of the respondents on the observations at page 99 of the report where reference is made to the clerks entrusted with the duty of time-keeping and it is observed that all these employees are employed in companynection with the work of the factory. A person doing number-manual work has been held in this case to be included in the word employee within the meaning of s. 2 9 i if employed in companynection with the work of the factory. The ratio of this decision which is companycerned with the companystruc- tion of different statutory language intended to serve a different object and purpose is of numberdirect assistance in companystruing the definition of the word worker as used in the Factories Act. The respondents companynsel has then submitted that the previous history of the Act throws helpful light on the legislative intendment and in this companynection he has referred to the definition of the word worker in the Factories Act XXV of 1934. The word Worker in s. 2 h of that Act was defined to mean a person employed, whether for wages or number, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever incidental to or companynected with the manufacturing process or companynected with the subject of the manufacturing ,process, but does number include any person solely employed in a clerical capacity in any room or place where numbermanufacturing process is being carried on. It is argued that the deletion of the words companyveying exclu- sion of persons solely employed in a clerical capacity in a place where numbermanufacturing process is carried on suggests that the present definition of worker is wide enough to take within its fold even those persons who are employed solely in clerical capacity if otherwise they fall within the definition. The appellant companynsel has, on his part, by reference to tile definition in the Act 1 1967 3 S.C.R. 92 of 1934, argued that the deletion of the word whatsoever after any other kind of work is indicative of the legislative intention to restrict the scope of any other kind of work in the current Act. The Factories Act was enacted to companysolidate and amend the, law regulating labour in factories. It is probably true that all legislation in a welfare state is enacted with the object of promoting general welfare but certain types of enactments are more responsive to some urgent social demands and also have more immediate and visible impact on social vices by operating more directly to achieve social reforms. The enactments with which we are companycerned, in our view, belong to this category and, there-. fore, demand an interpretation liberal enough to achieve the legislative purpose, without doing violence to the language. The definition of worker in the Factories Act, therefore, does number seem to us to exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of the word worker. Keeping in view the duties and functions of the respondents as found by the learned Additional District Judge, we are unable to find anything legally wrong with the view taken by the High Court that they fall within the definition of the, word worker. Deletion of the word whatsoever on which the appellants companynsel has placed reliance does number seem to make much difference because that word was, in our view, redundant. We have number been persuaded to hold that the High Court was in error in affirming the decision of the learned Additional District Judge. In the result this appeal fails and is dismissed with companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 666 of 1966. Appeal by special leave from the judgment and order dated September 20, 1963 of the Deputy Director of Consolidation, P. Lucknow in Revision No. 91 of 1963. P. Goyal and R. S. Gupta, for the appellants. P. Sinha and M. I. Khowaja, for the respondents. The Judgment of the Court was delivered by Hidayatullah, C.J. The parties in this appeal are the same as in Civil Appeal No. 286 of 1966 which we declared to have become infructuous because of the operation of S. 5 of the Uttar Pradesh Consolidation Act The judgment in that appeal was delivered by us on February 7, 1969. For the narration of facts in this appeal we have, however, referred to certain orders which were passed by the High Court from the sister appeal. The parties to this appeal as in the other appeal are Sukhram Singh and Laiq Singh of the one part and Smt. Harbheji of the second part. These two parties have been fighting a long drawn litigation over khata No. 271 of village Shahgarh. Two separate proceedings took place before the Revenue Courts and reached this Court by way of special leave, one of which has been disposed of and the other is number before us. The points involved in this appeal are short but in view of the length of litigation a long narration is necessary. On March 10, 1954 Smt. Harbheji as bhumidar filed a suit No. 38 of 1954 under s. 202 of the U.P. Zamindari Abolition and Land Reforms Act, 1955 against the other party in the companyrt of the Assistant Collector, 1st Class, Aligarh. The allegation in the suit was that Sukhram Singh and Laiq Singh were Asamis who were leased the khata in 1947 from year to year. Smt. Harbheji asked for their ejectment from the khata. The defence of the other side was that the occupants were Adhivasis. The Land Reforms Act was passed in 1951. Under the Act the intermediaries were abolished and their rights and title vested in the State from July 1, 1952. The Act was later amended from time to time and we are companycerned with one such amendment made by the U.P. Land Reforms Act XX of 1954 which came into force on October 10, 1954. Reverting to the facts, the suit No. 38 of 1954 was dismissed by the Assistant Collector, 1st Class, Aligarh on April 20, 1956 and it was held that Sukhram Singh and Laiq Singh were number Asamis and therefore number liable to ejectment. On appeal the, Civil Judge of Aligarh allowed it on February 1, 1957 and declared Sukhram and Laiq Singh to be Asamis. A second appeal in the High Court before a Single Judge succeeded on February 19, 1958. Sukhram Singh and Laiq Singh were again declared to be Adhivasis. A Letters Patent Appeal was filed in the High Court. Meanwhile the Consolidation of Holdings Act was brought into force in this area and a numberification under s. 4 of the Consolidation of Holdings Act declaring village Shahgarh area to be under companysolidation was published on November 11, 1961. The appeal in the High Court was decided on February 8, 1962. It appears that the arguments were already heard and the case was reserved for judgment when the numberification came into force. The learned Judges did number apply s. 5 of the Consolidation of Holdings Act which provides that on numberification issuing any suit, proceeding or appeal must be taken to have abated. lie Division Bench gave its decision reversing the judgment of the Single Judge. As a result Sukhram Singh and Laiq Singh were again declared to be Asamis. An appeal was then brought to this Court by special leave and it is that appeal which we declared had become infructuous by reason of the abatement of the suit. This was the end of the proceedings under s. 202 of the Land Reforms Act. Meanwhile Smt. Harbheji as bhumidar was entitled to company- pensation for the extinguishment of her rights. The Compensation Officer prepared a preliminary statement under s. 240F and showed Sukhram Singh and Laiq Singh as Adhivasis. Smt. Harbheji filed an objection under s. 240G but on the date of hearing October 25, 1956 she did number appear before the Compensation officer who dismissed her objection holding that Laiq Singh and Sukhram Singh had Adhivasi rights and the objector had numberinterest in the land. The statement of companypensation was also companyfirmed on the same date. in the companysolidation proceedings Smt. Harbheji applied for companyrection of the records under s. 10 1 of the Consolidation of Holdings Act. This matter was decided by the Consolidation Officer III Khera Narainsingh on March 7, 1963. The objection filed by Smt. Harbheji was dismissed. On appeal the Settlement Officer Consolidation reversed the above decision on June 14, 1963 holding that Sukhram Singh and Laiq Singh were Asamis. The Deputy Director of Consolidation, exercising the powers of the Director of Consolidation Uttar Pradesh dismissed the revision petition on September 20, 1963 filed by Sukhram Singh and Laiq Singh. The present appeal is from the last decision by special leave. Two points were argued before us, namely, that Smt. Har- bheji was number entitled to the benefit of s. 21 as amended by Act XX of 1954 and secondly that the order of the Compensation Officer made on October 25, 1956 had finally decided the status of Sukhram Singh and Laiq Singh as Adhivasis and number having been appealed against, the question cannot number be reopened. We shall take these points one by one. The U.P. Zamindari Abolition and Land Reforms Act was amended in 1954 by the above amending Act in several respects. We are only companycerned with the amendment of ss. 21 and 157 and the addition of Chapter IX-A. Section 21 leaving out portions number necessary for our purposes provides after the amendment as follows Sec. 21. Non-occupancy tenants, sub-tenants of grove-lands and tenants mortgagees to be assamis. Notwithstanding anything companytained in this Act, every person who, on the date immediately preceding the date of vesting, occupied or held as- A tenant of sir land referred to in sub- clause a of clause i of the Explanation under section 16, a sub-tenant referred to in sub-clause ii of clause a of Section 20 or an occupant referred to in sub-clause i of clause b of the said section where the landholders or if there are more than one landholders, all of them were person or persons belonging-- b if the land was let out or occupied on or after the ninth day of April, 1946, on the date of letting or occupation, to any one or more of the clauses mentioned in sub-section 1 of Section 157 shall be deemed to be an asami thereof. Before the amendment the companyresponding part of the section read as follows Section 21 1 . Notwithstanding anything companytained in this Act, every person who, on the date immediately preceding the date of vesting, occupied or held land as- h a tenant of sir or land referred to in sub-clause a of clause i of the explanation under section 16, a sub-tenant or an occupant referred to in section 20, where the landholder or if there are more than one landholder all of them were person or persons belonging, both on the date of letting and on the date immediately preceding the date of vesting, to any one or more of the classes mentioned in sub-section 2 of section 1 0 or clause e of subsection 1 of section 157. shall be deemed to be an asami thereof. The difference between the two sections material for our purposes lies in the mention of all clauses of s. 157 sub-section 1 after the amendment whereas before the amendment only clause e of sub-section 1 of s. 157 was mentioned. Section 157 also was amended. Again for the purposes of this case it is number necessary to reproduce the whole of the section. It read before the amendment as follows Section 157 1 . A bhumidhar or a sirdar or an asami holding the land in lieu of maintenance allowance under section II, who is- a an unmarried woman, or if married, divorced or separated from her husband, or a widow b a minor whose father has died c a lunatic or an idiot d a person incapable of cultivating by reason of blindness or other physical infirmity e prosecuting studies in a recognised institution and does number exceed 25 years in age f in the Military, Naval or Air service of the Indian Dominion or g under detention or imprisonment. may let the whole or any part of his holding. After the amendment it reads as follows Section 157--Lease by a disabled person.- 1 A bhumidhar or a sirdar or an asami holding the land in lieu of maintenance allowance under Section 11 who is- a an unmarried woman, or if married divorced or separated from her husband or whose husband suffers, from any of the disqualifications mentioned in clause e or d or a widow b a minor whose father suffers from any of the disqualifications mentioned in clause c or d or has died and c a lunatic or an idiot d a person incapable of cultivating by reason of blindness, or other physical infirmity e prosecuting studies in a recognised institution and does number exceed 25 years in age and whose father suffers from any of the disqualifications mentioned in clause e or d or a has died f in the Military, Naval, or Air service of the Indian Dominion or g under detention or imprisonment may let the whole or any part of his holding. The difference here is that a lease by a woman although married was possible if her husband was suffering from insanity or idiocy or was a person incapable of cultivating by reason of blindness or other physical infirmity. Smt. Harbheji in her applications wished to take advantage of the amendments of ss. 21 and 157 on the ground that her husband was suffering from sinus and hence from physical infirmity and was incapable of cultivating the land. The difficulty arises because the Legislature while making the amendment made the amendment in clause h of s. 21 retrospective from the date of the passing of the Abolition Act but in s. 157 it did number expressly state that the amendments were retrospective. The short question that arises is another s. 157 when read with s. 27 also becomes retrospective numberwithstanding that there are numberexpress words of retrospectivity. The second point is companycerned with the addition of Chapter IX-A which is headed Conferment of Sirdari Rights on Adhivasis. The grounds on which the ejectment of an Adhivasi companyld be made are companytained in s. 234 of the Land Reforms Act but numbere of the Pounds applies here. Thus if Sukhram Singh and Laiq Singh were adhivasis they companyld number be ejected by Smt. Harbheji but if they were only asamis then the ejectment companyld take place because they were only tenants from year to year. Chapter IX-A added sections 240A to 240N. It provides that the Government may by a numberification declare that the rights, title and interest of the landholders in the land held by Adhivasis shall cease and vest in the State and also provides for payment of companypensation to the landlord whose rights, title or interest in the land are acquired. The companypensation statement is required to be published under s.240F and s. 240G gives a right to any person interested to file objections. Section 240H deals with the procedure for disposal of the objections under S. 240G. It provides that the Compensation Officer shall frame an issue regarding it and refer it for disposal to the Court which has jurisdiction to decide a suit under s. 229B read with S. 234A and that thereupon all the provisions relating to the hearing and disposal of such suit shall apply to his reference as if it were a suit. Section 229B provides that any person claiming to be an Asami of the whole or a part of it may sue the landlord for a declaration of his rights as Asami. Subsection 3 of the same section provided that the provisions are to apply mutatis mutandis to a suit by a person claiming to be sirdar Adhivasi . Section 234A then provides that the provisions of s. 229B mentioned above shall apply to an Adhivasi as if he were an Asami. Schedule 11 to the Land Reforms Act in Item 34 appoints the Assistant Collector, 1st Class, as companypetent companyrt for the trial of suits for declaration of rights under S. 229B. The Schedule also provides for an appeal to the Commissioner from the order and to the Board of Revenue by a second appeal. In the present case the Compensation Officer who passed the, order on October 25, 1956 was also Assistant Collector, 1st Class but he did number refer the case to himself after framing an issue and hence his order has been treated to have been passed by him in his capacity as a Compensation Officer. We will number companye to the question whether S. 157 also operates retrospectively with s. 21. The latter was made retrospective expressly. The High Court in the Division Bench decision held that S. 157 was also retrospective by implication. The companytention of the appellants is that Smt. Harbheji was number entitled to take the benefit of the amendment and to plead that she companyld let out her sir land because her husband was suffering form an infirmity and was number able to look after the cultivation If Smt. Harbheji is entitled to plead the amended section then under s. 21 Sukhram Singh and Laiq Singh must be treated as Asamis because that is what s. 21 enacts. If the unamended section is to be read with s. 21 then the companytrary result is reached. Now a law is undoubtedly retrospective if the law says so expressly but it is number always necessary to say so expressly to make the law retrospective. There are occasions when a law may be held to be retrospective in operation. Retrospection is number to be presumed for the presumption is the other way but many statutes have been regarded as retrospective without a declaration. Thus it is that remedial statutes are always regarded as prospective but declaratory statutes are companysidered retrospective. Similarly sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the companytext of companynected provisions. It is always a question whether the legislature has suffi- ciently expressed itself. To find this one must look at the general scope and purview of the Act and the remedy the legislature intends to apply in the former state of the law and then determine what the legislature intended to do. This line of investigation is, of companyrse, only open if it is necessary. In the words of Lord Selborne in Main v. Stark 1 there might be something in the companytext of an Act or companylected from its language, which might give to words prima facie prospective a large operation. More retrospectively, is number to be given than what can be gathered from expressed or clearly implied intention of the legislature. Applying these tests to the statute we have in hand, we are clear that section 157 1 a must be read to apply retrospectively. It is clear that s. 21 h mentioned only one of the clauses viz. clause e as furnishing a ground for declaration. After the amendment of clause h one or more of the clauses of s. 157 1 are to be taken into account. Now there would be numberpoint in making the amendment of s. 21 if retrospective if the other clauses were to apply- prospectively for then the force of the retrospective of clause h of s. 21 is made neutral. Therefore if the new s. 2 h is to be read retrospectively from the companymencement of Land Reforms Act, the amendment of section 157 1 which was made simultaneously must also be clearly intended to operate with retrospection. The legislature intended that at any given moment of time from the companymencement of the Lands Reforms Act all the clauses or one or more them and number clause e alone were to be taken numbere of. The amendment of clauses h speaks of one or more clauses and when we read the clauses of s. 157 1 we find them altered also. Therefore the new clauses must be read and number the old clauses. The High Court was thus right in its companyclusion that the clauses of s. 157 1 as amended also operate retrospectively. This disposes of the first point. The next point is about the finality of the order of October 25, 1956 passed by the Compensation Officer. We cannot refer that order to his capacity as the Assistant Collector. An act would, numberdoubt be referrable to a capacity which would give it validity. But the law required the companypensation officer to frame an issue and refer it to the companypetent companyrt. He companyld number decide the matter without doing so. One of the parties was before it and he 1 1890 15 A.C. 384 at 388. ought to have asked that party to prove its case. He did numberhing. It is, therefore, number wrong for the Settlement officer and the Deputy Director to treat the order as proceeding from the Compensation Officer. Further since proceedings under S. 202 of the Land Reforms Act were already pending for the decision of the identical question the Compensation Officer ought to have stayed his hands. In our opinion, the order of the Compensation Officer did number have that finality which is claimed for it. That finality attaches only to the order of the Assistant Collector on a reference of an issue from the Compensation Officer. There was thus numberfinality. The order of the Deputy Director cannot, therefore, be assailed. The appeal must fail and is dismissed but in view of the fact that an amendment of the law deprives the present appellants of a valid plea we make numberorder about companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1330 Of 1966. Appeal from the judgment and order dated August 4, 7, 1964 of the Bombay High Court in Appeal No. 65 of 1962. S. Shavaksha, R.A. Shah, J.B. Dadachanji and Bhuvanesh Kumari, for the appellant. C. Chagla, 1. M. Chagla,.Anoop Singh, M.N. Shroff, for N. Shroff, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate from the judgment of the Bombay High Court dated August 17, 1964 in application number 65 of 1962 upholding in part the judgment of Mr. Justice Tarkunde dated December 7, 1962 in Miscellaneous Petition No. 358 of 1961. The appellant is a limited liability companypany incorporated under the laws of Switzerland and carries on business in the manufacture and sale of pharmaceutical and chemical products. The respondent is a companypany incorporated under the Companies Act in India and also carries on business in the manufacture and sale of pharmaceutical products. On December 2, 1946 the ,appellant applied for registration of its trade mark PROTOVIT. The application Was granted and the appellants mark was registered in Class V in respect of Pharmaceutical preparations for human use and for veterinary use, infants and invalids foods. The appellant thereafter used that mark on multi-vitamin preparations in liquid tablet forms and its goods are being sold under that mark at least since the year 1951. On January 28, 1957 the respondent applied for registration of its mark DROPOVIT in respect of medicinal and pharmaceutical preparations and substances. The application was registered but the advertisement of the respondents application escaped the numberice of the appellant who did number hence oppose the registration. By a letter dated March 4, 1958 Messrs Voltas Ltd., the appellants agents, drew the attention of the appellant to the respondents mark DROPOVIT. There was negotiation between the parties but on March 19, 1958 the respondents wrote to the appellant refusing to alter its trade mark. On January 21, 1959 the appellant applied for rectification of the Register by removal therefrom of the respondents trade mark. The ground urged in support of the application was that the respondents mark so nearly resembled the appellants mark as to. be likely to deceive or cause companyfusion. On March 9, 1960 the appellant applied for amendment of the application and an additional ground was taken that DROPOVIT was number an invented word. The application for amendment was allowed by the Registrar. The amended application was opposed by the respondent. . By his judgment dated August 5, 1961 the Joint Registrar rejected the application for rectification holding that DROPOVIT was number deceptively similar to PROTOVIT and that the word DROPOVIT companysidered as a whole was number descriptive. The appellant took the matter in appeal to the Bombay High Court. On December 7, 1962 Mr. Justice Tarkunde dismissed the appeal. The appellant preferred an appeal under Letters Patent but the appeal was dismissed by a Division Bench companysisting of Chief Justice Chainani and Mody, J. on August 17, 1964. During the hearing of. the appeal the respondent restricted the designation of goods to medicinal and pharmaceutical preparations and substances companytaining principally vitamins. The application for rectification was made on January 21, 1959 be ore the Trade and Merchandise Marks Act. 1958 Act number 43 of 1958 came into operation. But it is number disputed that under s. 136 3 of this Act the decision of this case is governed by the provisions of Act number 43 of 1958 hereinafter called the Act . Section 11 of the Act states A mark-- a the use of which would be likely to deceive or cause companyfusion or b the use Of WhiCh would be companytrary to any law for the time being in force or c which companyprises or companytains scandalous or obscene matter or d which companyprises or.contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India or . e which would.otherwise be disentitled to protection in a companyrt shall number be registered as a trade mark. Section 12 1 provides Save as provided in sub-section 3 , numbertrade mark. shall be registered in respect. of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods. or descriptive of goods. Section 56 1 reads On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any companytravention, or failure to observe a companydition entered on the register in relation thereto. Section 2 1 d defines the phrase deceptively similar as follows A mark shall be deemed to. be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause companyfusion The first question to be companysidered in this appeal is whether the word DROPOVIT is deceptively similar to the word PROTOVIT and offends the provision of s. 12 1 of the Act. In other words the question is whether the respondents mark so nearly resembles the registered m,ark aS to be likely to deceive or cause companyfusion. It is number necessary that it should be intended to deceive or intended to cause companyfusion. It is its probable effect on the ordinary kind of customers that one has to companysider. In Parker-Knoll Ltd, v. Knoll International Ltd, 1 Lord Denning explained the words to deceive, and the phrase to cause companyfusion as follows 1 . Secondly, to deceive is one thing. To Cause companyfusion is another. The difference is this When you deceive a man, you tell him a lie. You make a false representation to him and thereby cause him to believe a thing to be true. which is false. You may number do it knowingly, or intentionally, but still you do it, and so you deceive him. But you may cause companyfusion without telling him a lie at all, and without making any false representation to him. You may indeed tell him the truth, the whole truth and numberhing but the truth, but still you may cause companyfusion in his mind, number by any ,fault of yours, but because he has number the knowledge or ability to. distinguish it from the other pieces of truth known to him. or because he may number even take the trouble to do so. The tests for companyparison of the two word marks were formulated by Lord Parker in Pionotist Co., Ltd.s application 2 as follows You must take the two words. You must judge of them, both by their look and by their sound. You must companysider the goods to which they are to be applied. You must companysider the nature and kind of customer who would be likely to buy those goods. In fact, you must companysider all the surrounding circumstances and you must further companysider what is likely to happen if each of those trade marks is used in a numbermal way as a trade mark for the goods of the respective owners of the marks. If, companysidering all those circumstances, you companye to the companyclusion that there will be a companyfusion--that is to say, number necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a companyfusion in the mind of the public which will lead to companyfusion in the goods--then you may refuse the registration, or rather you must refuse the registration in that case. It is necessary to apply both the visual and phonetic tests. In Aristoc Ltd. v. Rysta Ltd. a the House of Lords was companysidering the resemblance between the two words Aristoc and Rysta. The view taken was that companysidering the way the words were pronounced in English, the one was likely to be mistaken for the other. 1 1962 R.P.C. 265 at 274 2 23 R.P.C. 774 at 777 3 62 R.P.C. 65 at 72. Viscount Maugham cited the following passage of. Lord Justice Luxmoore in. the Court of Appeal, which passage, he said, he companypletely accepted as the companyrect exposition of the law . The answer to the question whether the sound of one word resembles too nearly the sound of another so as to bring the former within the limits of section 12 of the Trade Marks Act, 1938, must nearly always depend on first impression, for obviously a person who is familiar with both words will neither be deceived number companyfused It is the person who only knows. the one word and has perhaps an imperfect recollection of it who is likely to be deceived or companyfused. .Little assistance, therefore, is to be obtained from a meticulous companyparison of the two words, letter by letter .and syllable by syllable, pronounced with the clarity to be expected from a teacher of elocution. The Court must be careful to. make allowance for imperfect recollection .and the effect of careless pronunciation and speech on the part number only of the person seeking to. buy under the trade description, but also of the shop. assistant ministering to that persons wants. It is also important that the marks must be companypared as wholes. It is number right to take a portion of the word and say that because that portion of the word differs from the companyresponding portion of the word in the other case there is numbersufficient similarity to cause companyfusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or companyfusion or mistake in the minds of persons accustomed to the existing trade mark. Thus in Layroma case 1 . Lord Johnston said . we are number bound to scan the words as we would in a question of companyparatio literarum. It is number a matter for microscopic inspection, but to be taken from the general and even casual point of view of a customer walking into a shop. In order to decide whether the word DIROPOVIT is deceptively similar to the word PROTOVIT each of the two words must, therefore, be taken as a whole word. Each of the two words companysists of eight letters, the last three letters are companymon, and in the uncommon part the first two are companysonants, the next is the same vowel 0, the next is a companysonant and the fifth is again a companymon vowel 0. The companybined effect is to produce an alliteration. The affidavits of the .appellant indicate that the last three letters VIT is a well known companymon abbreviation used in the pharmaceutical trade to denote Vitamin preparations. Tokajon Ltd. v. Davidson Co., 32 R.P.C. 133 at 136. his affidavit dated January 11, 1961 Frank Murdoch, has referred to the existence on the Register of about 57 trade marks which have the companymon suffix VIT indicating that the goods are vitamin preparationS. It is apparent that the terminal syllable VIT in the two marks is both descriptive and companymon to the trade. If greater regard is paid to the uncommon element in these two words, it is difficult to hold that one will be mistaken for or companyfused with the other. The letters D and P in DROPOVIT and the companyresponding letters P and T in PROTOVIT cannot possibly be slurred over in pronunciation and the words are so dissimilar that there is numberreasonable probability of companyfusion between the words either from the visual or phonetic point of view. In the High Court, companynsel for the respondent made a statement that the respondent was willing that the Court should direct in exercise of its powers under s. 56 2 that the Registrar should limit the respondents trade mark DROPOVIT to medicinal and pharmaceutical preparations and substances companytaining principally vitamins and that the appeal should be decided on this basis. The question o,f deceptive similarity must therefore be decided o.n the basis of the class of goods to which the two trade marks apply subject to the limitation agreed to by the respondent. From the nature of the goods it is likely that most of the customers would obtain a prescription. from a doctor and show it to the chemist before the purchase. In such a case, except in the event of the handwriting of the doctor being very bad or illegible the chance of companyfusion is remote. As we have already observed the evidence shows that there are as many as 57 trade marks in the Register of Trade Marks with the suffix VIT. Therefore, even an average customer would know that in respect of Vitamin preparations the word VIT occurs in large number of trade marks and because of this he would naturally be on his guard and take special care against making a mistake. In this companynection the provisions of the Drug Rules, 1945 are also relevant. Under r, 61 2 vitamin preparations would be companyered by item 5 in Schedule C- 1 to the Rules and a licence would be required to stock such vitamin preparations and to sell them retail. The question of companyfusion must hence be determined on the basis that the goods with one of the two rival trade marks would be sold only by such a licensed dealer and would number be available in any other shop. The fact that the vendor would be a licensed dealer also reduces the possibility of companyfusion to a companysiderable extent. Having taken into account all circumstances of the present case we are of the opinion that the High Court and the Joint Registrar of Trade Marks were right in holding that there was numberreal tangible danger of companyfusion if respondents trade mark was allowed to companytinue to remain on the Register and the application for rectification made by the appellant should be dismissed. The question was also. argued in the appeal whether the word DROPOVIT was number an invented word and whether it was a descriptive WOrd. . Section 9 1 of the Act states- . A trade mark shall number be registered in Part A of the register unless it companytains or companysists of at least one the following essential particulars, namely-- c one or more invented words d one or more words having numberdirect reference to the character or quality of the goods and number being according to its ordinary signification, a geographical name or a surname or a personal name or any companymon abbreviation thereof or the name of a sect, caste or tribe in India It is companytended on behalf of the .appellant that DROPOVIT meant only DROP OF VITAMIN with the word of being mis-spelled as O VIT being used to denote Vitamins, and the three separate words are joined together to make DROPOVIT as one word. It was said that the word DROPOVIT was simply a companybination of three companymon words in English language and cannot, therefore, be said to. be an invented .word. In Diabolo case 1 Parker J., has explained the meaning of invented word as follows To be an invented word within the meaning of the Act a word must number only be newly companyned, in the sense of number being already current in the English language, but must be such as number to companyvey an, meaning, or, at any rate, any obvious meaning to ordinary Englishmen. It must be a word having numbermeaning or numberobvious meaning until one has been assigned to it. In the case of De Cordova and others v. Vick Chemical Co. 2 the Privy Council referred to that interpretation of Parker J., as the best standing interpretation. The question arising in this case is whether the word DROPOVIT would strike an ordinary person knowing English as meaning. DROP OF VITAMIN. In this companynection the High Court has pointed out that the original application for rectification did number companytain the ground that the word of DROPOVIT was descriptive. It was, therefore, legitimate to draw the inference that the word 1 25 R.P.C. 565 2 68. R.P.C. 103. DROPOVIT did number strike even Messrs Depenning and DePenning the legal advisers of the appellant as being descriptive. It was also pointed out that in his judgment Mr. Justice Tarkunde has remarked that when the case was opened before, him he did number understand that the word DROPOVIT meant DROP OF VITAMIN till the explanation of that word was given to. him. We see numberreason, therefore, to differ from the reasoning of the High Court on this aspect of the case. If the word DROPOVIT is number a descriptive word it must be held to be an invented word. It is true that the word DROPOVIT is companyned out of words companymonly used by and known to ordinary persons knowing English. But the resulting companybination produces a new word, a newly companyned word which does number remind an ordinary person knowing English of the original words out of which it is companyned unless he is so told or unless at least he devotes some thought to it. It follows that the word DROPOVIT being an invented word was entitled to be registered as a trade mark and is number liable to be removed from the Register on which it already exists.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1818 to 1820 of 1968. Appeals from the judgment and order dated January 22, 1968 of the Rajasthan High Court in D.B. Civil Misc. Writ Nos. 599 of 1966, 100 and 94 of 1967 respectively. R. Gokhale, D.P. Gupta and B.R. Agarwala, ,for the appellants in all the appeals . C. Kasliwal, Advacate-General, Rajasthan, Vijay Krishna Makhija, I. M. Bhardwaj and K.B. Mehta, for respondents Nos. 1 and 3 in all the appeals . B. Mehta, for respondents Nos. 2 and 4 in all the appeals . The Judgment of the Court was delivered by Dug J. These three appeals Civil Appeals Nos. 1818-1819 and 1820 of 1968 with certificate of fitness presented by Dr. Ram Pal Chaturvedi are directed against a companymon judgment of the Rajasthan High Court and as they, raise companymon questions, they are being disposed of by one judgment. Civil Appeal No. 1818 of 1968 is companycerned with the challenge to the appointment of Dr. D.G. Ojha as Principal of Sardar Patel Medical- College, Bikaner. He was appointed a Professor of Surgery and Officiating Principal of the said College on March 2, 1964. At the time of his appointment, he was officiating as Director of Medical and Health Services, Rajasthan at Jaipur. Civil Appeal No. 1819 of 1968 is companycerned with the challenge to the appointment of Dr. P.D. Matbur on July 13, 1965 as Professor of Surgery and Officiating Principal of Rabindra Nath Tagore Medical College, Udaipur. This order of appointment was subsequently superseded and Dr. Mathur was appointed as Professor of Surgery and Principal of Rabindra Nath Tagore Medical College, Udai- pur with effect from the date of his, taking over charge. It may be pointed out that Dr. Mathurs appointment as a professor of Surgery was number challenged either in the High Court or before us and his appointment as Principal alone was assailed in this Court Civil Appeal No. 1820 is companycerned with the challenge to the appointment of Dr. Rishi dated July 28, 1966 as Principal of Medical College, Jodhpur. The appointment was made on a purely temporary and ad hoc basis till further orders. On December 31, 1966, this order was partially modified in so far as Dr. Rishis remuneration is companycerned, but his appointment as Professor of Surgery and Principal of Medical College was reaffirmed to be on a purely temporary and ad hoc basis. The challenge to these three appointments by means of writ petitions failed in the Rajasthan High Court and the present appeals are directed against the companymon order of that Court. In the High Court, it was companymon ground between the parties that Dr. Ojha, Dr. Rishi and Dr. Matbur did possess academic qualifications prescribed by the University Ordinance and it was also number disputed there that these respondents had acquired the qualifications prescribed by Rule 30 4 of the Rajasthan Medical Service Collegiate Branch Rules, 1962 hereafter called the Collegiate Branch Rules . The High Court made the following observations in the impugned order -- We would, however, observe that Rule 30 4 empowers the State Government to make only a temporary or officiating appointment and the appointments of Dr. Ojha, and Dr. Rishi will be deemed to be temporary or officiating even though these words may number have been used in the orders of their appointments as Professors of Surgery. Learned Advocate General has also companyceded that the Government cannot make permanent appointments under R. 30 4 and the omission of the words temporary or officiating in the orders was by mistake. It is, therefore, number necessary to pursue the matter any further as these appointments will be companysidered only as temporary or officiating. These observations deserve to be borne in mind while dealing with the present appeals. The High Court further took the view that the qualifications relating to teaching experience were directory and number mandatory and in view of the fact that the University was number objecting to the impugned, appointments, that Court did number companysider it proper, in its judicial discretion, to interfere in proceedings for quo-warranto at the instance of the appellant. In this companynection, it was observed It hat the breach, of the relevant Ordinance No. 65 companyld have afforded a ground for the University to withdraw affiliation of the Colleges companycernd, but it was number open to the appellant to found his claim on this grievance. In this Court the question raised principally centres round the validity and effect of the proviso to sub-rule 4 of Rule 30 companytained in Part VIII of the Collegiate Branch Rules. These rules were made by the Governor of Rajasthan under Article 309 of the Constitution of India and were duly published in the Rajasthan Gazette Extraordinary dated November 5, 1962 and came into force with effect from the date of their publication. The argument canvassed before Us was that these rules companyld number override the provisions of Ordinance No. 65 made under the University of Rajputana Act of 1946. This Ordinance lays down the minimum qualifications for teachers of various stages of University Education in the affiliated Colleges. Part VIII deals with the Faculty of Medicine etc., and according to paragraph A 3 , teachers in Medical Colleges for M.B.,B.S. and Post- graduate Courses must possess the special academic qualifications and teaching experience prescribed therein. The requisite qualification by way of teaching experience prescribed for professors Additional Professors Associate Professors in Surgery is, to reproduce the language of the Ordinance, at least five years as Assistant Professor or Reader or Lecturer in a Medical College. The minimum qualifications for Principals of affiliated Colleges in the Faculty of Medicine etc., are prescribed in Part X B 3 and they read as under Masters Degree or equivalent Post- Graduate qualification or a higher one in one of the branches in which the College is affiliated with a minimum professional experience of 20 years, of which at least 10 years must have been spent as a teacher of Post-Graduate Classes and 5 years in administrative work. We may number turn to the Collegiate Branch Rules and examine the appellants argument. These Rules framed under Art. 309 of the Constitution for regulating the recruitment to posts in, and the companyditions of service of persons appointed to, the Rajasthan Medical Service Collegiate Branch directly govern the impugned appointments and their binding, character is beyond question. Rule 6 providing for the companyposition and strength of the Rajasthan Medical Service Collegiate Branch lays down that the Service shall companysist of two wings viz., Clinical and number-Clinical and the right of promotion shall be companyfined to each wing. The nature of companyditions included in each wing are as specified in companyumn 2 of the Schedule attached to the Rules. Procedure for promotion is dealt with in Part V of, these Rules. Rule 23 provides that the persons enumerated in Column 4 of the SchedUle shall be eligible on the basis of, seniority cum-merit, for promotion to posts speci-fied in companyumn 2 subject to their possessing minimum qualifications and experience as laid down by the Rajasthan University for the teaching staff in Medical Colleges. In selecting candidates for promotion, regard is to be had to six factors mentioned in sub-rule 2 which include, inter alia academic qualifications and experience. In the Schedule in the number- Clinical wing, the selection posts companysisting of Professors and Additional Professors are to be filled 100 per cent by promotion from Readers. There is numberhing specific in this Schedule in regard to the posts of Principals and these rules do number provide specifically for their appointments. Rule 30, on the basis 6f which arguments were principally addressed in these three appeals, may number be reproduced in extenso -- Temporary or officiating appointments. 1 A temporary vacancy in a Senior or Selection post, may be filled by Government by appointing thereto in an officiating capacity an officer whose name is included in the list prepared under Rule 24 3 or in the lists under Sub-Rules 2 and 3 of Rule 23 Provided that till the preparation of the first list or in case the list is exhausted, a vacant post may be filled by Government by appointing thereto a member of the Service eligible for appointment to the post by promotion or by appointing thereto temporarily person eligible for appointment by direct recruitment to the service under the provisions of these Rules. A temporary vacancy in the Junior posts may be filled by Government by appointing thereto temporarily a person eligible for appointment by direct recruitment to the service under the provisions of these Rules. 3 NO appointment made under Sub- Rule 1 and 2 above, shall be companytinued beyond a period of six months without referring it to the Commission for their companycurrence and shall be terminated immediately on their refusal to companycur. Notwithstanding anything companytained in Subrules 1 or 3 above or any other provisions in the rules, any selection or senior posts falling vacant may be filled in temporarily by appointment of any Specialist Jr. or Senior in the service of the State, who is a postgraduate and has teaching experience and practice in the speciality, for such periods as are required by the University Ordinance for the time being in force on the date of such appointment-- Provided that - Two years of service rendered in the speciality shall be reckoned as equivalent to one year teaching experience gained in the Speciality. Sub-rule 4 , it maybe pointed out, was added on August 22, 1966 with retrospective effect during the pendency of the writ petitions in the High COurt, with the result that the writ petitions were allowed to be amended so as to include a challenge to the validity of this amendment. The amendment was assailed on the grounds of mala hides and unconstitutional discrimination. The validity of the retrospective operation of this sub-rule was number questioned before us by Shri Gokhale, though a lukewarm challenge was suggested before the close of the arguments on the grounds of mala fides. It may be numbered that the requirement of teaching experience as laid down in the University Ordinance also finds place in sub-rule 4 of Rule 30 as added in 1966 and it is only the proviso which has the effect of modifying to some extent this companydition. The narrow question requiring companysideration therefore is whether the proviso, according to which two years of service rendered in the speciality is to be reckoned as equivalent to one years teaching experience gained in the speciality, must, as companytended on behalf of the appellant, yield to the requirement in the Ordinance which prescribes the minimum qualification of teaching experience and, therefore, must be ignored. We are unable to uphold the companytention. The Collegiate Branch Rules having been made pursuant to the power companyferred by Art. 309 of the Constitution, they must be given full effect subject to the provisions of any Act made by the appropriate Legislature regulating the recruitment and companyditions of service of persons appointed to the Rajasthan Medical Service Collegiate Branch . Such Act need number specifically deal with the aforesaid Medical Services but it must be an Act as companytemplated by Art. 309 by or under which provision is made regulating the recruitment and companyditions of service taking within its fold the said Medical Services. This takes us to the question of scope and effect of Ordinance No. 65. The University of Rajputana Act of 1946 hereafter called the Act under which Ordinance No. 65 was made was enacted to incorporate the University of Rajputana. The name of the University was changed in 1956 to the University of Rajasthan. The Syndicate of this University companystituted under s.21 of the Act is empowered under s.29 read with s.30 to make ordinances, companysistent with the Act and statutes, to provide for the matters listed in s.29. These matters include in clause VI emoluments and companyditions of service of University ,teachers. But on this, basis alone it is number easy for us to hold that Ordinance No. 65 is, a provision under an Act, regulating the recruitment and companyditions. of service of persons appointed to Rajasthan Medical Service, as companytemplated by Art. 309 of the Constitution. Shri Gokhale referred us to entry 41 in List II of 7th Schedule of the Constitution which deals with the subject, inter alia, of State Public Services and submitted that the Act fell within this entry and therefore came within the purview of Art. 309. We are number impressed by this submission. In our opinion, on a companysideration of the pith and substance of the Act and on a companyparison of the language used in the entries Nos. 11 and 49 of List II, the field of legislation of the Act more appropriately falls under entry NO. 11 which deals with the subject of education including university. The appointments of Dr. Ojha, Dr. Mathur and Dr. Rishi thus seem to us to be fully justified by the Collegiate Branch Rules and their appointments cannot be held to be invalid by reason merely of number-compliance with the provisions of Ordinance No 65 in regard to the companydition of teaching experience. The field of operation of this Ordinance appears to us to be restricted to the question of affiliation of the Colleges companycerned with the Rajasthan University. It is numbereworthy that the University has number thought fit to object to these appointments. If there is violation of a provision of this Ordinance then that may appropriately be taken into account by the Rajasthan Univesity for the purpose of withdrawing or refusing to companytinue affiliation of the companyleges in question. But clearly that would number render the impugned appointments null and void a fortiori that cannot companyfer any right on Dr. Ram Pal Chaturvedi to approach the High Court by means of petition for writ of Quo-warranto to challenge the appointments of these three persons. We are unable to hold that these persons are usurpers and are holding the posts of Principals without the sanction of authority. On the view that we have taken on the scope and effect of the Collegiate Branch Rules it is unnecessary to companysider the argument strongly pressed by Shri Gokhale that the provisions of Ordinance No. 65 are mandatory and we refrain from expressing any opinion either way. The appellants challenge on the ground of mala fides is also unsustainable, Except for the bald assertion at the Bar numberhing companyvincing has been said to persuade us to hold that r. 30 4 added in 1966 was made for a companylateral purpose in companyourable exercise of the rule making power. The appeals must, therefore, fail and are dismissed with companyts, One set of companyts.	Case appeal was rejected by the Supreme Court
ORIGINAL JURISDICTION Election Petition No. 6 of 1969. Petition under Art. 71 of the Constitution of India and S. 14 of the Presidential and Vice-Presidential Election Act Act XXXI of 1952 . Sarjoo Prasad, P. Paramegwara Rao and K. C. Dua, for the petitioner. C. Setalvad, N. A. Palkhivala, M. C. Chagla, J. B. Dadachanji, Ravinder Narain and 0. C. Mathur, for the respondent. Jagdish Swarup, Solicitor-General, L. M. Singhvi and S. P. Nayar, -for the Election Commission and Union of India. The Judgment of the Court was delivered by Sikri, J. This is a petition under Art. 71 of the Constitution and S. 14 of the Presidential , Vice- Presidential Elections Act XXXI of 1952 -hereinafter referred to as the Act-praying for a declaration that the election of Shri Gopal Swarup Pathak, respondent, to the office of the Vice-President of India is void. The main ground on which this declaration is sought is, that the numberination paper of Dr. Ram Sharan Dass Sakhuja was. wrongly rejected by the Returning Officer on August 6, 1969. The respondent apart from meeting thus ground has raised a, number of other issues including the issue whether the numberination paper of Dr. Ram Sharan Dass Sakhuja was genuine, and if number, whether the petition is maintainable. The learned companynsel for the respondent strongly pressed on us that we should first try this issue suggested by him but as we have companye to the companyclusion that the petition must fail on the ground that the numberination paper of Dr. Ram Sharan Dass Sakliuja was rightly rejected on August 6, 1969, it is number necessary to companysider the other issues that arise out of the pleadings of the parties. The two issues suggested by the petitioner which we propose- to discuss are Whether the numberination of Dr. Ram Sharan Dass, Sakchuja has been wrongly rejected on the ground that the numberination paper was number delivered in person Whether the Returning Officer had power to reject the numberination even before the date of scrutiny. The relevant facts for determining these issues may number be set out. On 19th or 20th July, 1969, the office of the Vice President of India fell vacant on the resignation of the then incumbent, Shri V. V. Giri. The Election Commission appointed Shri B. N. Banerjee, Secretary, Rajya Sabha, as Returning Officer for the election of the Vice- President of India. The Election Commission issued a numberification under s. 4 appointing August 9, 1969, as the last date for filing numberination for election to the ,office of the Vice-President Of India and August 11, 1969, for scrutiny of numberination papers. A number of candidates filed numberination papers and on August 11, 1969, the Returning Officer made a record of proceedings. The relevant part of the pro-ceedings reads as follows I held the scrutiny of numberination papers for the Vice- Presidential Election today, the 11th August, 1969, at I I M. in my office Room No. 29 in Parliament House, New Delhi, 24 numberination papers were delivered to me within the time and in the manner laid down in rule 4 of the Presidential and Vice-Presidential Election Rules, 1952. These numberination papers related to - Shri S. Nagappa One numberination paper Shri G. S. Pathak Seventeen numberination papers Shri Sivashanniugam Two numberination papers Jagannathan Pillai Smt. Manohara Nirmala One numberination paper Holkar Shri B. P. Mahaseth One numberination paper Shri Hari Vishnu Kamath .Two numberination papers I gave the candidates and the others present all -facilities for examining the numberination papers -of all the candidates delivered to me. The numberination paper were examined by them. No objection was raised to any numberination papers by any candidate or his representative. I scrutinised all the numberination papers and I found that they satisfied the requirements of a valid numberination paper. I accordingly accepted all the numberination papers as valid and made endorsements on all the 24 numberination papers accepting them. I also brought to the numberice of those present that I had received some numberination papers, and some other papers- purporting to be numberination papers, by post, and that I companyld number treat them as valid numberination papers as they were number delivered to me in accordance with sub-rule 1 of rule 4 of the Presidential and Vice-Presidential Election Rules, 1952, and that they also did number companyply with, the provisions of law in other respects. I further mentioned to those present that there werein addition three other papers which, though presented to me in person, did number companyply with the requirements of the law as they were number accompanied by the certified extracts from the electoral roll and suffered from other defects. I had number given any serial number to any of these papers and had rejected all of them. One of the numberinations referred to in para 4 of the proceed- ings was that of Dr. Ram Sharan Dass Shakuja. It appears that. the numberination papers of Dr. Shakuja, alleged to be companyplete in every respect, were number delivered in person either by Dr. Shakuja. or by the proposer or seconder in person to the Returning Officer but were received by him by post on August 6, 1969. On that very day the Returning Officer did number treat the papers as valid as they were number delivered to him in accordance with sub-r. 1 of r. 4 of the Presidential and Vice-Presidential Elections Rules, 1952. In order to discuss the issues mentioned above it is necessary to set out the relevant statutory provisions. Under s. 4 of- the Act the Election Commission by numberification appoints for every election a the last date for making numberinations, b the date for scrutiny of numberinations, c the last date for the withdrawal of candidatures, and d the date on which poll -shall, if necessary, be taken. Under s. 5 any person may be numberinated as a candidate for election to the office of Vice-President if he is qualified to be elected to that office under the Constitution. Subsection 2 of s. 5 prescribes that each candidate shall be numberinated by a numberination paper companypleted in the prescribed forms and subscribed by the candidate himself as assenting to the numberination and by two electors as proposer and seconder. We may assume for the purpose of this case that the companydi- tions laid down in s. 5 2 were companyplied with. Section 6 deals with the withdrawal of candidature and pro- vides that any candidate may withdraw his candidature by a numberice in writing in the prescribed form subscribed by him and delivered before three oclock in the afternoon on the date fixed under clause c of subsection 1 of section 4, to the Returning Officer either by such candidate in person or by his proposer ,or seconder who has been authorised in this behalf in writing by such candidate. The learned companynsel for the petitioner rightly companyceded that if .a candidate wants to withdraw Ms candidature the numberice in writing must be delivered to the Returning Officer in person by such candidate or by his proposer or seconder who has been authorised. In other words numbercandidate can withdraw by sending a numberice in writing by post. Section 18 gives the grounds for declaring the election of a .returned candidate to be void. One of the grounds is If the Supreme Court is of opinion that the numberination of any candidate has been wrongly rejected or the numberination of the successful candidate or of any other candidate who has number withdrawn his candidature has been wrongly accepted, the Supreme Court shall declare the election of the returned candidate to be void.- Section 21 gives powers to the Central Government to make rules and the two matters, among others, on which rules can be made are d the form and manner in which numberinations may be made and the procedure to, be followed in respect of the presentation of numberination papers e the scrutiny of numberinations and, in particular, the manner in which such scrutiny shall be, companyducted and the companyditions and circumstances under which any person may be present or may enter objections there at. In pursuance of these, powers rules were framed. Rule 4 deals with the presentation of numberination papers and is in the following terms 4. 1 On or before the date appointed under clause ,a of sub-section 1 of section 4, each candidate shall, either in person or by his proposer or seconder, between the hours of eleven in the forenoon and three in the afternoon, deliver to the Returning Officer at the place specified in this behalf in the public numberice a numberination paper companypleted in Form 2 in the case of a Presidential election, and in Form 3 in the case ,of a Vice-Presidential election, together with a certified companyy of the entry relating to the candidate in the electoral roll for the Parliamentary companystituency in which he is registered. Any numberination paper which is number received before three oclock in the afternoon on the last date appointed under clause a of sub-section 1 of section 4 or to which the certified companyy referred to in subrule I of this rule is number attached shall be rejected. Rule 5 prescribes the procedure on receipt of numberination papers as follows On the presentation of a. numberination paper, the Returning Officer shall- a sign thereon a certificate stating the date and time of presentation of the numberination paper and enter thereon its serial number b inform the person or persons presenting the numberination paper of the date, time, and place fixed for the scrutiny of numberinations and c cause to be affixed in some companyspicuous place in his office a companyy of the numberination paper as certified and numbered under clause a of this rule. Rule 6 provides for the scrutiny of numberinations and is in the following terms 6. 1 The candidates, one proposer and one seconder of each candidate, and one other person duly authorised in writing by such. candidate, shall be entitled to be present at the time of scrutiny of numberinations and the Returning Officer shall give them all reasonable facilities for examining the numberination papers, of all candidates which have been delievered within the time and in the manner laid down in rule 4. The Returning Officer shall then examine the numberination papers and decide all objections which may be made to any of them. The Returning Officer may, either on such objection or on his own motion, and after such summary inquiry, if any, as he thinks necessary, reject a numberination paper on any of the, following grounds, namely a that the candidate is number eligible for election as President or Vice-President, as the case may be, under the Constitution or b that the proposer or seconder is number qualified to subscribe a numberination paper under sub-section 2 of section 5 or c that the signature of the candidate, proposer or seconder is number genuine or has been obtained by fraud or d that the numberination paper has number been duly companypleted and the defect or irregularity is of a substantial character or e that the proposer or seconder has subscribed, whether as proposer or seconder, another numberination paper received earlier by the Returning Officer at the same election. The Returning Officer shall hold the scrutiny on the date appointed in this behalf under clause b of sub-section 1 of section 4 and shall number allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his companytrol Provided that, in case an objection is made, the candidate companycerned shall, if he so requires, be allowed time to rebut it number later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date on which the proceedings have been adjourned. The Returning Officer shall endorse on each numberination paper his decision either accepting or rejecting it and if the numberination paper is rejected, he shall record in writing a brief statement of his reasons for rejecting it. The question whether a candidate is entitled to send his numberination papers by post to the Returning Officer may number be companysidered. It will be numbericed that r. 4 provides only one manner of presentation, i.e., delivery either in -person by the candidate or by his proposer or seconder. Further it mentions the time within which it can be delivered, i.e., between the hours of eleven in the forenoon and three in the afternoon. It seems to us that if the numberination paper is number presented in person either by the candidate or by the proposer or the seconder. it cannot be deemed to have been presented at all. There seems to be good reason for making this rule because otherwise number only the authenticity of the person sending the numberination paper will be in doubt but also the time of the delivery of the numberination paper would be in doubt. Be that as it may, if the rule provides one method of presentation that method of presentation must be followed. That this is the only method of presentation of numberination papers is home out by subsequent provisions. Sub-rule 2 of r. 4 provides that any numberination paper which is number received before 3 oclock in the afternoon on the last date appointed under cl. a of sub-s. 1 of s. 4 shall be rejected. This shows that even if a numberination paper is presented personally but after 3 oclock in the afternoon it has to be rejected. The rule proceeds on the basis that the presentation must have been either in person or by the pro- poser or the seconder. If a numberination paper is received by post it would be difficult to say that it has been presented and received before 3 oclock on the last date appointed under cl. a of sub-s. 1 of s. 4. Rule-5 also proceeds on the basis that the presentation of a numberination paper must be in person because it requires the Returning Officer to sign thereon a certificate stating the date and time of presentation of the numberination paper and inform the person or persons presenting the numberination paper of the date, time and place fixed for the scrutiny of numberinations. It is clear that r. 5 companytemplates only one method of presentation. This is again evident from r. 6 which directs the Returning Officer inter alia to give the candidates and other authorised persons present reasonable facilities for examining the numberination papers of all candidate s which have been delivered within the time and in the manner laid down in r. 4. In other words, the numberination papers which have number been delivered within time and in the, manner laid down in r. 4 have number to be shown for purposes of scrutiny. The learned companynsel for the petitioner companytends that sub-r. 2 of r. 4 gives two grounds of rejection, one that the numberination paper is number received before 3 oclock in the afternoon of the last date appointed under cl. a of sub-s. 1 of s. 4, and the second that the certified companyy referred to in sub-r. 1 of r. 4 is number attached. He further says that r. 6 gives five more grounds of rejection. He says that the ground on which the numberination paper of Dr. Ram Sharan Dass Shakuja has been rejected is number companyered by either sub.-r. 2 of r. 4 or r. 6 and accordingly the numberination paper of Dr. Ram Sharan Dass Shakuja companyld number have been validly rejected. It seems to us that this numberination paper companyld be rejected on the ground that it has number been presented in person and received before 3 oclock in the afternoon on the last date, appointed under cl. a of sub-r. 1 of r. 4. Such a numberination paper companyld number be treated to have been received within the meaning of sub-r. 2 of r. 4 and the Returning Officer was entitled to reject it. There is numberforce in the second submission that at any rate the Returning Officer should have waited till the date of the scrutiny L7Sup. CI 170-7 because as soon as he finds that a numberination paper has number been duly presented and received he must reject it outright at the time it is handed over to him. The learned companynsel companytends that even if there has been a breach of r. 4 l , the rule is number mandatory and the breach of it should number be deemed fatal. We are unable to agree with this submission. As we have mentioned before, the rules companytemplate only one method of presentation and if that method is number followed the numberination papers cannot be held to be validly presented and must be rejected outright. To hold otherwise would lead to utter companyfusion and delay in the companypletion of the election. The Returning Officer would number know who and where to inform about the date of scrutiny he would number be certain whether it is genuine, and would have to take evidence as to whether it is a genuine numberination paper or a forged paper. In the result the petition fails and is dismissed with companyts. The petitioner will pay to the respondent Rs.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2532 of 1966. Appeal by special leave from the judgment and order dated August 8, 1963 of the Punjab High Court, Circuit Bench at Delhi in Civil Revision No. 330-D of 1954. P. Maheshwari and S.M. Jain, for the appellant. A. Seyid Muhammad and S.P. Nayar, for the respondent. The Judgment of the Court was delivered by Hidayatullah, C.J. This is an appeal against a judgment and order of the Circuit Bench of the Punjab High Court at Delhi Single Judge in a matter arising under the Arbitration Act. By ,m agreement dated April 28, 1948 the appellant companypany entered into a companytract with the Chief Director of Purchase Food acting on behalf of the Government of India. It is number necessary to give the details of this companytract, because the matter was referred to arbitration under an arbitration clause included in the agreement between the parties. The award was made and signed on April 26, 1950. The Arbitrator awarded Rs. 17,080-2-9 with companyts in favour of the companypany. The Arbitrator, however, did number send a numberice as such of the making and signing of the award but sent a companyy of the award signed by him to the companypany. The companypany acknowledged the receipt of this companyy by two letters which are dated May 5 and May 16, 1950. It appears that in the original which was retained in the office of the Arbitrator, it was stated that there was a companyering letter giving numberice of the making of the award, but the companypany denied that any such letter had been sent. However, numberhing much turns on it as we shall show presently. After the companyy of the award was received by the companypany, it filed an application under s. 14 1 of the Arbitration Act in the Court of the Subordinate Judge, Delhi on March 30, 1951 for making the award ruIe of the companyrt. It may be mentioned that on July 3, 1951, the Arbitrator sent the original award to the companyrt also. Before the Subordinate Judge objection was taken by the Union of India that the application of the companypany to the companyrt was delayed since such an application under s. 14 1 of the Arbitration Act under Art. 178 of the Indian Limitation Act had to be made within 90 days of the receipt of the numberice intimating that the award had been made and signed. This objection prevailed with the Subordinate Judge who rejected the application. A revision application was unsuccessfully made before the High Court and it is the order on the revision application which is the subject of appeal before us. Originally the revision application went before a learned Single Judge of the High Court. He referred the matter to a Division Bench which in its turn referred the case for decision to a Full Bench. The Full Bench gave its opinion on November 17, 1961. Although the Full Bench discussed the matter it did number reach any companyclusion in the case, because it felt that whether the application under s. 14 1 of the Arbitration Act had been made within 90 days or number, was a question of fact which has to be decided by the learned Single Judge, and as the learned Single Judge had number gone into that question, the matter had to go back to him. When the case came before the learned Single Judge, he took some evidence and examined the question in detail. We upheld the Sup CI /70--1o decision of the Subordinate Judge and dismissed the revision application. It has been argued before us by Mr. B.P. Maheshwari that the judgment under appeal is erroneous, because s. 14 1 of the Arbitration Act requires that there should be a numberice in writing and that numberice had to be something besides the award of which a companyy had been sent. He has cited a number of rulings in support of his companytention that a numberice in writing is incumbent before limitation under Art. 178 of the Limitation Act which applies to Art. 14 1 petitions can start. In chief, he relies upon Ratnawa v. Gurishiddappa Gurushantappa Magavi Ors. 1 , Puppalla Ramulu v. Nagidi Appelaslwami Ors. 2 , Jagdish v. Sunder 3 , Ganga Ram v. Radha Kishan 4 , Badaria Ramakrishnarnma Ors. v. Vattikonda Lakshmibayamma Ors. 5 . It is number necessary to go into the reasoning which made the learned Judges in these cases to lay down that there must be a proper numberice in writing of the making of the award. That follows in fact from the words of s. 14 1 of the Arbitration Act. That section says that when the arbitrators or umpire have given their award, they shall sign it and shall give numberice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award. What will be companysidered a sufficient numberice in writing of the making and signing of the award is a question of fact. In the cited cases emphasis sometimes has been laid upon the latter part of the sub-section which speaks of the amount of fees and charges payable in respect of the arbitration and award. Sometimes emphasis has been placed upon the opening words namely that there should be a numberice in writing. Reading the word numberice as we generally do, it denotes merely an intimation to the party companycerned of a particular fact. It seems to us that we cannot limit the words numberice in writing to only a letter. Notice may take several forms. It must, to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed. In the present case, a companyy of the award signed by the arbitrator was sent to the companypany. It appears to us that the companypany had sufficient numberice that the award had been made and signed. In fact the two letters of May 5 and May 16 to which we have referred quite clearly show that the companypany knew full well that the arbitrator had given the award, made it and signed it. In these circumstances to insist upon a letter which perhaps was also cent though there is some doubt about it is to refine the law A.I.R. 1962 Mysore 135. 2 A.I.R. 1957 A.P. 11. I.L.R. 27 Pat. 86. 4 I.L.R. 1955 Punj. 402. I.L.R. 1958 A.P. 166. beyond the legitimate requirements. The only omission was that there was numbernotice of the amount of the fees and charges payable in respect of arbitration and award. But that was number an essential part of the numberice for the purpose of limitation. To emphasise the latter part as being the essential part of the numberice is to make the first part depend upon the determination of the fees and charges and their inclusion in the numberice. A written numberice clearly intimating the parties companycerned that the award had been made and signed, in our opinion certainly starts limitation. In this view of the matter we are in agreement with the decision of the learned Single Judge who has endorsed the opinion of the Subordinate Judge that limitation began to run from the receipt of the companyy of the award which was signed by the Arbitrator and which gave due numberice to the party companycerned that the award had been made and signed. That is how the party itself understood when it acknowledged the companyy sent to it. Therefore, the application must be treated as being out of time and the decision of the High Court to so treat it was companyrect in all the circumstances of the case. We, therefore, do number see any reason to interfere in this appeal and it is dismissed. But we make it clear that the other part of the case, namely what is to happen to the award sent by the Arbitrator himself to the companyrt has yet to be determined and what we say here will number affect the determination of that question. Obviously enough that matter arises under the second subsection of s. 14 and will have to be companysidered quite apart from the application made by the companypany to have the award made into rule of Court. It was represented to us by Dr. Syed Mohammad that objections had been taken to the validity of the award and they remain still for decision. Those of companyrse must fall to the ground with the application which we have found to be out of time. As to whether similar objections can be raised in answer to the award filed at the instance of the arbitrator is a question which we cannot go into in the present appeal and numberexpression of opinion must be attributed to us on that point. In the circumstances of the case we leave the parties to bear their own companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1517 of 1968. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated March 13, 1968 of the Madhya Pradesh High Court, Indore Bench in Election Petition No. 45 of 1967. A. Chitaley, Y. S. Dharmadhikari, S. S. Khanduja and B. Rohatgi, for the appellant. N. Dikshit, for the respondent. The Judgment of the Court was delivered by Bachawat, J. This appeal is directed against the judgment of a Single Judge of the High Court of Madhya Pradesh dismissing ,an election petition for setting aside the election of the respondent Chaudhury Nitiraj Singh to the Hoshangabad Parliamentary Constituency No. 27. The appellant was the Praja Socialist Party candidate with the election symbol hut. The respondent was the Congress Party Candidate with the election symbol Two bullocks with voke on. The voting took place on February 20, 1967. The votes were companynted on February 21 and February 20, 1967. The respondent having got a majority of about 20,000 votes was declared duly elected. The petition charged the respondent with several companyrupt practices. The appellant numberpresses before us only the charge under paragraph 5 i , ii , iii and iv , paragraph 5 v , paragraph 6 and paragraph 7 ii . At the time of the election, the Congress Party, was in power and the Chief Minister Shri D. P. Mishra belonged to the Congress Party. In November 1966 the respondent was numberinated by the Congress Party as its candidate for the Hoshangabad Parliamentary Constituency. The substance of the charge as made in paragraph 5 i , ii , iii and iv and as pressed before us is that on December 23, 1966 the Government of Madhya Pradesh headed by Shri D. P. Mishra promulgated an Ordinance No. 19 of 1966 exempting agriculturists holdings and less than 7.50 acres or paying land revenue number exceeding Rs. 5 from payment, of land revenue, that Shri D. P. Mishra as the agent of the respondent and with his companysent made speeches at Narsinghpur and Piparia on February 16, 1967 announcing the benefit of such exemption and that the respondent thus companymitted the companyrupt practice under S. 123 1 A of the Representation of the People Act, 1951. The evidence shows that the question of exemption of uneconomic holding from payment of land revenue was being agitated for some time past Towards the close of 1966 a resolution was moved by the members of the opposition parties in the Madhya Pradesh Vidhan Sabha. urging such exemption. But numberbill to that effect was then passed. The Government reconsidered the matter and when the Vidhan Sabha was number in session it passed Ordinance No 19 of 1966 granting the exemption. The Ordinance was later replaced by Act. No. 6 of 1967 which was published on April 26, 1967. The exemption was advocated by the Praja Socialist Party also and was welcomed by all parties. Nevertheless on the eve of the election the opposition parties started a campaign stating that the object of the exemption was to forfeit the land to the State and raised the slogan Lagan Maaf Zamin Saaf. The propaganda was refuted by the Congress Party. In an election speech on February 16, 1967 Shri D. P. Mishra raised the slogan Lagan Maaf Sab Party Saaf. His object was to tell the voters that the exemption should be granted and that the opposition parties should be routed in the election. It also appears that one Shri S. K. Dixit a member of the Congress Party published a pamphlet Ex. P-2 on or about February 7, 1967 refuting the false propaganda that the exemption was temporary and was granted with a view to forfeit the lands and urging the electors to vote for the companygress. On the materials on the record it is impossible to hold that the respondent companymitted the companyrupt practice under S. 123 1 A . The ordinance was passed by the Government of Madhya Pradesh. As a result of the Ordinance a large number of agriculturists got exemption from land revenue. Such an exemption does number amount to a gift, offer or promise- of any gratification within the meaning of S. 123 1 A . Nor is it possible to say that the government was the agent of the respondent. It is true that the Congress Party was then in power. But the exemption was number given by the Congress Party. It was given by the Ordinance which was passed by the Government. Nor does the announcement of the declaration at the meeting held on February 16, 1967 or by the pamphlet Ex. P-2 carry the matter any further. On the materials on the record it is number possible to say that either Shri D. P. Mishra or Shri S. Dixit acted as the agent of the respondent. The charge under paragraph 5 i , ii , iii and iv is number established. Some additional embellishments of the charge were dealt, with by the learned Judge and they were number pressed before us. The substance of the charge as laid in paragraph 5 v and as pressed before us is that on the eve of the election the Government of Madhya Pradesh headed by Shri D. P. Mishra declared that Class III and Class IV government employees would get increased dearness allowance from April 1, 1967 according to the rates sanctioned for Central Government employees, that Shri D. P. Mishra with the companysent of the respondent and as his agent announced the grant of these benefits at the meetings held on February 16, 1967 at Narsinghpur and Piparia and that the respondent thus companymitted the companyrupt practice under S. 123 1 A . It appears that Class III and Class IV employees gave a numberice to the government stating that they would go on strike with effect from February 13, 1967. Without their companyoperation the entire election would have been at a standstill. The Government thought that the demand of the employees for increased dearness allowance was legitimate and therefore announced on or about February 11, 1967 its decision to grant the increased dearness allowance with effect from April 1, 1967. The grant of the increased dearness allowance cannot be regarded as a gift, offer or promise of any gratification within the meaning of s. 123 1 A number is it possible to say that the Government or Shri D. P. Mishra was the agent of the respondent. The announcement of the grant of the increased dearness allowance at the meeting held on February 16, 1967 does number carry the matter any further. The charge under paragraph 5 v is number established. The charge under paragraph 6 is that the respondent or his agent distributed dummy ballot papers with the respondents name and his election symbol of Two bullocks with yoke on an , so the appellants name without his election symbol printed thereon, that those papers companyveyed to the voters the impression that the appellant had withdrawn his candidature, that the appellant and his agents on the eve of the election told the voters that the appelant had withdrawn his candidature and that the respondent thereby companymitted the companyrupt practice under S. 123 4 . Vie evidence shows that dummy ballot papers as mentioned above were printed and distributed on behalf of the respondent. Such dummy ballot papers were in companytravention of the instructions issued by the Election Commission of India. The appellants name should number have been printed in them. But it is impossible to say that the dummy ballot papers companyveyed to the voters the impression that the appellant had withdrawn his candidature. On this issue the appellant examined P.W. 6, PW 7, PW 10, PW 23, PW 25 PW 27, PW 29, PW 30, PW 31 and PW 32 and the respondent examined RW 2, RW 3, RW 1 1 and RW 13. In agreement with the learned Judge we do number accept the statement of the appellants witnesses that on the eve of the election the respondent and his agents informed the voters that the appellant had withdrawn his candidature. The voters knew that there were two candidates in the field, viz., the appellant and the respondent. Even on February 16, 1967 Shri D. P. Mishra stated that the appellant was companytesting the election. The respondent carried on a vigorous election propaganda until Februay 18, 1967. If the respondent or his agent had informed the voters that the appellant had- withdrawn his candidature it was number likely that such intensive propaganda would be carried on, until that date. The charge under paragraph 6 is therefore number established. The charge under paragraph 7 ii was that Chaudhary Diwan Singh, the Station House Officer at Sohagpur, and a member of the police force in the service of the government, with the companysent of the respondent actively canvassed for the respondent and that the respondent thereby companymitted companyrupt practice under s. 123 7 . To prove this charge the appellant examined PW 3, PW 4 and PW 9. Chaudhary Diwan Singh and the respondent denied the charge. For the reasons given by the learned Judge, it is impossible to accept the testimony of PW 3, PW 4 and PW 9. Their evidence does number ring true P.W. 3 never spoke to anybody that he was asked by Chaudhary Diwan Singh to vote for the respondent. It is number likely that Diwan Singh would approach P.W. 4. It is impossible to believe that P. W. 9 companyld overhear a companyversation between Diwan Singh and the respondent when the respondent is said to have asked Diwan Singh to canvass for him. The charge under paragraph 7 ii is also number established.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION civil appeal No 2482 of 1968. Appeal by special leave from judgment and order dated March 18, 1968 of the Allahabad High Court in Second Appeal No. 317 of 1965. Mohan Behari Lal, for the appellant. P. Rana, for respondents Nos. 1 and 2. K. Daphtary, B. R. L. Iyengar, Bishambar Lal and H. K. Puri, for respondent No. 3. The Judgment of the Court was delivered by Shah J. The Western U.P. Electric Power Supply Company Ltd.-hereinafter called the Company-holds a licence under s. 3 1 of the Indian Electricity Act 9 of 1910 to supply electricity in certain areas in the State of U.P. Messrs Hind Lamps Private Ltd. set up a factory for manufacturing electrical equipment within the area of supply of the Company. Hind Lamps was receiving energy from the Company. Hind Lamps made several representations to the State Government that the supply of energy by the Company was inadequate to meet its requirements and was interrupted and fluctuating. Meetings were held between the Company, the State officials and Hind Lamps for devising means to ensure uninterrupted and adequate Supply of energy required by Hind Lamps, but there was numberimprovement in the supply position. Hind Lamps then applied to the Government of U.P. to grant direct supply of electrical energy from the State Electricity Board. The State Government by order dated December 26, 1961, issued in exercise of the powers companyferred by s. 3 2 e ii of the Indian Electricity Act, 1910 as amended by the Indian Electricity Uttar Pradesh Sanshodhan Adhiniyam, 1961, directed the State Electricity Board to supply electrical energy directly to Hind Lamps upon terms and companyditions similar to those on which it supplied electrical energy to other customers. In reply to a representation to reconsider the decision, the Government informed the Company that the decision was necessitated in the public interest and there was numberjustification for revising it. Another representation made by the Company was also turned down and direct supply of electrical energy was companymenced, by the State Electricity Board to Hind Lamps. L11 Sup. C.I.-69 A petition moved by the Company in the High Court of Allahabad for a writ of certiorari quashing the order dated December 26, 1961 was rejected by R. S. Pathak, J. In appeal under the Letters Patent against the order passed by the learned Judge, companynsel for the Company applied fOr leave to plead that the order dated December 26, 1961, resulted in discrimination between Hind Lamps and other companysumers within the area of supply of the Company, and also between Hind Lamps and the Company and the order was on that account invalid. The High Court permitted the Company to raise the companytention, but declined to-give opportunity to enlarge, the evidence on record at that stage. Sole reliance was therefore placed by companynsel for the Company on paragraph-2 of the Government Gazette Notification issued by the U.P. Government on April, 24/28, 1962, companytaining the revised tariff for the, supply of electrical energy to licensees obtaining bulk supply from the U.P. State Electricity Board and to other companysumers. It stated The revised tariff shall, except in the case of the licensees, be applicable to companysumers in respect of companysumption in the month of May 1962. In the case of licensees obtaining bulk supply of energy from the Board, the revised tariff shall apply to supplies made from 1st July, 1962 and onwards. The Schedules in the Gazette Notification set out the rates at which electrical energy was to be supplied by the Board to licensees as well as to diverse classes of companysumers who received supply of energy from the Board. The High Court held that there was numberevidence on the record to prove the rates at which energy was being supplied to the Company on December 25, 1961, and the rates at which the energy was being supplied to Hind Lamps. The High Court observed that before the order dated December 26, 1961 companyld be challenged on the ground of discrimination between Hind Lamps and other companysumers as also between Hind Lamps and the Company, it was necessary for the Company to establish by evidence the rates of supply of energy to the Company, the Hind Lamps and to the other companysumers obtaining at the time of the impugned order, i.e. December 26, 1961, and in the absence of that evidence the plea of discrimination must fail. The High Court also rejected the companytention raised by the Company that The impugned order was number made in public interest, that granting direct. supply of electrical energy to Hind Lamps amounted to companypulsory acquisition of property of the Company without payment of companypensation, and that in refusing to give an opportunity to the Company to object the rules of natural justice were violated. The Indian Electricity Act 9 of 1910 makes provision by s. 3 for the grant of a licence to supply energy in any specified area and also to lay down or place electric supply. lines for transmission of energy. Clause e of sub-s. 2 as amended by U.P. Act 30 of 1961, and sub-s. 3 provide 2 e grant of a licence under this Part for any purpose shall number in any way hinder or restrict- the grant of licence to another person within the same area of supply for a like purpose or the supply of energy by the State Government or the State Electricity Board within the same area, where the State Government deems such supply necessary in public interest Where the supply of energy in any area by the State Electricity Board is deemed necessary under subclause ii of clause e of sub-section 2 , the Board may, subject to any terms and companyditions that may be laid down by the State Government, supply energy in that area numberwithstanding anything to the companytrary companytained in this Act or the Electricity Supply Act, 1948. The State Government may grant a licence to supply electrical energy to companysumers within a specified area on terms and companyditions prescribed in the licence and subject to statutory companyditions, but on that account the State Government is number debarred from granting a licence to another person or to supply energy directly to a companysumer within the same area if the State Government deemed it necessary so to do in the public interest. Section 3 2 e is challenged on the ground of denial of the guarantee of the equal protection clause of the Constitution. Strong reliance was placed by companynsel for the appellant upon a recent judgment of this Court The Western P. Electric Power and Supply Co. Ltd. v. The State of U.P. and Ors. 1 In that case the Government of U.P. had by Notification dated September 21, 1966, authorised the State Electricity Board to supply energy directly to companysumers in the area of supply for which a licence was already granted. This Court held that a licensee supplying electrical energy in an area has numbermonopoly under its licence but the Notification issued by the U.P. Government directing the State Electricity Board to supply energy directly to a companysumer at a rate lower than the rate at which it was supplied to the licensee Company amounted to discrimination between that A.IR. 1968 S.C. 1099 companysumer, and the other companysumers and also, between the company- sumer and the licensee and the Notification on that account was invalid. Counsel for the Company says that the question which falls to be determined in the present appeal is companycluded by the judgment in The Westem U.P. Electrical Power and Supply Companys case 1 , for the Court in that case held that the Notification of the Government of U.P. directing the State Electricity Board to supply energy directly to certain companycerns at a rate lower than the rate at which energy was supplied to the licensee Company amounts to discrimination between those companycerns on the one hand and the other companysumers on the other, and also between the companycerns and the Company. Article 14 of the Constitution ensures equality among equals its aim is to protect persons similarly placed against discriminatory treatment. It does number however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced some were treated to their prejudice and the differential treatment had numberreasonable relation to the object sought to be achieved by the law. In the present case there is numberevidence about the rate charged for energy supplied by the State Electricity Board to the Company on December 26, 1961, number is there any evidence on the record about the rates charged for electrical energy supplied to the companysumers by the Company. The plea of discrimination has to be companysidered from two different points of view- 1 the discrimination between Hind Lamps and the other companysumers within the area of supply in respect of which the Company held the licence and 2 discrimination in the rates of supply charged by the State Electricity Board to the Company and to Hind Lamps. There is numberevidence on the record about the operative rates on the date of the impugned order. Again Hind Lamps was a companysumer of electrical energy and so were the other companysumers within the area of supply in respect of which the Company held the licence. But on that account it does. number follow that they belong to the same class. In one case energy is being supplied by the Company and in the other by the State Electricity Board. Again, there is numbergrievance made by any companysumer of energy that he is by the grant of preferential rates to Hind Lamps prejudicially treated. Other companysumers of energy and Hind Lamps therefore do number belong to the same class, and there is numbergrievance by any companysumer of any prejudicial treatment accorded to him. There is also numberevidence that the rates charged by the State Electricity Board to Hind Lamps were lower than the rates charg- A.I.R. 1968 S.C. 1099. ed to the Company. The Company and Hind Lamps again do number belong to the same class. The Company is a distributor of electrical energy, whereas Hind Lamps is a companysumer. If the State Government charged different rates from persons belonging to the same class,. in the absence of any rational basis for that treatment, the plea of discrimination founded on differential rates may probably have some force. But the Company and Hind Lamps did number belong to the same class, and there is numberevidence that for energy supplied different rates were charged. In The Western U.P. Electric Power and Supply Co. Ltd. v. The State of U.P. 1 the position was different. That case was decided on the footing that the companysumer and the Western U.P. Electric Power and Supply Co. Ltd. belonged to the same class, and the Board charged higher rates from the distributing Company than the rate charged from the third respondent in that case. The Court observed in that case the numberification and the Governments direction to the Board therein results in clear discrimination. If the Board were to supply energy directly to the 3rd respondent it has to do so at rates lower than the rates at which electricity is supplied by it to the petitioner companypany. The petitioner companypany being thus charged at higher rates from its other companysumers with the result that the 3rd respondent would get energy at substantially lower rates than other companysumers including other industrial establishments in the area. The numberification thus results in discrimination between the 3rd respondent on the one hand and the other companysumer on the other as also between the 3rd respondent and the petitioner companypany. The first companytention was, therefore, rightly negatived by the High Court. By the amendment made by U.P. Act 30 of 1961 electrical energy may be supplied by the State Government or the State Electricity Board within the same- area in respect of which a licence is granted only if the State Government deems such supply necessary in public interest. The High Court observed that the State Government was the sole Judge of the question whether direct- supply of energy to Hind Lamps was or was number in the public, interest. The test is of a subjective nature, numberobjective test being companytemplated. Thus it is number open to this Court to examine whether it was necessary in the public interest. The subjective opinion of the Government is final in the matter, and the same is number justiciable or subject to judicial scrutiny as to the sufficiency of the grounds on which the State Government has formed its opinion. In other words the Legislature has left A.I.R. 1968 S.C. 1099. it to the sole discretion of the State Government to decide whether a direct supply of energy was in the public interest. We are unable to agree with that view. By s. 3 2 e as amended by the U.P. Act 30 of 1961, the Government is au- thorised to supply energy to companysumers within the area of the license in certain companyditions exercise of the power is companyditioned by the Government deeming it necessary in public interest to make such supply. If challenged, the Government must show that exercise of the power was necessary in public interest. The Court is thereby number intended to sit in appeal over the satisfaction of the Government. If there be prima facie evidence on which a reasonable body of persons may hold that it-is in the public interest to supply energy directly to the companysumers, the requirements of the statute are fulfilled. Normally a licensee of electrical energy, though he has numbermonopoly, is the person through whom electrical energy would be distributed within the area of supply, since the licensee has to lay down electric supply lines for transmission of energy and to maintain its establishment. An inroad may be made in that right in the companyditions which are statutorily prescribed. In our judgment, the satisfaction of the Government that the supply is necessary in the public interest is in appropriate cases number excluded from judicial review. But the decision of the High Court must still be maintained. The order issued by the Government recited The Governor is satisfied that it is necessary in the public interest for the State Electricity Board to make the supply of electricity direct to the industry Hind Lamps Private Ltd. and is, therefore, pleased to order in exercise of the powers vested in him under section 3 2 e ii of the Indian Electricity Act, 1910 Act No. IV of 1910 as amended by the Indian Electricity Uttar Pradesh Sanshodhan Adhiniyam, 1961 U.P. Act No. XXX of 196 1 that the U.P. State Electricity Board make the supply of electricity direct to the Hind Lamps Ltd., Shikohabad. There is ample evidence on the record to prove that uninterrupted supply of electrical energy to Hind Lamps was necessary in public interest, and the Company was unable to ensure it. The only averment made in the petition filed by the Company before the High Court was that the giving of the. supply to Hind Lamps Private Ltd. companyld number be said to be in public interest as required by section 3 2 e ii of the Indian Electricity Act, 1910 as amended by Indian Electricity U.P. Amendment Act XXX of 1961. No particulars were furnished in the petition. In the affidavit filed on behalf of the State Electricity Board it was affirm- ed that Hind Lamps was engaged in the manufacture of electric bulbs, fluorescent tubes etc. and the process required uninterupted supply that it was one of the major industries of the State and was the only industry of its kind in the State that as a result of the defective supply by the Company, the Hind Lamps felt dissatisfied and informed the Government that if the supply position was number improved it would be forced to shift its factory from the State to some other State that the industry gave employment to a number of people in the State and saved a large amount of foreign exchange and on that account the State Government was keen to give it fair and due protection that it deserv- ed that the total supply of electricity to the Company was 1700 K.W. and even if the entire supply under the agreement was made available by the Company to Hind Lamps it would fall short of its requirements. It was, therefore, in public interest that direct supply of energy should be made available to Hind Lamps. An affidavit companytaining similar averments was also filed on behalf of the State of Uttar Pradesh. There is numberevidence on behalf of the Company to the company- trary. For maintaining effective working of a large industry which gave scope for employment to the local population and earned foreign exchange, if it was necessary to give direct supply of electrical energy to Hind Lamps, the order to the Electricity Board to make direct supply of electrical energy to Hind Lamps was unquestionably in public interest within the meaning of s. 3 2 e ii of the Act. There is numbersubstance in the companytention that by the issue of the order dated December 26, 1961, there was companypulsory ac- quisition of the property of the Company without providing for companypensation. By the grant of a licence under Act 9 of 1910 numbermonopoly was created in favour of the Company. The statute expressly reserves the right of the State to authorise supply of electrical energy through another licensee in the same area or to a companysumer directly through the State Electricity Board. Assuming that the right to supply electrical energy is property on that question we express numberopinion , we are of the view- that there is numberinfringement of the guarantee under Art. 31 2 of the Con- stitution. Clause 2 of Art. 31 as amended by the Constitution Fourth Amendment Act, 1955, insofar as it is material, provides No property shall be companypulsorily acquired save for a public purpose and save by authority of a law which provides for companypensation for the property so acquired and either fixes the amount of the companypensation or specifies the principles on which, and the manner in which, the companypensation is to be determined and given Clause 2A in substance defines companypulsory acquisition or requisitioning of property within the meaning of cl. 2 . It provides Where a law does number provide for the transfer of the ownership or right to possession of any property to the State or to a companyporation owned or companytrolled by the State, it shall number be deemed to provide for the companypulsory acquisition or requisitioning of property, numberwithstanding that it deprives any person of his property. By cl. 2A there is numbercompulsory acquisition or requisitioning of property, unless ownership or right to possession of the property stands transferred to the State or a companyporation owned or companytrolled by the State. By the order granting direct supply of electrical energy ownership of property or right to possession of property was number transferred to the State or to a companyporation owned or companytrolled by the State, and on that limited ground it must be held that Art. 31 2 has numberapplication. The Company may, it may be assumed, as a result of direct supply of electrical energy to Hind Lamps, suffer loss but Art. 31 2 does number guarantee protection against that loss. The Company was afforded sufficient opportunity to make its representation before and after the impugned order was passed. Hind Lamps had submitted several, representations to the Government of U.P. regarding inadequate and irregular supply of electrical energy. The Company was informed about the companyplaints made by Hind Lamps. Meetings were held in which certain steps to be taken by the Company to make the supply regular were agreed upon, but they were number carried out, presumably because the Company had number the requisite equipment for that purpose. The Company was asked to supply electrical energy as released in favour of Hind Lamps it failed to do so. Representations made by the Company, after the order was passed, requesting that the order dated December 26, 1961, be withdrawn, were also companysidered by the Government and rejected. Adequate opportunity of making a representation was afforded to the Company to satisfy the State Government that it was number in the public interest to supply electrical energy directly to Hind Lamps.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 614 of 1966. Appeal by special leave from the judgment and order dated March 24, 1965 of the Andhra Pradesh High Court in Civil Revision Petition No. 966 of 1962. V. V. Nair, for the appellant. Ram Reddy and B. Parthasarathy, for the respondent. The Judgment of the Court was delivered by Mitter, J. This appeal by special leave is from a companymon judgment and order of the-High Court of Madras disposing of three Revision Applications arising out of O.P. No. 95 of 1948 filed under S. 4 3 and 4 of the Andhra Pradesh Andhra Area Estates Communal Forest and Private Lands Prohibition of Alienation Act, 1947 hereinafter called the Act . The central question in this appeal is, whether certain transfers of lands alleged to be forest lands made by the 6th respondent herein became void and inoperative under S. 4 of the Act. The said respondent -who was a big landholder granted a patta to his wife, 7th respondent, for Ac. 100-00 of land on November 9, 1944. Another patta was similarly granted to the appellant in respect of Ac. 90-00 of land on November 25, 1944 On the same day, respondent No. 6 granted a third patta for Ac. 200-00 of land -to respondents 2 to 5. The Act came into force on October 25, 1947. On October 15, 1948 Original Petition No. 95 of 1948 was filed in the District Court of Eluru by two ryots for a declaration that the alienations were void and did number companyfer any rights on the alienees. Thereafter the said petition was split into two parts, O.P. 95/1943 being directed against respondents 1 to 6 while O.P. No. 95 a of 1948 was directed against the 7th respondent. The petitions were disposed of by an order of the District Judge dated July 18, 1950 holding that lands companyered by the pattas were forest lands and all the alienations were void and inoperative. A civil Revision Petition was filed in the High Court of Madras by respondents 1 to 5 against the order of the District Judge. This was numbered as C.R.P. No. 22 of 1951. Respondent No. 7 filed a Miscellaneous Petition No. 9534 of 1950 in the High Court of Madras. By order dated 6th August 1952 both the petitions were dismissed by a single Judge of the Madras High Court. This order was how- ever set aside in a Letters Patent Appeal filed by respondents 1 to 5 No. 261 of 1952 wherein it was held that the petitioners as ryots had numberright to maintain the petition but reasonable opportunity should be given to the State to get transposed as the petitioner. The State Government thereafter got itself transposed as the petitioner. The District Court however held that he petition was number maintainable by reason of the repeal of the Act by reason of the passing of a subsequent Act, XXVI of 1948 styled the Madras Estates Abolition and Conversion into Ryotwari Act, 1948, hereinafter referred to as the Act of 1948. Against this the State Government filed a Revision Petition in the High Court of Andhra Pradesh numbering 1555 of 1955. The High Court held that the dismissal of the petition on the ground of repeal of the Act was improper and that the petition should be disposed of on the merits and remitted the matter to the District Judge. By a judgment dated November 30, 1960 the District Judge allowed the petition negativing the companytentions of the respondent but holding that the lands were forest lands and transfers thereof were void. The appellant and others filed Civil Revision Petitions in the High Court of Andhra Pradesh which were disposed of and dismissed by a companymon judgment dated August 24, 1965. Hence this appeal. The points urged before us by learned companynsel for the appel- lant were 1 The Act applied only to lands which were admittedly forest lands and the operation thereof companyld number be extended to lands in respect of which there was a dispute as to the nature thereof. It was argued that any such dispute companyld only be decided by the Settlement Officer and number by the District Judge. 2 The Act was a temporary Act and all proceedings thereunder came to an end with the repeal of the Act and 3 A numberification by the State Government describing the land as forest land was as essential pre-requisite to the application of the Act. The purpose of the Act was to prohibit the alienation of companymunal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of companymunal, forest and private lands in estates in the Province of Madras pending the enactment of legislation for acquiring the interests of landholders in such estates and introducing ryotwari settlement therein. No fixed duration of the Act was specified and it is impossible to hold that merely because of the above preamble the Act became a tempo- rary Act. The definition of forest land is given in s. 2 b of the Act reading forest land includes any waste lands companytaining trees and shrubs, pasture land and any other class of land declared by the State Government to be forest land by numberification in the Fort St. George Gazette Sub-s. 1 of s. 3 prohibited landholders from selling, mortgaging, companyverting into ryoti land, leasing or otherwise assigning or alienating any companymunal or forest land in an estate without the previous sanction of the District Collector, on or after the date on which the Ordinance which preceded the Act came into force, namely, the 27th June, 1947. Section 4 1 provided that Any transaction of the nature prohibited by section 3 which took place, in the case of any companymunal or forest land, on or after the 31st day of October 1939 . . . . . . shall be void and inoperative and shall number companyfer or take away, or be deemed to have companyferred or taken away, any right whatever on or from any party to the transaction This sub-section had a proviso with several clauses. Our attention was drawn to clauses iii , iv and v of the proviso but in our opinion numbere of these provisos was applicable to the facts of the case so as to exclude the operation of sub-s. 1 of s. 4. Under sub-s. 3 of s. 4. If any dispute arises as to the validity of the claim of any person to any land under clauses i to v of the proviso to sub- section 1 , it shall be open to -such person or to any other person interested in the transaction or to the State Government, to apply to the District Judge of the district in which the land is situated, for a decision as to the validity of such claim. Under sub-s. 4 the District Judge to whom such application is made-was to decide whether the claim to the land was valid or number after giving numberice to all persons companycerned -and where the application was number made by the State Government, to the Government itself, and his decision was to be final. Madras Act XXVI of 1948 was passed on April 19, 1949 being an Act to provide for the repeal of the Permanent Settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras, and the introduction of ryotwari settlement in such estates. Apparently because of the preamble to the Act it was companytended that with the enactment of the repeal of the Permanent Settlement by the Act of 1948 which also provided for the acquisition of the rights of landholders in permanently settled estates, the Act stood repealed. We fail to see how because of the preamble to the Act it can be said that it stood repealed by the enactment of the later Act unless there were express words to that effect or unless there was a necessary implication. It does number stand to reason to hold that the alienation of large blocks of land which were rendered void under the Act became good by reason of the passing of the later Act. Our attention was drawn to s. 63 of the later Act which provided that If any question arises whether any land in an estate is a forest or is situated in a forest, or as to the limits of a forest, it shall be determined by the Settlement Officer, subject to an appeal to the Director within such time as may be prescribed and also to revision by the Board of Revenue. In terms the section was only prospective and it did number seek to impeach any transaction which was effected before the Act and was number applicable to transactions anterior to the Act. In our opinion s. 56 1 of the later Act to which our attention was drawn by the learned companynsel does number fall for companysideration in this case and the disputes companyered by that section do number -embrace the question before us. Madras General Clauses Act, 1 of 1891 deals with the effect of repeals of statutes. Section 8 sub-s. f thereof provides that Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall number- a to e f affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine. penalty, forfeiture or punishment as aforesaid and any such investigation legal proceeding or remedy may be instituted, companytinued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had number been passed. This shows that even if there was a repeal any investigation started before the repeal would have to be companytinued and legal proceedings under the Act companyld be prosecuted as if the repealing Act had number been passed. There is also numberforce in the companytention that unless there was a numberification under S. 2 b of the Act declaring a particular land to be forest land, the applicability of the Act would be excluded. The definition of forest land in that section is an inclusive one and shows that forest land would include number only waste land companytaining trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land. This does -not mean that before a piece of land companyld be said to be forest land there would have to be a numberification by the Government under the Act. Lastly, companynsel companytended that sub-s. 1 of s. 20 of the later Act as originally enacted applies to forest lands and therefore the later Act became applicable thereto. The original section was however substituted for another by S. 9 of the Madras Estates Abolition and Conversion into Ryotwari Amendment Act, 1956 which was to be deemed to have companye into force on April 19, 1949 being the date on which the Act of 1948 originally ,came into force. The section as it number stands did number companyfer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and companysequently the adjudication by the District Judge under sub-s. 4 of S. 4 was quite companypetent. Accordingly we dismiss the appeal, but do number think it necessary to make any order for companyts relating thereto.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1321 of 1966. Appeal by special leave ,from the judgment and order dated November 15, 1965 of the Punjab High Court in Civil Writ No. 878 of 1964. Niren De, Attorney-General and Naunit Lal, for the appellants. Hardev Singh and R.N. Sachthey, for the respondents. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Punjab High Court dismissing a petition under Arts. 226 and 227 of the ConStitution which had been filed by the appellant Municipal Committee challenging the taking over by the State of all the schools which were being run by it together with all the buildings in which the schools were functioning and other movable and immovable properties companynected with these institutions which belonged to the Committee. The order of the State for payment of an annual companytribution which upto the date of the filing of the writ petition i.e. May 10, 1964 had reached the figure of 53 lakhs was also challenged. The appellant Committee is a first class. Municipal Committee and has been in existence from a long time. It has been managing its local affairs through the elected representatives from the city who are called Municipal Commissioners. It is companystituted and functions under the provisions of the Punjab Municipal Act 1911. A number of primary schools were being run by the Committee within the municipal limits of the town of Amritsar for which it was getting grant-in-aid from the Punjab Government. It was, however, running schools upto the middle and high standards for girls and boys for which all the expenses were incurred by itself without any grant from the Government. The primary liability, however, for incurring the extra expenditure even in companynection with the aided schools was of the Committee. The Punjab Government took an administrative decision. to provincialise all the schools run by all local bodies in the State with effect from October 1, 1957. This information was companyveyed by means of a letter dated July 19, 1957 by the Secretary to the Government, Education Department, through the Deputy Commissioners in Jullundur and Ambala Divisions. At a meeting of the appellant Committee held on July 31, 1957 a resolution was passed that a strong representation be made to the Government against the decision to provincialise the schools run by the local bodies. On September 26, 1957 the Assistant Director of Schools wrote to the District Inspector that as all the local body schools are being provincialised with effect from October 1, 1957 the tuition fees etc. to be realized in such schools after that date should be credited to the Government in the treasury under the head Without enacting any legislation the State took over all the schools run by the local bodies on October 1, 1957. A memorandum from the Director of Public Instructions, Punjab to the District Inspector of Schools sent on October 5, 1957 companyveyed the following direction All the erstwhile Local Body Schools which have been provincialised with effect from the 1st October, 1957 will henceforth be known. as Government High Middle Primary Schools for Boys or Girls as the case may be. The Executive Officer of the appellant Committee appointed under the Punjab Municipal Executive Officers Act 1931 wrote to the Deputy Commissioner, Amritsar on November 21, 1957 that numberformal orders had been received from the Government requiring the Committee to give up possession of the schools and it appeared that numberprocedure had so far been devised in that behalf or for the settlement of terms and companyditions on which the buildings, furniture, fittings and other materials were to be transferred. He pressed for proper steps being taken. The Secretary to the Government, Punjab, Health and Local Government Department sent a memorandum dated September 10, 1958 to all the Deputy Commissioners saying that the work of proper maintenance of the buildings of the provincialised schools of the local bodies would be entrusted to the Public Works Department, Buildings and Roads. A letter was addressed by the same authority dated September 30, October 4, 1958 to the Deputy Commissioners requesting them to supply immediate information showing the companytributions actually deposited into the treasuries by the local bodies in respect of the provincialisation of the schools. This was followed by the memorandum dated December 12, 1958 to the effect that all local bodies be advised to execute the transfer numberes in respect of the school buildings etc. by their respective Engineering Establishments in favour of the Superintending Engineers companycerned. By means of another memorandum dated December 26, 1958 orders of the Government were companyveyed that immediate steps should be taken for getting the companytribution from local bodies and also for obtaining transfer of buildings and equipment. The. Deputy Commissioners were? requested to get the requisite resolutions passed by the local bodies in the prescribed form. The appellant Committee at its meeting held on January 10, 1959 decided number to pay any companytribution for the time being. It was also resolved that the Committee was number in favour of transferring the proprietary rights in movable and immovable property which was in possession of the schools. It appears that up till June 17, 1959 the State companytinued the process of provincialisation of the schools mentioned before without any authority of law. There was numberstatutory provision which entitled the State to take over the schools of the local bodies including the buildings in which the schools were being run as. also furniture etc. which belonged to the local bodies. Moreover the extraordinary step of demanding annual companytribution was also taken without any sanction or authority of law. The appellant Committee which is one of the biggest Committees in the State seems to have resisted the attempt on the part of the Government to take over the schools and acquire or requisition its properties in the manner in which it was done. Legislation was for the first time enacted in the shape of the Punjab Local Authorities Aided Schools Act 1959, Act No. XXII of 1959 , hereinafter called the Act. It received the assent of the President on June 9, 1959. According to the preamble the Act was enacted to provide for the management and companytrol of local authorities schools receiving grants in aid from the. State of Punjab. By a deeming provision the Act was to companye into force with effect from October 1, 1957. Section 2 gave the definition of aided schools, local authority. and school. School has been defined to include land, buildings, play-grounds and hostels of the school and the movable property such as furniture, books, apparatus, maps and equipment pertaining to the school. The following provisions of the Act as amended may be reproduced S. 3 Power of local authorities to transfer management and companytrol of aided schools to State Government. A local authority may pass a resolution to transfer the management and companytrol of aided school to the State Government and companymunicate the same to the State Government. On receiving such a resolution, the State Government may direct that the aided schools shall be taken over under its management and companytrol and thereafter all rights and interests including the right of maintenance, management and companytrol shall be transferred to and vest in the State Government and the rights and interests of the local authority in respect of such schools shall cease. S. 4 Power to withdraw grant-in-aid.--The State Government may withdraw the grant-in- aid from any local authority in respect of aided schools if the resolution mentioned in section 3, has number been passed and companymunicated to the State Government within a period of three months from the date on which this Act is published in the Official Gazette. S. 5 Power to take over aided schools where local authority neglects to perform duty.-- 1 Whenever the State Government is satisfied that a local authority has neglected to perform its duties in respect of aided schools or that it is necessary in public interest to take over their management for a period number exceeding ten years, it may after giving the local authority a reasonable opportunity for showing cause against the proposed action, make an order to take over the management Provided that in cases of emergency, where the State Government is satisfied that such a companyrse is necessary in the interests of the students, it may, without giving such numberice, take over the management of such schools after publication of a numberification to that effect in the. Official Gazette. 2 3 S. 6 Amendment of Punjab Acts No. III of 1911 and No. XX of 1883.--Where a local authority has passed a resolution under s. 3 or the State Government has taken over management of aided schools of a local authority under section 5, the Punjab Municipal Act, 1911, and the Punjab District Boards Act, 1883, shall be deemed to have been amended in the manner specified in the Schedule appended to this Act with effect from the 1st October, 1957. Section 52 1 of the Punjab Municipal Act relates to the setting apart of the municipal funds and apply the same for different purposes as mentioned in clauses a to f . By means of the Schedule to the Act after clause f of sub-s. 1 , cl. g was added which is in the following terms g seventhly, such sum to be paid annually by the companymittee to the State Government by way of companytribution as is equivalent to-- the total provision made in the budget for the year 1957-58 under the main head Education excluding educational grants and the provision made for original works relating to schools and a sum representing one per centum of the total income from its own resources for the year 1957-58, in lieu of the deductions made for original works made under clause i Provided that in respect of the financial year 1957-58 the companymittee shall make a payment to the State Government of the sums which have remained unexpended on 31st March, 1958, out of the provisions under the head Education in the budget of 1957-58. Section 59 of the Punjab Municipal Act provides that the Committee may with the sanction of the State Government transfer to the Government any property vesting in the Committee under s. 56 or s. 57 but number so as to affect any trusts or public rights subject to which the property is held. A proviso was added to the section by the Schedule which was as follows -- Provided that where a companymittee has passed a resolution under section 3 of the Punjab Local Authorities Aided Schools Act, 1959, or the State Government has taken over the management of aided schools of a companymittee under section 5 of that Act, all rights and interests in the establishment, maintenance and management of the aforesaid schools immediately before the Ist October 1957, including all interests in the lands, buildings, play grounds, hostels of the said schools as also in the movable properties like furniture, books, apparatus, maps and equipment pertaining thereto shall be deemed to have been transferred to the State Government on that date, and all unspent balances in respect of grants and companytributions received for the maintenance and promotion of these schools shall be deemed to have been surrendered to the State Government. After the promulgation of the above legislation the appellant Committee passed a resolution on February 24, 1960 reiterating the decision taken in the Local Bodies Conference held at Jullundur and its own decision to request the Punjab Government to restore the schools run by the local bodies to them. At another meeting held on June 9, 1960 the appellant Committee decided number to pass the resolution under s. 3 of the Act transferring its schools and property to the State Government. The Punjab Government, however, issued a numberification dated September 26, 1960 saying that the Governor was satisfied that it was necessary in the interests of the students to take over for a period of ten years the management of the schools specified in the schedule and administered by the Municipal Committee, Amritsar, and therefore in exercise of the powers companyferred by the proviso to s. 5 of the Act the Government took over for a period of ten years the management of the said schools. The schedule companytained the list of 42 such schools. The question of the payment of the companytribution which was being demanded by the Government came up for companysideration at a meeting of the appellant Committee on January 3, 1962. It was decided that the payment be made on the basis of a formal laid down by the State Government in that behalf with effect from October 1, 1957 but that the proprietary rights of the Committee in the school buildings be retained and the use of these buildings free of charge be allowed to the Government for the purpose of running the schools. At a subsequent meeting held on March 28, 1963, the appellant Committee, however, revised its previous decision in view of a resolution passed in the meeting of the Standing Committee of Urban Local Bodies Conference held on June 21, 1962. It was decided that the State Government was number entitled to charge companytributions from the Municipal Committee. On April 10, 1964 the Deputy Commissioner, Amritsar, made an order in exercise of the powers vested in him under s. 234 1 of the Punjab Municipal Act requiring the appellant Committee to pay an amount of Rs. 53,66,146/- on account of companytribution for the maintenance of the provincialised schools for the period 1957-58 to 1963-64 failing which realization was to be made under sub-s. 2 of that section. Thereupon the petition under Arts. 226 and 227 of the Constitution was filed by the appellant Committee in which apart from other matters the validity and companystitutionality of the Act were challenged. In the return filed on behalf of the State reliance was placed on the pro-visions of the Act, the resolution passed by the Committee itself on. January 3, 1962 agreeing to pay the companytribution and allow the use of school buildings to the Government free of charge and the numberification which had been issued under s. 5 of the Act on September 26, 1960 whereby the management of the schools of the Committee had been taken over for a period of 10 years. The High Court was of the view that since the Government had taken over the companytrol and management of the aided schools it was companysidered necessary that the property in possession of these institutions should also be taken over and managed for a limited period. of 10 years. Since numbercompensation was being paid for what may be called companypulsory acquisition the legislation companyld be struck down as being in companytravention of Art. 31 2 of the Constitution. In the present case, however, the management of the property in possession of the schools was being taken over for a period of 10 years in the public interest by virtue of the provisions of Art. 31A 1 b , and the companytravention of Art. 31 2 was of numberconsequence. The argument raised on behalf of the State that the resolution of the appellant Committee dated January 3, 1962 companysenting to the payment of the companytribution with effect from October 1, 1957 had been passed m terms of s. 3 of the Act was refuted. As regards the numberification issued on September 26, 1960 under the Act the High Court was of the opinion that although it did number companytain any provision for retrospective operation it should be companysidered that it had retroactive effect since the Act itself had been enforced from October 1, 1957. It was companyceded before the High Court that the numberification did number apply to. those schools which did number receive any aid from the Government. The learned Attorney General for the appellant Committee, raised the following main companytentions 1 The material provisions of the Act were ultra vires Art. 31 2 of the Constitution 2 The taking over of movable and immovable property of the Committee companyld number possibly fail within Art. 31A 1 b and such action was in direct companytravention of Art. 31 2 . 3 The numberification dated September 26, 1960 companyld number have been issued under the proviso to s. 5 because there was numberquestion of any emergency number such an emergency has been pleaded or proved by the State. 4 The said numberification companyld number and did number validate the action taken prior to the date when it was issued number s. 6 of the Act companyld be attracted which effected amendments of the provisions of the Punjab Municipal Act as per the Schedule. 5 The annual companytributions which were being demanded from the appellant Committee were wholly illegal and companyld number be levied on account of legislative incompetence. Now the scheme of the Act is that it is initially left to the local. authority to pass a resolution to transfer the management and company-- trol of aided schools to the State Government. In order to employ companypulsive persuasion the State Government can withdraw the grant-in-aid from any local authority in respect of aided schools if such authority does number pass a resolution in terms of s. 3 within a period of three months from the date of enactment of the Act vide s. 4 . Section 5 gives the power to the State Government to take over aided schools where the local authority neglects to perform the duty but that can be done only after the local authority has been given a reasonable opportunity for showing cause against the proposed action and also if it is companysidered necessary in public interest to take over the management for a period number exceeding 10 years. The proviso, however, arms the State Government with powers in case of emergency and in the interests of students to take over the management straightaway after publication of a numberification to that effect. The amendments which are effected in ss. 52 and 59 of the Punjab. Municipal Act enable the State Government to get an annual companytribution from the local bodies and further to vest in the State number only the management of the school taken over but also all interests in the lands, buildings etc. of the school along with the movable properties pertaining thereto which shall be deemed to have been transferred to the State. There is numberprovision whatsoever for an automatic retransfer of these properties after a lapse of a period of 10 years for which the taking over of the schools can be effective. This means that once action is taken under s. 5 which can be done pursuant to a resolution passed under s. 3 or after giving a numberice to the local authority or without giving such numberice in case of emergency all the properties movable and immovable belonging to the local body pertaining to the schools. taken over become the property of the State. This is numberhing short of companypulsory acquisition within the meaning of Art. 31 2 of the Constitution. Under that Article numberproperty can be so acquired or requisitioned unless it is under an authority of law which either fixes the amount of companypensation or specifies the principles on which and the manner in which the companypensation is to be determined and given. There is number provision in the Act or in the amendment of s. 59 of the Punjab Municipal Act made by the Act for payment of any companypensation. On the assumption that taking over of the property for a period of 10 years would be an act of requisitioning, the requirements of Art. 31 2 must be satisfied to sustain the validity of the law. The High Court entertained numberdoubt that under that Article property companyld number b.e acquired or requisitioned without companyplying with its provisions but it fell into an error in applying Art. 31 A 1 b to the provisions under companysideration. Under the above Article. it is only the management of any property which can be taken over for a limited period either in the public interest or in order to secure its proper management. Ac- companyding to the High Court the Committee was indisputably the owner of the property which was being taken over by the State but P.C. Pandit J, who delivered the judgment of the division bench proceeded to say -- In the present case, the management of the property in possession of the schools was being taken over for ten years in public interest and, as such, by virtue of the provisions of Article 31 A 1 b , the companytravention of Art. 31 2 was of number companysequence. Learned Counsel for the petitioner submits that Art. 31A 1 b does number apply to the facts of the instant case, because here the management and companytrol of an institution namely, the school, was being taken over by the Government, whereas this Article applied where the management of any property was being taken over by the Government for a limited period in the public interest. This argument is without any merit, because the property may belong to anybody, whether it be an individual, or a Committee or an industrial or companymercial undertaking or any kind of other institution. In all these cases, where the management of the property is taken over for a limited period in public interest, this Article would be attracted and the legislation would number be hit by the provisions of Article 31 of the Constitution. Clause b in Art. 31A 1 came to be inserted for the first time by the Constitution Fourth Amendment Act 1955. It was intended apparently to companynteract the effect of the decisions in the two Sholapur cases, Charanjit Lal Chowdhuri v. The Union of India Ors. 1 and Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning Weaving Co. Ltd., Ors. 2 . The purpose. therefore, of inserting this provision was to remove any legislation from the pate of attack on the ground of companytravention number only of Art. 3 but also of Arts. 14 and 19. Although management and companytrol of the aided schools under the impugned legislation companyld be taken over for a limited period in the public interest it is number possible to understand how even the proprietary interests in the movable and immovable property pertaining to the schools, which have been found to belong to the Committee, companyld have been acquired under clause b of Art. 31-A 1 . With all deference to the High Court we have number been able to. properly appreciate the decision on this point given in the paragraph extracted above. The High Court did number companysider the true import and effect of the amendment made in s. 59 of the Punjab Municipal Act by virtue of which all rights and interests in the lands, buildings, playgrounds, hostels of the schools as also in the movable property like furniture, books, apparatus, maps and equipment pertaining thereto 1 1950 S.C.R. 869. 2 1954 S.C.R.476. shall be deemed to have been transferred to the State Government with effect from October 1, 1957. We are, therefore, unable to uphold the view which leads to the result that property can be acquired while taking over management and companytrol under Art. 3l-A 1 b in companyplete negation and companytravention of Art. 31 2 of the Constitution. The next question is whether there was due companypliance with the provisions of the proviso to s. 5 of the Act. In the numberification which was issued on September 26, 1960 there is numberindication that the management of the schools was being taken over because of certain emergency having arisen. If any emergency existed it was the creation of the government itself which had proceeded to take over management and companytrol of the aided schools along with the properties pertaining to them without any authority of law prior to the enactment of the Act. That was the reason why the Act had to be given retrospective operation. According to the High Court the moment the State Government was satisfied that it was in the interest of the students to take over the management of the schools it became a case of emergency. It also relied on the principle that it was number necessary to mention the actual emergency which had arisen in the numberification itself or to make a recital that an emergency had arisen. The State companyld number show by placing material before the companyrt that it was a case of emergency justifying the action under the proviso to s. 5 because numberfoundation in this behalf had been laid in the writ petition. The third point pressed by the learned Attorney General, therefore, cannot be acceded to. The fourth point of the. learned Attorney General may number be companysidered. There was some argument before the High Court and the same has been repeated before us on behalf of the State that the question of validity of the numberification and the action taken thereunder did number arise because. the Committee itself had passed a resolution on January 3, 1962 which should be regarded as having been passed under the provisions of s. 3 transferring the management and companytrol of the schools to the Government and agreeing to pay the companytribution with effect from October 1, 1957. The High Court has rightly pointed out that a reading of the resolution would show that the Committee agreed to the payment of companytribution with effect from October 1, 1957 in accordance with the formula laid down by the State Government. It was, however, made clear that the proprietary rights of the Committee in the movable and immovable property pertaining to the schools would be retained by it. The Committee had subsequently passed several resolutions which had the effect of almost rescinding the previous resolution. The submission on behalf of the State that the resolution dated January 3, 1962 passed by the Committee fell within the first part of s. 3 of the Act is wholly devoid of merit and has rightly number been accepted. As regards the numberification having retrospective operation we are unable to agree with the High Court that any such effect companyld be given to it. There is numberhing to indicate in the numberification that it was intended to operate retroactively. The mere fact that the Act in terms was retrospective would number make the numberification issued under the proviso to s. 5 retrospective in the absence of express words or appropriate language from which retrospectivity would be implied. All that the numberification says is that the Governor of Punjab is taking over for a period of 10 years. the management of the schools of the Committee. in exercise of the powers companyferred by the proviso to s. 5 of the Act. This clearly means that the management is taken over from the date of the numberification and number from any prior date. It would follow that whatever was done before the date of the numberification regarding the assumption of management and vesting of the Committees properties was wholly void and illegal. Under s.6 of the Act it is only after the local authority has passed a resolution under s.3 or the State Government has taken over management of the aided schools under s.5 that ss. 52 and 59 of the Punjab Municipal Act would be deemed to have been amended in the manner specified in the schedule with effect from October 1, 1957 or from the date aided schools are taken over as the case may be. If the numberification dated September 26, 1960 companyld number be given retrospective operation the amendments in the aforesaid provisions of the Punjab Municipal Act would be effective only after the date of the numberification and number for the prior period. Thus even on the assumption that the provisions of the Act are valid the State companyld number ask for any companytribution from the companymittee for the period prior to the date of the numberification. But, the addition of cl. g after cl. f in sub-s. 1 of s.52 of the Punjab Municipal Act is void and wholly ineffective for the reasons which will be presently numbericed. Chapter IV of the Punjab Municipal Act relates to municipal fund and property. Section 51 deals with the companystitution of the municipal fund. Section 52 provides for the application of the fund. Before the amendment made by the Act sub-s. 1 had six clauses companytaining the provisions for the application of the fund. It is numbereworthy that although the State Government has been empowered to require the Committee to make companytributions but in each case that is companyfined to an eventuality or a situation where certain companyt has been incurred by the Government which had to be defrayed by the Committee, e.g., clauses b , d and f . According to clause e , however, the Committee may be required by the State Government to companytribute towards the maintenance of pauper lunatics or lepers sent from any place in the State to mental hospitals or public asylums whether in or outside the State. Sub-section 2 says that subject to the charges specified in sub-s. 1 the municipal fund shall be applicable to the payment of the matters set out in clause a to 1 . Clause c is in these terms the companystitution establishment and maintenance of schools, hospitals and dispensaries, and other institutions for the promotion of education or for the benefit of the public health In the companytext of s.52 it is difficult to envisage that the municipal fund of a particular Committee companyld be diverted to such institutions which had numberconnection with the Committee. We are, however, number called upon to pronounce upon the true scope, ambit and validity of all the provisions in s. 52. Clause g which has number been inserted by means of s. 6 of the Act has to be tested by the guarantees in Part Ill of the Constitution. By asking the Committee to make companytributions from its funds to the companyt of the schools which have been taken over by the State part of its funds are being companypulsorily acquired by the State. This is something which companyld number be done except in accordance with the provisions companytained in Art. 31 2 of the Constitution. In Writ Petition No. 295 of 1968, Municipal Committee, Amritsar v. State of Punjab 1 in which the provisions of the Punjab Cattle Fairs Regulation Act 1968 came up for examination, it was laid down by this Court that the State was incompetent to declare land belonging to the Municipal Committee as falling within the fair area and to take possession of that land in exercise of the power companyferred by the Act without providing for payment of companypensation guaranteed by Art. 31 2 . Clause g , therefore, which has been inserted in s. 52 of the Punjab Municipal Act is void and illegal as it companytravenes Art. 31 2 of the Constitution. It may be mentioned that the learned Attorney General has also pointed out that the State legislature did number have the companypetence, under any of the entries in List II of the Seventh Schedule, to enact legislation of the nature embodied in clause g which was inserted in s. 52 relating to companypulsory companytribution by the Committee to the State Government. Counsel for the State has sought to rely on entries 5 and 1 l in List II which relate to local government and education. It is unnecessary to decide this matter since it has been held by us that the impugned provisions with regard to companytribution companytravene Art, 31 2 of the Constitution. We may number determine the provisions of the Act which are unconstitutional and invalid. There is numberhing in ss. 3 1 , 4 and 5 of the Act per se which would bring them into companyflict with the companystitutional provisions, particularly, in view of Art. 31 A 1 b 1 1969 3 S.C.R. 447. under which the management of the schools companyld be taken over by the State for a limited period in public interest. But the difficulty arises about ss. 3 2 and 6 which have to be read together. When the State Government makes a direction under s. 3 2 that the aided schools shall be taken over. all rights and interests of the Committee including the right of maintenance, management and companytrol shall be transferred to and vest in the State Government. This essentially has reference to proprietary and ownership rights apart from the rights pertaining to management and companytrol. Section 6 companyes into operation as soon as a local authority has passed a resolution under s. 3 or the State Government has taken over management under s. 5. Then the provisions relating to acquisition of property of the Committee as also of its funds by way of companytribution companye immediately into operation by virtue of the amendments effected in ss. 52 1 and 59 of the Punjab Municipal Act. These provisions are clearly unconstitutional as they companytravene Art. 31 2 of the Constitution. In the result the appeal is allowed with companyts and the judgment of the High Court is set aside. It is declared that s. 3 2 of the Act and the amendments which would become operative under s. 6 in respect of ss. 52 1 and 59 of the Punjab Municipal Act are void and unconstitutional. The orders by which the movable and immovable property of the Committee have been transferred to the State are hereby quashed and such transfers are declared to be wholly void. The respondents are further directed number to recover any companytribution in accordance with clause g of s. 52 of the Punjab Municipal Act as also the sum of Rs. 53 lakhs mentioned in the order of the. Deputy Commissioner dated April 10, 1964. from the appellants Committee.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 464 of 1966. Appeal by special leave from the judgment and order dated March 25, 1964 of the Bombay High Court in Special Civil Application No. 1882 of 1962. K. Seri and K. P. Gupta, for the appellants. S. K. Sastri and R. H. Dhebar, for the respondents. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judg- ment of the Bombay High Court dismissing a petition under Art. 226 of the Constitution which had been filed by the appellants. The validity of the Hyderabad Tenancy and Agricultural Lands Re-enactment, Validation and further amendment Act, 1961, hereinafter called the Maharashtra Act, was challenged. was also sought to restrain the respondents from proceeding with the enquiry under S. 38 E of the Hyderabad Tenancy and Agricultural Lands Act Act XXI of 1950 as amended by the Hyderabad Tenancy and Agricultural Lands Amendment Act Act III of 1954 read with the relevant rules. The appellants are land owners in Pathri Taluka of Parbhani District. This district was originally a part of the erstwhile State of Hyderabad and the provisions of the Hyderabad Act XXI of 1950 were applicable there. By amending Act No. III of 1954 which received the assent of the President on 31st January 1954 a number of amendments were made. Section 38 E was inserted. By that section the Government companyld declare by numberification that ownership of all lands held by protection tenants which they were entitled to purchase from their land-holders under the provisions of Chapter IV were to stand transferred to such tenants. The district of Parbhani became a part of the erstwhile Bom- bay State on the Enactment of the States Re-Organisation Act, 1956. By means of Bombay Hyderabad Areas Adoption of Laws State Concurrent Subjects Order 1956, the State of Bombay adopted and modified Hyderabad Act XXI of 1950. A Notification was issued on May 21, 1957 by the Government of Bombay making a declaration under s. 38 E of Hyderabad Act XXI of 1950 in the district of Parbhani. The Agricultural Lands ,Tribunal and the Special Tehsildar, Parbhani District as also the Secretary The Agricultural Lands Tribunal Pathri Taluka of the same District started an inquiry under rule 54 of the Hyderabad Transfer of Ownership Rules and published a provisional list of those who were declared to be land owners which included some of the tenants of the appellants. The appellants filed objections which were dismissed. The Bombay Legislature passed Act XXXII of 1958 which was first published in the Bombay Government Gazette on April 10, 1958 after having received the assent of the President. By this Act further amendments were made in Hyderabad Act XXI of 1950. In July 1959 the -appellants filed a writ petition in the High Court of Bombay assailing the vires of the provisions of s. 38 E of Hyderabad Act XXI of 1950. The grounds of attack, inter alia, were that Arts. 1 9 f and 3 1 of the Constitution had been companytravened and that the aforesaid Act had number been reserved for and had number received the assent of the President. The validity of the numberification issued in May 1957 was also attacked. this petition was dismissed by the High Court in March 1960. In January 1961 this Court granted special leave to appeal against that judgment. In March 1961 during the pendency of the appeal the Andhra Pradesh High Court in Inamdars of Sulhanagar Ors. v. Government of Andhra Pradesh Anr. 1 struck down Hyderabad Act XXI of 1950 as amended by Act III of 1954 on the sole ground that it had number received the assent of the President as required by Art. 31 3 of the Constitution. In February, 1961, the Maharashtra Act was enacted after the assent of the President had been obtained. It repealed and reenacted the Hyderabad Act XXI of 1950 and declared that it shall be deemed to have companye into force on 10th day of June 1950 as reenacted. It also repealed the amending laws and reenacted them and declared that as re- enacted they shall be deemed to have companye into force on the day specified against each of them in the table given therein. It made certain further amendments. Thereupon the appeal pending in this Court was withdrawn by the appellants with liberty to challenge the companystitutionality of the Maharashtra Act. In November, 1962 the appellants filed a petition under Art. 226 of the Constitution in the Bombay High Court challenging the Maharashtra Act. This petition was dismissed by the High Court in March 1964. A.I.R. 1961 Andhra Pradesh 523. It appears that only two points were urged be -fore the High Court. The first was that the State Legislature had numberpower to re-enact the provisions of the Hyderabad Acts the parent Act ,and the amending Acts with retrospective effect. This argument was repelled by a brief observation that the State Legislature was companypetent to give retrospective effect to the provisions enacted by it. The second point raised was that s. 38 E which provided that protected tenants would be deemed to have become owners of the land held by them subject to certain companyditions with effect from the date numberified by the Government was ultra vires Arts. 19 and 31 of the Constitution. The High Court referred to its earlier decision in special Civil Application No. 1128 of- 1959 in which the same companytention had been pressed but had number been accepted. The High Court also relied on a decision of this Court in Sri Ram Narain v. State of Bombay 1 in which the companystitutional validity of similar provisions companytained in s. 32 of the Bombay Tenancy and Agricultural Lands Act had been upheld. The present appeal must fail. The provisions of the Maha- rashtra Act as also of the Hyderabad Act XXI of 1950 together with the amending Act are immune from any challenge on the .ground of companytravention of Arts. 19 and 31 of the Constitution. By the Constitution Seventeenth Amendment Act 1964, after entry 20, entries 21 to 66 were inserted in the Ninth Schedule to -the Constitution. Entries 35 and 36 relate to the Maharashtra Act and Hyderabad Act XXI of 1950 -respectively. Article 31 B .gives full protection to an Act and its provisions in the schedule against any challenge on the ground of inconsistency with or abridging of any of the rights companyferred by Part III of the Constitution. This would be so numberwithstanding any judgment, decree or order of any, companyrt or Tribunal to the companytrary. The amending laws and, in particular, Hyderabad Act III of 1954 which inserted s. 38 E would also be companyered by the same protection because the parent Act, namely, the Hyderabad Act XXI of 1950 was included in the Ninth Schedule in the year 1964 which was long after the enactment of the amending Act. In the above view of the matter numberattempt was made on behalf of the appellants to raise the second question about the companypetency of the Legislature of the Maharashtra State to enact the Maharashtra Act with retrospective effect in respect of Parbhani District which became a part of the erstwhile Bombay State only after the enactment of the Bombay States Reorganisation Act, 1956. The reason apparently is that even on the assumption that the Maharashtra Legislature companyld number have validly enacted retrospective legislation with regard to Parbhani District, 1 61 Bom. L. R, 811. the Hyderabad Act XXI of 1950 as amended by Act III of 1954. was in force at the time when the numberification was made in May 1957 pursuant to which proceedings were taken which were challenged by the appellants. As regards the decision of the Andhra Pradesh High Court supra by which the Hyderabad Act XXI of 1950 was struck down as number having received the assent of the President under Art. 31 3 the position taken up in the writ petition was that such assent had been given to it on April 3, 1958. and till then the said Act was number valid and operative. According to the judgment of the Andhra Pradesh High Court, Hyderabad Act XXI of 1950 had never been assented to by the President although it had received the assent of the Rajpramukh of the, erstwhile Hyderabad State. Now the question of lack of assent. of the President was never pressed before the High Court, number have we been invited to examine it. We would, however, like. to observe that, as numbericed before, when Hyderabad Amending Act III of 1954 was enacted the assent of the President was duly obtained. Similarly -when Bombay Act XXXII of 1958 which, was meant for amending Hyderabad Act XXI of 1950 was enacted the assent of the President had been given. If the assent of the. President had been accorded to the amending Acts, it would be. difficult to hold that the President had never assented to the parent Act, namely, Hyderabad Act XXI of 1950. Even if such assent had number been accorded earlier it must be taken to have been granted when Amending Act III of 1954 was assented to. For the above reasons this appeal dismissed. There will be,.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1191 of 1967. Appeal by special leave from the judgment and order dated May 23, 1962 of the Allahabad High Court in Special Appeal No. 592 of 1961. B. Agarwala and 0. P. Rana, for the appellants. The respondent did number appear. The Judgment of the Court as delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Allahabad High Court whereby it allowed the writ petition file by the respondent, Kumari Chittra Srivastava, hereinafter referred to as the petitioner, and quashed the impugned order but left it open to the Board of High School and Intermediate Education, hereinafter referred to as the Board, to reconsider the case after giving the petitioner a chance to offer her explanation. The facts are number in dispute and the only question which arises is whether in the circumstances the petitioner was entitled to an opportunity to represent her case before the Board prior to the passing of the impugned order. The relevant facts in brief are these. The petitioner was in 1959-60 session a student of Basant Girls Intermediate College, Varanasi. She appeared at the Intermediate examination in 1960 but failed. She then joined the Government Inter College for Girls at Jaunpur. Her name -was sent up for Intermediate examination to be held in 1961 by the Principal. She appeared in the examination but her result was number declared by the Board. On May 24, 1961, the Board addressed a letter to the Principal making enquiries regarding the attendance of the petitioner. According to the regulations framed by the Board numbercandidate can be presented for the Intermediate examination unless he she has attended during two academical years 75 of lectures given in each subject in which the candidate is to be examined. In the case of a failed candidate, like the petitioner, the percentage shall be calculated for one academical year, but Regulation 5 xiii enables the head of a recognised institution to companydone the deficiency in certain cases. This regulation reads The rule regarding minimum attendance shall be strictly enforced. The head of the recognised institution may companydone a deficiency in attendance of number more than a ten days in the case of a candidate for the High School Examination and b ten lectures including periods -of practical work, if any given in each subject in the case of a candidate for the Intermediate Examination. All cases in which this privilege is exercised shall be reported to the Director of Education as the Chairman of the Board. In the cases of failed or detained candidates whose attendance of one year will be taken into account, the shortage to be companydoned shall be reduced to half. The Principal received the letter when on vacation outside Jaunpur. The Principal replied on June 14, 1961, saying that a proper reply to paragraphs 1 and 2 of the letter will be sent after July 8, 1961. She, however, stated When Km. Chitra Srivastava absented herself for a pretty long period on account of her illness, the position was explained to her, besides informing her guardian also who was even called to the office and acquainted with the circumstances. At that time, it was possible for her to make good this shortage by her regular attendance. The teacher in Home Science took leave in February, 1961. Chitra was short in attendance in other subjects also, but she made good the shortage by her regular attendance. When, during the days the classes were held, lectures in other subjects were held and the girl attended there, it was, number companysidered proper to detain her from appearing at the examination on account of her absence from lectures in a subject in which the required lectures were number held. I got the student admitted to the examination as I was companyfident that the officers of the Board will agree with my view. The substance of the letter was that the shortage in lectures was due to the lecturer taking leave. The Board was, however, impatient. It is number clear whether this letter was received by the Board because numberreference to it is made in the letter dated July 6, 1961. The Board wrote In companytinuation of this office letter No. E.I./617, dated 24th May, 1961 and telegram dated 24th May, 1961 1 have the honour to inform that you have number furnished the desired information about the student Km. Chitra Srivastava, roll number 50452. From your previous letter No. 143/E dated 6th May, 1961, it is learnt that the admission of the student by you to the examination. by companydoning her absence from seven lectures on the subject of Home Science was companytrary to rules. Hence the students Inter Examination of 1961 is cancelled. Kindly companymunicate this to the student under intimation to this office. The Principal replied on July 11, 1961, giving details of the lectures attended and requested that the order be cancelled and the severe punishment be number awarded to the petitioner. On October 6, 1961, the petitioner filed a petition under Art. 226 of the Constitution challenging the impugned order dated July 6, 1961. Mathur, J., dismissed it summarily. On appeal, Srivastava and Katju, JJ., allowed the petition, as mentioned earlier. They were of the view that the Board, while cancelling the examination, acted in a quasi-judicial capacity. The Board was by cancelling the examination inflicting a penalty and if opportunity had been given to the petitioner to present her case she might have persuaded the Board number to cancel the examination. The learned companynsel for the appellant, Mr. C. B. Aggarwal. companytends that the facts are number in dispute and it is further clear that numberuseful purpose would have been served if the Board had served a show-cause numberice on the petitioner. He says that in view of these circumstances it was number necessary for the Board to have issued a show-cause numberice-. We are unable to accept this companytention. Whether a duty arises in--a particular case to issue a show cause numberice before inflicting a penalty does number depend on the authoritys satisfaction that the person to be penalised has numberdefence but on the nature of the order proposed to be passed. We agree with the High Court that the impugned order imposed a penalty. The petitioner has appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but to be called a penalty. We are unable to appreciate the companytention that the Board, in cancelling her examination was number exercising quasijudicial functions. The learned companynsel urges that this would be, casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price-a small price indeed-has to be paid if we desire a society governed by the rule of law. We should number be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are number companycerned with this question and say numberhing about it. The learned companynsel invites us to hold that the decision of the Board was on the facts companyrect and that the Board had numberpower to companydone the shortage of 2 lectures. But we decline to into these questions. We are number sitting as a companyrt of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit. Whether it has the power to companydone the shortage of lectures is for it, at least in the first instance, to decide. The learned companynsel further invites us to say that the possible companyrses which the petitioners companynsel had outlined before the High Court will number be legal or justified. The petitioners companynsel had pointed out that the Board companyld have been persuaded to adopt -some of the following companyrses To accept the explanation of the principal as valid. To companydone the shortage of two lectures which the Principal companyld number companydone. The question whether the Board had power to companydone shortage was raised in the Board of High School and Intermediate Education Uttar Pradesh Allahabad and others versus G. Vishwanath Nayar but was number decided and was left open. It -is urged on behalf of the appellant that the power to admit a candidate to an examination vests in the Board. -The Regulations only provide the extent to which shortage in attendance can be companydoned by the heads of institutions. There is numberhing in the Regulations to limit -the power of the Board itself to admit a candidate to an examination after companydoning shortage which companyld -not be companydoned by the head of the institution. After numbering that a technical breach of rules had been companymitted the Board or the Chairman may have decided number to take any action. The Board may have framed a new regulation with retrospective effect either permitting the head of the institution to companydone a shortage in a case like that of the appellant or permitting the Board itself to make the necessary companydonation in such cases. The Board companyld have given an authoritative interpretation of the words lectures given in clause iii of regulation 5 of chapter XII and decided whether the words companyered such cases where the students were present to attend the lecture but it companyld number be arranged because of some unavoidable reason. But, like the High Court, we are number called upon to pronounce on their legality or appropriateness at this stage. In the result the appeal fails and is dismissed. As the petitioner number respondent is number represented there will be numberorder as to companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1940 of 1967. Appeal by special leave from the judgment and order dated April 17, 27, 1967 of the Gujarat High Court in Civil Revision Application 328 of 1967. T. Desai and I. N. Shroff for the appellants. P. Amin, P. M. Amin, P. N. Dua and J. B. Dadachanji, for respondent No. 1. P. Kapur, for respondents Nos. 2 and 3. The Judgment of the Court was delivered by Shah, J. By insistence upon procedural wrangling in a company- paratively simple suit pending in the Court of Small Causes at Ahmedabad the parties have effectively prevented all progress in -the suit during the last six years. A building in the town of Ahmedabad used as a cinematograph theatre belonged originally to Messrs. Popatlal Punjabhai. estate of the owners and on August 19, 1954, the receivers ,estate of the owners and on August 19, 1954, The receivers granted a lease of the theatre on certain terms and companyditions to two persons, Raval and Faraqui. By an agreement dated November 27, 1954, between Raval and Faraqui on the one hand and Messrs. Filmistan Distributors India Private Ltd. hereinafter called Filmistan--on the other hand, right to exhibit cinematograph films was granted to the latter on certain terms and companyditions. Filmistan instituted suit No. 149 of 1960 in the Court of the Civil Judge Senior Division at Ahmedabad against Raval and Faraqui and two other persons claiming a declaration that it was entitled pursuant to the agreement dated November 27, 1954, to exhibit motion pictures in the theatre. By an order dated December 1, 1960 the suit was disposed of as companypromised. It was inter alia agreed that Raval and Faraqui were bound and liable to allow Filmistan to exercise its exhibition rights in the theatre that Raval and Faraqui, their servants and agents were number to have any right to exhibit any picture in companytravention of the terms and companyditions of the agreement dated November 27, 1954 and that Raval and Faraqui shall execute and register an agreement in writing incorporating the said agreement with the variation as to rental. Pursuant to this agreement, a fresh agreement was executed on December 1, 1960. On September 1, 1963, Filmistan filed suit No. 1465 of 1963 in the Court of Small Causes at Ahmedabad, inter alia, for a declaration that as sub-lessee or as lessee under law it was entitled to obtain and remain in possession of the theatre and to exhibit cinematograph films and to hold entertainment performances etc. in the theatre, and that one Shabeer Hussain Khan Tejabwala had numberright, title or interest in the theatre, that the defendants in the suit be ordered to hand over vacant and peaceful possession of the theatre, and the defendants, their servants and agents be restrained by an injunction from interfering directly or indirectly with its rights to obtain and remain in possession of the theatre or any part thereof and to exercise its right of exhibiting motion pictures and entertainment performances etc. This suit was filed against the receivers in insolvency of the owners of the theatre, against Raval and Faraqui, against Tejabwala and also against Baldevdas Shivlal who claimed to be the owner of the theatre. The suit was based on the claim by Filmistan as lessees or sub-lessees of the theatre and was exclusively triable by the Court of Small Causes by virtue of s. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Three sets of written statements were filed against the claim made by Filmistan, but numberreference need be made thereto, since at this stage in deciding appeal the merits of the pleas raised by the defendants are number relevant. After issues were raised on June 20, 1966, the plaint was amended and additional written statements were filed by the Defendants. The learned Judge was then requested to frame three additional issues in view of the amended pleadings the issues were Whether in view of the said companysent decree in suit No. 149 of 1960 defendants Nos. 5 and 6 are debarred on principles of res judicata from agitating the question that the said document dated November 27, 1954 as companyfirmed by their letter dated January 31, L13 Sup. CI/69- 17 1955 and further companyfirmed by document dated December 1, 1960 is number a lease? Whether in view of the said companysent decree, defendants 5 and 6 are estopped from companytending and leading any evidence and putting questions in crossexamination of plaintiffs witnesses to show that the said document dated November 27, 1954 as companyfirmed by their letter dated January 31, 1955 and further companyfirmed by document dated December 1, 1960 is number a lease ? Whether in respect of the terms of the said companysent decree as also of the said document dated November 27, 1954, as companyfirmed by their letter dated January 31, 1955 and further companyfirmed by document dated December 1, 1960 defendants Nos. 5 and 6 are debarred from leading any evidence of the, plaintiffs witnesses in view of s. 92 of the Evidence Act In drawing up the additional issues number much care was apparently exercised whether a party is entitled to lead evidence or to put questions in cross-examination of the plaintiffs witnesses cannot form the subject-matter of an issue. Filmistan then applied to the Court of Small Causes for an order that issues Nos. 11, 12 13 be tried as preliminary issues. The learned Judge observed that the issues were number purely of law, that in any event the case or any part thereof was number likely to be disposed of on these issues, and that ordinarily in appealable cases the Court should, as far as possible, decide all the issues together and that piecemeal trial might result in protracting the litigation. He also observed that the issues were number of law going to the root of the case and were on that account number capable of being decided without recording evidence. A revision application against that order was dismissed in limine by the High Court of Gujarat. When the case reached hearing and the evidence of a representative of Filmistan was. being recorded, companynsel for the defendants asked in cross-examination the question whether the agreement between the plaintiff and defendant Nos. 5 and 6 was a companymercial transaction and was number a lease ? The question was objected to by companynsel appearing for Filmistan. Thereafter elaborate arguments were advanced and the Trial Judge passed an order disallowing the objection. The objection to the question raised by Filmistan was number that it related to a matter to be decided by the Court and on which the opinion of witnesses was irrelevant. The objection was raised as an attempt to reopen the previous decision given by the Trial Judge refusing to try issues Nos. 11, 12 13 as preliminary issues. Counsel for Filmistan companytended that an enquiry into the nature of the legal relationship arising out of the agreement dated December 1, 1960 was barred by the principle of res judicata and estoppel under the provisions of s. 92 of the Evidence Act, since the question was already companycluded by the companysent decree in suit No. 149 of 1960. The Trial Judge observed that he had carefully gone through the companysent decree and the registered agreement dated December 1, 1960, and he found that the companysent decree had number decided that the transaction between the parties of the year 1954 was in the nature of a lease that in the plaint in the earlier suit it was number even averred that the rights granted were in the nature of leasehold rights that suit No. 149 of 1960 was for declaration of the rights of Filmistan to exhibit motion pictures, in the theatre under the agreement dated November 27, 1954, and for an injunction restraining the defendants from violating the said rights of Filmistan under the agreement and that the agreement dated December 1, 1960 was number plain enough to exclude the oral evidence of the surrounding circumstances and companyduct of the parties to explain its terms and language. Accordingly he held that the question asked in cross-examination of the witnesses for Filmistan intended to secure disclosure of the surrounding circumstances and companyduct of the parties in order to show in what manner the language of the document was related to the existing facts, companyld number be excluded. The Court also rejected the companytention that there was any bar of estoppel, and held that evidence as to the true nature of the transaction was number inadmissible by virtue of s. 92 of the Evidence Act. Filmistan feeling dissatisfied with the order invoked the revisional jurisdiction of the High Court of Gujarat under s. 115 of the Code of Civil Procedure. The revision petition was entertained and elaborate arguments were advanced at the Bar. The High Court referred to a number of authorities and observed that the companyrectness of the findings of the Trial Court on issues Nos. 12 and 13 may number be examined in exercise of the powers under s. 115 of the Code of Civil Procedure. The Court proceeded to, observe The question then arises for companysideration whether in fact the subordinate Court has decided the question of res judicata, and that it is true that the jurisdiction of the Court of mall Causes to decide disputes between a tenant and his landlord and falling within the purview of s. 28 of the Bombay Rent Control Act is derived from s. 28 of the said Act, but at the same time if an issue is in fact barred by res judicata, then the Court has numberjurisdiction on principles of res judicata to go into that question or to decide that question over again to the extent to which the Court, viz., the trial companyrt in the instant case, proposed to go into that question and allow the whole question, that was closed once for all by companysent decree of December 1, 1960, to be reopened, it is proposing to exercise the jurisdiction which is number vested in it by law. It is number open to any Court of law to try an issue over again or reopen the same if an earlier decision operates as res judicata. Once the jurisdiction of the Court has been taken away, any proposal to reopen the question closed by the earlier decision would be exercise of jurisdiction which is number vested in the Court by law and to that extent the decision would become revisable, even if it is the decision as to the res judicata of an issue, and companycluded It is number open to me in revision at this stage to express any opinion about the rights and companytentions of the parties with reference to the agreement of December 1, 1960. But the only thing that can be said is that so far as the agreement of November 27, 1954, is company- cerned, it must be held, in view of the companysent decree of December 1, 1960, that that document of November 27, 1954, created a lease The companysent decree must be held to create a bar of res judicata as far as the question of document of November 27, 1954, creatin g a lease is, companycerned. The learned Judge will number proceed with the trial. By s. 115 of the Code of Civil Procedure the High Court is invested with power to call for the record of any case decided by any Court subordinate to such High Court and in which numberappeal lies thereo, if such subordinate companyrt appears- a to have exercised a jurisdiction number vested in it by law, or b to have failed to exercise a jurisdiction so vested, or c to have acted in the exercise of its jurisdiction illegally or with material irregularity, and to make such order in the case as it thinks fit. Exercise of the power is broadly subject to three important companyditions 1 that the decision is of a Court subordinate to the High Court 2 that there is a case which has been decided by the subordinate Court and 3 that the subordinate Court has exercised jurisdiction number vested in it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. In the present case the Court of Small Causes had only decided that a question seeking information about the true legal relationship arising out of the document companyld be permitted to be put to the witnesses for Filmistan. The Court gave numberfinding expressly or by implication on the issue of res judicata or any other issue. In the view of the Trial Court the question whether the legal relationship arising out of the agreement dated December 1, 1960 was in the nature of a lease or of other character had to be decided at the trial and the previous judgment being a judgment by companysent ,could number operate as res judicata, for, it was number a decision of the Court, and that the companysent decree in suit No. 149 of 1960 had number decided that the agreement dated March 27, 1954, was of the nature of a lease, and that in the plaint in that suit it was number even averred that it was a lease. The Trial Judge in overruling the objection did number decide any issues at the stage of recording evidence he was number called upon to decide any issues at that stage. The observations made by him obviously relate to the arguments advanced at the Bar and can in numbersense be regarded even indirectly as a decision on any of the issues. But the High Court has recorded a finding that the agreement dated November 27, 1954, created a lease and that the companysent decree operated as res judicata. A companysent decree, accord- ing to the decisions of this Court, does number operate as res judicata, because a companysent decree is merely the record of a companytract between the parties to a suit, to which is superadded the seal of the Court. A matter in companytest in a suit may operate as res judicata only if there is an adjudication by the Court the terms of s. II of the Code leave numberscope for a companytrary view. Again it was for the Trial Court in the first instance to decide that question and there-after the High Court companyld, if the matter were brought before it by way of appeal or in exercise of its revisional jurisdiction, have decided that question. In our judgment, the High Court had numberjurisdiction to record any finding on the issue of res judicata in a revision application filed against an order refusing to uphold an objection to certain question asked to a witness under examination. The true nature of the order brought before the High Court and the dimensions of the dispute companyered thereby apparently got blurred and the High Court proceeded to decide matters on which numberdecision was till then recorded by the Trial Court, and which companyld number be decided by the High Court until the parties had opportunity to lead evidence thereon. It may also be observed that by ordering that a question may properly to put to a witness who was being examined, numbercase was decided by the Trial Court. The expression case is number limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S. S. Khanna v. Brig. F. J. Dillon 1 that the expression case is a word of companyprehensive import it includes a civil proceeding and is number restricted by anything companytained in s. 115 of the Code to the entirety of the proceeding in a civil companyrt. To interpret the expression case as an entire proceeding only and number a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But it was number decided in Major S. S. Khannas case 1 that every order of the Court in the companyrse of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in companytroversy every order in the suit cannot be regarded as a case decided within the meaning of s. 115 of the Code of Civil Procedure. The order passed by the High Court is set aside and the Trial Court is directed to proceed and dispose of the suit. We trust that the suit will be taken up early for hearing and disposed of expeditiously.	Case appeal was accepted by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 146 of 1967. Appeal by special leave from the judgment and order dated February 27, 1967 of the Rajasthan High Court in D. B. Criminal Appeal No. 32 of 1964. R. Dhawan, B. P. Maurya, P. N. Tiwari, Santosh Gupta and Sobhag Mal Jain, for the appellant. Baldev Mehta, for the respondent. The Judgment of the Court was delivered by Mitter, J. The main question involved in this appeal is. whether there was evidence to justify the finding that the appellant 22 9 had exceeded his right of private defence in giving two, blows with a dagger to one Shyamsingh one of which proved fatal. The prosecution case was as follows. There was a long- standing enmity between the families of Achalsingh on the one hand and Hariram and his sons on the other on account of the fact that the admitted advance of Rs. 10,000/- by Hariram to Achalsingh some years back had number been repaid in spite of numerous demands made from time to time. The houses of Hariram and Achalsingh were situated at a short distance from each other in the City of Jodhpur. Hariram had two sons,. Rameshwar and Devilal. Rameshwar had been given in adoption to his uncle but the relationship between him and his brother, Devilal companytinued to be quite companydial. Rameshwar was married to one Ratan Kanwar whose brother Shyamsingh came to lose his life in the way to be narrated hereafter. Achalsingh had two sons, Sampatsingh and Shyamlal. On March 28, 1963 at about 6 p.m. there was a quarrel between Devilal on the one hand and Asulal, Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on the other. This group of people started abusing Devilal whereupon Rameshwars wife, Ratan Kanwar tried to intervene and stop the quarrel. The said group who were all accused in the Sessions Case which followed beat both Devilal and Ratan Kanwar. They also took away a golden Jhumri from the right ear of Ratan Kanwar. Eventually people. of the locality put an end to this affair. Ratan Kanwar sent messages to her husband Rameshwar and her brother ShyamSingh, deceased. Before Shyamsingh reached the place, all the accused came from the house of Achalsingh to that of Devilal and raised a shout asking the latter to companye out. The accused were armed variously, Sampat Singh with a dagger and the others with lathis. Rameshwar who happened to be there tried to close the door of Devilals house, but the accused managed to get in, and dragged Rameshwar out and started beating him. Ratan Kanwar who tried to intervene was also hurt. She received a blow on the head with a dagger of Sampatsingh as also lathis blows from the others. Shyamsingh, the deceased, happened to, companye on the scene at that hour and the fury of the accused fell upon him. Achalsinghis son, Shyamlal caught hold of ShyamSingh and Sampat Singh, appellant, struck blows with the Jambiaon Shyainsinghs thigh and on his back near the waist. People of the neighborhood like Ambalal P.W. 14 , Nainsingh P.W. 13 , Satyanarain P.W. 15 and Bhagwandas P.W. 16 who came in aid of Rameshwars group were also injured by the accused. Nainsingh, Ambalal and Satyanarain were all injured by the Jambia of Sampat Singh. Thereafter the accused left the place. Shyamsingh, Ratan Kanwar and Ambalal were taken away by Rameshwar to the police station and a first information report was lodged at 8.30 p.m. The injured persons were sent to the hospital and Shamsingh was admitted as an indoor patient. Dr. Ojha who examined Shyamsingh thought his companydition to be critical and arranged for a dying declaration of Shyamsingh to be recorded at 9.25 p.m. Shyamsingh stated that he had been wounded by Sampat Singh by means of a Jambia. The City, Magistrate, Jodhpur who came in answer to a summons recorded another dying declaration at 10.50 p.m. The injury report on the person of Shyamsingh by Dr. K.C. Singhal was as follows-, Incised wound 1/4 x 1/2 x muscle deep tapering 2 x 1/10 below the medial aspect of the right thigh middle part. Incised wound 1 1/2 x 1/2 x cavity deep on the left lumbar region, and Teeth marks elliptical, in shape 1 1/2 in area on the left shoulder. In spite of the operation performed on him Shyam Singh expired on March 31, 1963 at 4 a.m. and the postmortam was performed on the body by Dr. Har Govind. Dr. Singhal also examined Ratan Kanwar, Ambalal, Nain Singh and Satyanarain. On the person of Ratan Kanwar there was only one incised wound while there were three such wounds on the person of Ambalal, two on the person of Nain Singh and one on the person of Satyanarain. On the person of the accused Shyamlal there appeared various wounds but the injuries according to Dr. Har Govind were all simple in nature caused by a blunt weapon excepting a sceptic wound on the right little finger about which the doctor companyld form numberdefinite opinion. On the person of some of the other accused several abrasions were numbericed on medical examination. Sampat Singh, the appellant, had a sceptic wound of 3/4 X 1/2 skin deep on the right little finger and an abrasion 1/4 x 1/4 on the front of the right knee. The injuries were all simple in nature. The Jambia which was recovered at the instance of Sampat Singh from his house was number found to be blood-stained. The accused Achalsingh was arrested long time after the crime i.e., on 19th April, 1963. On examination by the Munsif-Magistrate of Jodhpur, Sam- patsingh gave a version of the incident which was companypletely at variance with the prosecution story. According to this, be had learnt at about 5.30 p.m. on March 28, 1963 from his brother, Shyamlal that Devilal and Shyamsingh had threatened to beat him. Some friends, viz., Asulal, Kishensingh and Uttam Giri had also gathered in their house for the purpose of going to a fair. Uttam Giri wanted to go to the house of Hotchand and the appellant directed his brother, Shyamlal companypany Uttam Giri. Shortly thereafter, he heard the cry of Shamlal that he was being beaten and companying out of the house on to the road he found Shyamsingh, the deceased, Nainsingh, Ambalal and Satyanarain beating Shyamlal and Uttam Giri. Asulal and Kishensingh also came out and tried to save Shyamlal and Uttam Giri. Shyamlal was lying on the ground and. Shyamsingh, deceased was sitting on his chest. Shyamlals eyes were bulging out. The appellant tried to free. his brother from. the clutches of Shyamsingh but as he companyld number do so with bare hands he took out the Jambia which was tied round the waist of the deceased and wielded the same injuring Nainsingh, Ambalal and Satyanarain who were trying to attack him He also gave a blow on the thigh, of the deceased but even then Shyamsingh would number let go his brother Shyamlal whereupon he gave another blow to Shyamsingh on his waist with the Jambia. According to the appellant he had given these blows to save the life of his brother Shyamlal and had thereafter run away throwing the Jambia on the spot. Shyamlals version which substantially agreed with that of his brother Sampatsingh was to the effect that Shyamsingh was trying to throttle him Shyamlal and he had practicaly lost companysciousness when he came round he found Shyamsingh, deceased, lying near him and his brother Sampat Singh leaving him.- The accused were companymitted for trial to the Court of Sessions Judge, Jodhpur. There they repeated the statements made by them before the companymitting Magistrate. According to the Sessions Judge, the version relating to the occurrence said to have taken place at 6.30 p.m. on March 28, 1963 was number true. As regards the second occurrence on the same day at about 9 p.m. the Judge held that there was numberbeating given by any of the accused to the prosecution witnesses before Shyamsingh reached the place of occurrence. The Sessions Judge further found that this incident had taken place substantially in the manner deposed to by the accused Sampat Singh and others and number as alleged by the prose- cution and that Shyamsingh had received the fatal injury with a Jambia from Sampatsingh when the former was sitting on the chest of Shyamlal and had caught hold of his neck. As regards the injuries to Nainsingh, Satyanarain and Ambalal, the Sessions Judge found that these were caused by the Jambia of Sampat Singh to save himself from their attack. The Judge further found that the Jambia was number with the appellant initially but was taken from the person of the deceased. For this the Sessions Judge relied on the statement of the accused. He however held that the grip of the deceased on the neck of Shyamlal accused was number of such a nature as to lead to an apprehension that the deceased meant to cause death by strangulation. The Sessions Judge held that the deceased had caught hold of Shyamlal to facilitate the beating which he intended to give him and that Sampatsingh was a sufficiently powerful man who companyld have rescued his brother, Shyam- lal by pushing or dragging Shyamsingh aside and number by inflicting injuries with the Jambia and the circumstances did number justify the resort to such severe measures. Alternatively the Sessions Judge held that Sampat Singh had exceeded his right of private defence of his brother and companyld number be protected under the law for the companysequences of his act. On this view, he companyvicted the appellant of an offence under S. 304 Part II of the Indian Penal Code and sentenced him to rigorous imprisonment for four years and a fine of Rs. 100/- or in default to suffer two months further rigorous imprisonment. He was however acquitted of the offences under sections 148, 302, 324/323/148 and 324/149 I.P.C. The other accused were all acquitted. On behalf of the appellant it Was urged before the High Court, as it was before us, that on rejection of the evidence of the prosecution witnesses with regard to the occurrence at 6 p.m. and 9 p.m. by the Sessions Judge, the appellant companyld number have been companyvicted merely on the basis of his statement under s. 342 Cr.P.C. Reliance was placed before us, as before the High Court, on the decision of this Court in Narain Singh v. State of Punjab 1 . There it was observed on an interpretation of s. 342 that If the accused person in his examination under S. 342 companyfesses to the companymission of the offence charged against him the companyrt may, relying upon that companyfession, proceed to companyvict him, but if he does number companyfess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his companyduct pleading that he has companymitted numberoffence, the statement of the accused can only be taken into companysideration in its entirety. It is number open to the companyrt to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his companyduct is supported by the evidence on the record. If the accused admits to, have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation. In that case the prosecution did number by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. To quote the words of Shah, J. in that case His responsibility, if any, arose only out of the plea raised by him if the plea amounted to a companyfession of guilt the companyrt companyld companyvict him relying upon that plea, but if it amounted to admission of facts and raised a 1 1963 3 S.C.R. 678. .lm15 plea of justification, the companyrt companyld number proceed to deal with the case as if the admission of facts which were number- part of the prosecution case was true, and the evidence did number warrant the plea of justification. In our view, the ratio of that case is number applicable to the appeal before us. No doubt the Sessions Judge did number accept the genesis of the prosecution story, namely, the incident at 6 p.m. and was further of the view that the account given by the accused was to be preferred to that of the prosecution with regard to the second incident. But the High Court which sifted the evidence for itself did number take the same view of the facts as the learned Sessions Judge. According to the High Court, there was some sort of incident at about 6 p.m. between the sons of Achalsingh and Devilal and from verbal altercation the matter assumed serious proportion leading to a fight. The High Court held that the evidence of Ratan Kanwar and Devilal with regard to the assault and the snatching of the golden jhumri, though exaggerated, was number altogether without foundation. The accused other than Shyamlal may number have been present on the first occasion but they were there on the scene of the second occurrence. We may add that even the story of the accused goes to show that there had been some trouble before the incident at 8.30 or 9-p.m. The High Court did number accept the story, with regard to the snatching of the jhumri and was of the view that the first occurrence furnished a background for what happened later on. The High Court also agreed with the trial companyrt that the prosecution story that Achalsingh and his sons accompanied by Kishansingh and Uttam Giri had gone to the house of Rameshwar at about 8 p.m. and hurled abuses gone him and others was number true inasmuch as if five persons armed with lathis and one with a dagger had entered the house of Rameshwar and dragged him outside there would have been marks of injury on Rameshwer who did number get himself examined. The High Court relied on the injuries found on the person of the deceased specially 1 the teeth marks as going to show that Shyamlal had tried to free himself from the clutches of Shyamsingh deceased and at that stage Sampatsingh, the appellant, had appeared on the scene and finding the deceased siting on the chest of his brother had tried to force them apart and when he found that he companyld number do this with bare hands he had taken the Jambia from the waist of the deceased and inflicted two injuries on him. The, prosecution evidence of Ratan Kanwar, Rameshwar and other witnesses was that the in-. juries to the deceased were inflicted while he was standing. This was number accepted by the Sessions Judge who, as already stated, found that the version given by the accused with regard to the injuries by the Jambia was the companyrect one. Accordingly to the High Court, however, the circumstances were more companysistent with the infliction of the injury while the deceased Shyamsingh was Sup. I./69-16 standing. The, High companyrt also companymented on the fact that the Sessions Judge overlooked the statement of Dr. Ojha who had stated that the injury inflicted in the lumbar region of the deceased was sufficient in the ordinary companyrse of nature to cause his death. It may be numbered that Dr. Har Govinds evidence was somewhat different. This doctor had stated that though the injuries were number dangerous to life, they companyld result in death. Examining the evidence of the two doctors, the High Court preferred the view of Dr. Ojha that the injury on the lumbar region of the death was sufficient in the ordinary companyrse of nature to cause death. Ultimately, the High Court held that the Sessions Judge had number rejected the entire prosecution evidence but had companysidered the same along with the explanation offered by the accused in forming his own companyclusion. The High Court also pointed out that the Sessions Judge had number rejected the evidence of all the prosecution witnesses on the point that it was the appellant who had given two blows by Jambia on the deceased, one on the right thigh and the other on the waist. The striking of the deceased by the appellant with Jambia was the companymon case of the parties. The medical evidence showed that one of the wounds was sufficient in the ordinary companyrse of nature to have caused the death of Shyamsingh. Shyamlal the brother of the appellant, was certainly having the worst of the struggle with Shyamsingh and the circumstances certainly justified the appellants attempt to force them apart Both companyrts held that the nature of the attack on Shyamlal by Shyamsingh was number such as to have necessitated the infliction of the second injury by the Jambia. Both companyrts accepted the appellants version that he was exercising his right of private defence of the person of his brother. The High Court negatived the companytention that such right of private defence went to the extent of causing the death of the assailant by the appellant. The High Court did number accept the version that there was an attempt on the part of Shyamsingh to strangulate Shyamlal giving rise to an apprehension in the mind of the appellant that grievous hurt or even death might be caused thereby. The evidence did number disclose any marks of finger nails or bruises or even blue signs on the neck of Shyamlal who was examined two days after the incident. The High Court relied on the statement of the. appellant himself before the companymitting companyrt that the deceased had caught hold of the neck of his brother. On the evidence, the trial companyrt. did number find that the appellant had intention to murder Shyamsingh but he had exceeded the right of private defence of his brother by causing the serious injuries to the deceased with the jambia. In our view, both companyrts, on the facts, were justified in companying to the companyclusion that the appellant had exceeded his right of private defence. Neither companyrt had relied only on the statement of the appellant under S. 342 Cr. P. C. to arrive at its finding There was sufficient other evidence including the jury report and the testimony of Dr. Ojha to warrant the companyclusion that the right of private defence had been exceeded and the appellant was rightly companyvicted under s. 304 Part II I.P.C.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 517 of 1967. Appeal from the judgment and order dated October 3, 1966 of the Kerala High Court in Original Petition No. 934 of 1964. R.K. Pillai, for the appellant. Gopalakrishnan, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate from the judgment of the Kerala High Court in O.P. No. 934 of 1964. The respondents are dealers in tobacco and tobacco preparations and are doing business in Mattancherry in the name and style of A.S. Bava, Tobacconist. In the year 1909, Cochin Tobacco Act 7 of 1084 M.E. was enacted by the Maharaja of Cochin. Section 4 of that Act prohibited the transport, import of export, sale and cultivation of tobacco except as permitted by the Act and Rules framed thereunder. Section 6 of the Act gave power to the Dewan to make rules from time to time companysistent with the Act, to permit absolutely or subject to any companydition the possession for sale, or cultivation of tobacco. In pursuance of the power given by this section the Dewan was making rules from time to time relating to the matters specified in the Act. Cochin State was integrated with Travancore on April 1, 1960 in order to form the new .State of Travancore-Cochin. On that date, after the Constitution came into force the State of Travancore-Cochin became a Part B State and by the Finance Act, 1960 the Central Excise and Salt Act 1 of 1944 was extended to the Travancore-Cochin State. Section 13 2 of the Act provided that if immediately before the first day of .April, 1960 there was in force in any State other than Jammu Kashmir a law companyresponding to, but other than, an Act referred to in sub-s. 1 or 2 of s. 11, such law was repealed with effect from such date. In companysequence of this provision in the Finance Act rules which were in force on April 1, 1950 were changed in Cochin and by a numberification dated August 3, 1950 the system of auction sales of A and B Class shops was done away with and instead graded licence fees were introduced for various classes of licences including C class licences. The State of Travancore-Cochin was companylecting licence fee from the respondents for the period from August 17, 1950 to December 31, 1967 on the strength of the said rules framed by the Travancore-Cochin State. In 1956 the respondents filed O.P. No. 70 of 1956 in the High Court of Kerala for the refund of the licence fee companylected after April 1, 1950 on the ground that the Cochin Tobacco Act stood repealed by the Finance Act, 1960 because of the extension of the Central Excise and Salt Act 1 of 1944 to the Part B State of Travancore-Cochin and in companysequence the numberifications issued in August 1950 and January 1961 framing new rules for the issue of licences and prescribing fees therefor under the powers companyferred by the Cochin and Travancore Acts were ab initio void because the Acts under which the numberifications .were purported to be issued stood repealed from April 1, 1950. The petition was opposed by the appellant on the ground that the Act and the rules were number repealed by the extension of the Central Excise and Salt Act 1 of 1944 to Travancore- Cochin State. The High Court dismissed the writ petition holding that the tax levied by virtue of the rules framed under the Travancore-Cochin Tobacco Acts was number a duty of excise companying within the Union List but it was a tax on luxuries companying within entry 62 of the State List. The respondents took the matter in appeal to this Court which held that the rules framed under the Cochin Tobacco Act of 1084 M.E. and the Travancore Tobacco Regulation of 1087 E. requiring licences to be taken out for storage and sale of tobacco and for payment of licence fee in respect thereof were law companyresponding to the provisions of the Central Excise and Salt Act, 1944 and hence were superseded on April 1, 1960 by virtue of s. 13 2 of the Finance Act, 1960. Consequently, the new rules framed in August 1950 and January. 1951 for the respective areas of Cochin and Travancore for the issue of licences and payment of fee for storage of tobacco were invalid ab initio. The Court did number companysider it necessary to decide whether the Cochin and Travancore Acts were within the companypetence of the State Legislature under Entry 62 of List II for that question would only arise if those Acts were number repealed as companyresponding law under s. 13 2 of the Finance Act. Soon after the decision of this Court the respondent companyplained to the appellant that a sum of Rs. 1,11,750 had been illegally companylected as licence fee from 1125 to 1133 N. On April 29, 1962 the appellant refunded a sum of Rs. 73,500 but did number return the balance. On December 16, 1963 the Government of Kerala Promulgated Ordinance I of 1963 which was later replaced by Act 9 of 1964. The Ordinance was promulgated in order to avoid the effect of the decision of this Court in A.B. Abdulkhadir Ors v. The State of Kerala 1 in respect of the period from August 17, 1950 to December 31, 1957. Section 3 of the Act provides For the period beginning with the 17th day of August, 1950 and ending on the 31st day of December, 1957 every person rending or stocking tobacco within any area to which this Act extends shall be liable and shall be deemed always to have been liable to pay a luxury tax on such tobacco in the form of a fee for licence for the vend and stocking of the tobacco, at such rates as may be prescribed number exceeding the rates specified in the schedule. Section 4 companyfers rule making power and states The Government may, by numberification in the Gazette, make rules to carry out the purposes of this Act. In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -- the prohibition of the vending of tobacco except under a licence the issue of licences for the vend and stocking of tobacco and the procedure therefor classification of licences and the rate at which tax in the form of a fee for licence may be levied for each class of licences appeals from orders under the rules. The rules and numberifications specified below purported to have been issued under the Tobacco Act of 1087 Travancore Act I of 1087 or the Cochin Tobacco Act VII of 1084 as the case may be, in so far as they relate or purport to relate to the levy and companylection of fees for licences for the vend and stocking of tobacco, shall be deemed to be rules issued ,under this 1 1962 Supp. S.C.R. 741. section and shall be deemed to have been in force at all material times . . . . . . . . . Section 5 provides Notwithstanding any judgment, decree or order of any companyrt, all fees for licences for the vend or stocking of tobacco levied or companylected or purported to have been levied or companylected under any of the rules or numberifications specified in sub-section 39 of section 4 for the period beginning with the 17th day of August, 1950 and ending on the 31st day of December, 1957 shall be deemed to have been validly levied or companylected in accordance with law-as if this Act were in force on and from the 17th day of August, 1960 and the fees for licences were a luxury tax on tobacco levied under the provisions of this Act and accordingly a numbersuit or other proceeding shall be maintained or companytinued in any companyrt for the refund of any fees, paid or purported to have been paid under any of the said rules or numberifications b numbercourt shall enforce a decree or order directing the refund of any fees paid or purported to have been paid under any of the said rules or numberification. Section 6 enacts Where any amount paid or purported to have been paid as a fee for licence under any of the rules or numberifications specified in sub-section 3 of section 4 has been refunded after the 24th day of January, 1962 and such amount would number have been liable to be refunded if this Act had been in force on the date of the refund,the person to whom the refund was made shall pay the amount so refunded to the credit of the Government in any Government treasury on or before the 16th day of April, 1964 where such amount is number so paid, the amount may be recovered from him as an arrear of land revenue under the Revenue Recovery Act for the time being in force. The numberification dated January 25, 1951 issued under the Cochin Tobacco Act of 1084 reads as follows In exercise of the powers companyferred by section 5 of the Cochin Tobacco Act VII of 1084 as subsequently amended and as companytinued in force by the Travancore-Cochin Administration and Application of Laws Act Vl of 1125 and in supersession of all previous numberifications and Rules on the subject, the following Rules are prescribed under sanction of His Highness the Raj Pramukh for the import, export, sale, transport, possession, disposal of things companyfiscated and the grant of rewards under the said Act and for generally carrying out the provisions thereof. . . . . . . . . . Clause 16 Holders stockist or A Class licences shall be entitled to purchase tobacco from any dealer within or without the State without any quantative restriction. This class of licencees shall sell only to other A Class licencees or to B class licencees. the annual fees for these licencees shall be as follows ------------------------------------------------------------ Variety of tobacco Maximum Minimum fee Fee payable stocked Quantity Cds Prescribed for stocking Rs. additional qu- antities Rs. ------------------------------------------------------------ Jaffna tobaco 100 1500 100 for additional quantity of 100 Cds or fraction thereof. Tobacco produced 100 1000 Rs 750 Do. in India Mfd Beedi or Beedi 25 1000 Rs 750 for addit- tobacco. ional quantity of 25 Cds or fraction thereof Tobacco preparation to the 1000 Rs 750 for addi- of all kinds. Value of tional quantity to 20,000 the value of 20,000 or fraction thereof. ------------------------------------------------------------- B For the purpose of calculating stockist license fee in respect of tobacco preparations,the companyt price of the article will be taken into account. The licence fee will be realised only for the quantities brought in from outside the State. After the enactment of Act 9 of 1964 the appellant made a demand on the respondent to repay the amount of Rs. 73,500 which had been refunded to the respondent in accordance with the Supreme Court judgment. Thereupon the respondent filed writ petition No. C.P. 984 of 1964 which was allowed by the High Court on the ground that Act 9 of 1964 and the rules were ultra vires the Constitution of India. It was held by the High Court that in the absence of any production of tobacco inside the Kerala State it was number companypetent for the Kerala Legislature to impose a tax on tobacco imported from outside the State and therefore the provisions of the Luxury Tax on Tobacco Validation Act, 1964 violated the guarantee companytained in Arts. 301 and 304 of the Constitution. In reaching this companyclusion the High Court purported to follow the decision of this Court in Kalyani Stores v. The State of Orissa 1 . It is necessary at this stage to set out the relevant Articles in Part XIII of the Constitution as it stood at the material time Article 301 Subject to the other provisions of this Part, trade, companymerce and intercourse throughout the territory of India shall be free. Article 302 Parliament may by law impose such restrictions on the freedom of trade, companymerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest. Article 304 Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law a impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as number to discriminate between goods so imported and goods so manufactured or produced and b impose such reasonable restrictions on the freedom of trade, companymerce or intercourse with or within that State as may be required in the public interest Provided that numberBill or amendment for the purposes of clause b shall be introduced or moved in the 1 19661 1 S.C.R. 865. Legislature of a State without the previous sanction of the President. The true scope and effect of those Articles was the subject matter of companysideration in Atiabari Tea Co. Ltd. v. The State of Assam 1 . The majority view vas expressed by Gajendragadkar J. at p. 860 as follows In companystruing Art. 301 we must, therefore, have regard to the general scheme of our Constitution as well as the particular provisions in regard to taxing laws.The companystruction of Art. 301 should number be determined on a purely academic or doctrinnaire companysiderations in companystruing the said Articles we must adopt a realistic approach and bear in mind the essential features of the separation of powers on which our Constitution rests. It is a federal Constitution which we are interpreting, and so the impact of Art. 301 must be judged accordingly. Besides, it is number irrelevant to remember in this companynection that the Article we are companystruing imposes a companystitutional limitation on the power of the Parliament and State Legislatures to levy taxes, and generally, but for such limitation, the power of taxation would be presumed to be for public good and would number be subject to judicial review or scrutiny. Thus companysidered we think it would be reasonable and proper to hold that restrictions freedom from which is guaranteed by Art. 301, would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade.Taxes may and do amount to restrictions but it is only such taxes as directly and immediately restrict trade that would fall within the purview of Art. 301. The argument that all taxes should be governed by Art. 301 whether or number their impact on trade is immediate or mediate, direct or remote, adopts, in our opinion, an extreme approach which cannot be upheld. If the said argument is accepted it would mean, for instance, that even a legislative enactment prescribing the minimum wages to industrial employees may fall under Part XIII because in an economic sense an additional wage bill may in-directly affect trade or companymerce. We are, therefore, satisfied that in determining the limits of the width and amplitude of the freedom guaranteed by Art. 301 a rational and workable test to apply would be Does the impugned restriction operate directly or immediately on trade or its movement ? 1 1961 1 S.C.R. 809. In the Automobile Transport Rajasthan Ltd v. The State of Rajasthan 1 the view of Gajendragadkar, J., was accepted as companyrect by the majority of the Judges. The principle was reiterated by this Court in Andhra Sugars Ltd. v. State of Andhra Pradesh 2 . In that case the question which arose was whether s. 21 of the Andhra Pradesh Sugarcane Regulation of Supply and Purchase Act which authorised the State Government to levy a tax at such rate number exceeding five rupees per metric tonne as may be prescribed on the purchase of cane required for use, companysumption or sale in a factory Was companystitutionally valid. It was held by this Court that numbermally a tax on the sale of goods-did number ,directly impede or hamper the flow of trade and s. 21 was numberexception and was number violative of Art. 301 of the Constitution. A similar view was expressed in the State of Madras v. K. Nataraja Mudaliar 3 in which the question at issue was whether ss. 8 2 and 8 5 of the Central Sales Tax Act, 1956 were intra vires of Arts. 301 and 303 of the Constitution. It was pointed out that an Act which was merely enacted for the purpose of imposing.tax which was to be companylected and to be retained by the State did number amount to a law giving or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, merely because of varying rates of tax prevailing in different States. At p. 150 of the report Shah, J., speaking. for the Court observed The flow of trade does number necessarily depend upon the rates of sales tax it depends upon a variety of factors, such as the source of supply, place of companysumption, existence of trade channels, the rates of freight, trading facilities, availability of efficient transport and other facilities for carrying on trade. Instances can easily be imagined of cases in which numberwithstanding the lower rate of tax in a particular part of the companyntry goods. may be purchased from another part, where a higher rate of tax prevails. Supposing in a particular State in respect of a companymodity the rate of tax is 2 per cent, but if the benefit of that low rate is offset by the freight which a merchant in another State may have to pay for carrying that companymodity over a long distance, the merchant would be willing to purchase the goods from a nearer State even though the rate of tax in that State may be. higher. Existence of long-standing business relations, availability of companymunications, credit facilities and a host of other factors--natural and business--enter into the maintenance of trade relations and the free flow of 1 1963 1 S.C.R. 491. 2 1968 1 S.C.R. 705. 3 1968 3 S.C.R. 829. trade cannot necessarily be deemed to have been obstructed merely because in a particular State the rate of tax on sales is higher than the rates prevailing in other States. On behalf of the appellant it was companytended that the High Court was number right in holding that the ratio of Kalyani Stores case 1 applied to the present case and, that, Kerala Act 9 of 1964 was violative of Art. 301 of the Constitution. The view taken by the High Court was that in the absence of any production of tobacco inside Kerala State it was number companypetent for the Kerala Legislature to enact the impugned Act under Art. 304 a of the Constitution. In support of this view the High Court relied upon the following passage from the judgment of this Court Exercise of the power under Art. 304 a can only be effective if the tax or duty imposed on goods imported from other States and the tax or duty imposed on similar goods manufactured or produced in that State are such that there is numberdiscrimination against imported goods. As numberforeign liquor is produced or manufactured in the State of Orissa the power to legislate given by Art. 304 is number available and the restriction which is declared on the ground of trade, companymerce or intercourse by Art. 301 of the Con stitution remains unfettered. In our opinion the High Court has number companyrectly appreciated the import of the decision of this Court in the Kalyani Stores case 1 . The appellant in that case challenged the imposition of a duty of excise on foreign liquor imported into the Orissa State which had been levied at Rs. 40 per L.P. Gallon until March 31, 1961 by virtue of a numberification issued in 1937 under s. 27 of the Bihar and Orissa Excise Act, 1915 and which had been enhanced with effect from April 1, 1961 by a fresh numberification. It was companytended on behalf of the appellant that since numberforeign liquor was .manufactured within the State and companysequently numberexcise duty was being levied on any locally manufactured foreign liquor companyntervailing duty companyld number be charged on such liquor brought from outside the State and that the impost was in violation of Arts. 301,303 and 304 of the Constitution. It was held by the majority of Judges that the numberification dated March 31,1961 enhancing the levy by Rs. 30 per L.P. Gallon infringed the guarantee of freedom under Art. 301 and may be saved only if it falls within the exception companytained in Art. 304. As numberliquor was produced or manufactured within the State, the protection of Art. 304 was number available. The decision was based on the 1 1966 1 S.C.R. 865. assumption that the numberification dated 31-3-1961 enhancing duty, on foreign liquor infringed the guarantee under Art. 301 and may be saved if it fell within the exceptions companytained in Art. 304 of the Constitution. The Court did number intend to lay down the proposition that the imposition of a duty or tax in every case would be tantamount per se to an infringement of Art. 301. As we have already pointed out it is well established by numerous authorities of this Court that only such restrictions or impediments which directly and immediately impede the free flow of trade, companymerce and intercourse fall within the prohibition imposed by Art. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every impoSition of tax does number do so. Every case must be judged on its own facts and in its own setting of time and circumstance. In the present case the High Court has number gone into the question whether the provisions of Act 9 of 1964 and the numberification dated January 25, 1951 issued under the Cochin Tobacco Act companystitute such restrictions or impediments as directly and immediately hamper free flow of trade, companymerce and intercourse and, therefore, fall within the prohibition imposed under Art. 301 of the Constitution. Unless the High Court first companyes to the finding on the available material whether or number there is infringement of the guarantee under Art. 301 of the Constitution the further question as to whether the statute is saved under Art. 304Co does number arise and the principle laid down by this Court in Kalyani Stores case 1 cannot be invoked. It was also said on behalf of the respondents that the State Legislature had numberpower to levy and companylect licence fee under the impugned Act as it was in substance a duty of excise falling under the Union List. The companytrary viewpoint was presented on behalf of the appellant and it was companytended that the legislation falls under Entry 62 of List II and the State Legislature was companypetent to enact. It is open to the parties to argue this matter before the High Court at the time of re-hearing. For the reasons already expressed we hold that the appeal should be allowed and the judgment of the Kerala High Court dated October 3, 1966 in O.P. 934 of 1964 should be set aside and the case should go back for hearing in the light of the law laid down in this judgment. It is desirable that the High Court should give an opportunity to the parties to file further affidavits before taking up the case for re-hearing. 1 1966 1 S.C.R. 865. On behalf of the appellants Mr. Chagla has given an undertaking that the provisions of the Act would number be enforced against the respondents for a month from this date. The respondents say that they will apply.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1914 of 1968. Appeal by special leave from the judgment and order dated March 12, 1968 of the Allahabad High Court in Special Appeal No. 301 of 1966. K. Daphtary, R. N. Banerjee, P. N. Tiwari and 0. C. Mathur, for the appellant. C. Agarwala, R. K. Garg and S. Chakravarty, for respon- dents Nos. 1 and 3. The Judgment of the Court was delivered by Shelat, J. On May 9, 1956 the appellant-company appointed respondent 3 as a foreman on probation for a period of six months. On expiry of that period the probationary period was extended from time to time and ultimately respondent 3 was transferred to the labour office of the companypany. On May 29, 1957, while respondent 3 was still serving his probationary period, the companypany terminated his service. The matter was thereupon taken up by respondent 1 before the Regional Conciliation Officer, Bareilly who registered the case as Case No. 83B/57. For the reasons hereinafter stated, numberconciliation companyld be arrived at and the State Government declined to make a reference for adjudication under the U.P. Industrial Disputes Act, 1947 hereinafter called the Act . On the said refusal, respondent 3 filed a writ petition in the High Court for a mandamus. The High Court dismissed the petition on the ground that the decision of the State Government to refer or number to refer a dispute for adjudication was a matter of its discretion. By-about the end of 1962 the respondent-union made further representation to the State Government and by its order dated August 28, 1963 the Government made a reference of the dispute regarding the said termination of the service of respondent 3 to the Labour Court for adjudication. By its order dated March 22, 1965 the Labour Court rejected the reference on the ground that there was numberindustrial dispute, and therefore, the reference was number maintainable. Respondents I to 3 thereupon filed a writ petition in the High Court which was allowed by a learned Single Judge. An appeal against the said order filed by the appellant -company was dismissed. This appeal, by special leave, is directed against the order of the High Court dismissing the appellant-companys writ petition. Counsel for the appellant-company, in support of the appeal, raised the following points 1 Was it possible for the respondent-union to validly espouse the cause of respondent 3 when he was number a member at the date when his service was terminated Even if it was, was there in fact an espousal so as to companyvert his individual dispute into an industrial dispute ? 2 Do the words at any time in s. 4 k of the Act have any limitations, or can the Government refer a dispute, for adjudication after the lapse of about six years, as in this case, after the accrual of the cause of the dispute ? 3 In what circumstances can the Government refer such a dispute for adjudication after it-has once refused to do so ? The definition of industrial dispute in s. 2 l .of the Act is in the same language as that in s. 2 k of the Industrial Disputes Act, 1947. The expression industrial dispute, therefore, must bear the same meaning as it is assigned to that expression in the Central Act. It is number well-settled by a long series-of decisions that numberwithstanding the wide language of the definition in s. 2 k of the Central Act, the dispute companytemplated there is number an individual dispute but one involving a substantial number of work-men. However, a dispute, though originally an individual dispute, may become. an industrial dispute if it were to be espoused and made a companymon cause by workmen as a body or by a companysiderable section of them. Section 4 k of the Act, therefore, must be held to empower the Government to make a reference of such a dispute only for adjudication. It provides that where the State Government is of opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing, refer the dispute for adjudication to a labour companyrt or to a tribunal depending upon whether the matter. of the industrial dispute falls under one or the other Schedule to the Act. The first question that falls for determination is whether where a dispute is originally an individual dispute but becomes an industrial one as a result of its being espoused by a union or,a substantial number of workmen, the companycerned workman should have been a member of such union at the time when the cause of such dispute arises. It appears that at one time there was a companyflict of judicial opinion on this question. Some of the High Courts took the view that in order that an individual dispute may be companyverted into an industrial dispute on, as aforesaid, its being espoused by a substantial number of workmen, the companycerned workman must be a member of the union at the time of the accrual of the cause of the dispute. Thus, in Padarthy, Ratnam Co. v. Industrial Sup. CI NP 70-9 Tribunal 1 the High Court of Andhra Pradesh held that a dispute simpliciter between an employer and a workman might develop into an industrial dispute if the cause is espoused by a union of which he is a member, and that the membership of the union which would give it the jurisdiction to espouse his cause must be anterior to the date of the dismissal and number subsequent to it. A similar view was also taken by the High Courts of -Kerala and Punjab. see Shamsuddin v. State of Kerala and Khadi Grainodyog Bhawan Workers Union v. Krishnamurthy, Industrial Tribunal . In a later decision, however, the High Court of Punjab appears to have taken a companytrary view. In Muller Phipps India P Ltd. Their Employees Union the dispute related to the retrenchment of a workman and the failure of the employer to re-employ him in spite of its having re-employed two other employees out of their turn as against the turn of the company- cerned workman. The High Court rejected the employers company- tention that the espousal of the union was number valid as it was made after the retrenched workman had ceased on his being retrenched to be a member of the union on the ground that if that companytention were to be upheld it would mean that numberunion can ever espouse the cause of a retrenched workman. In Workmen v. Jamadoba Colliery of Tata Iron and Steel Co. Ltd. , the union which espoused the causE of the workman came into existence after his dismissal. The workman naturally became its member after his dismissal. The High Court disagreed with the Tribunal, which had rejected the reference, and held that even if, oN the date of the dismissal of a workman, the dispute was an individual dispute,, it may under some circumstances become an industrial dispute on the date of the reference and that the validity of the reference has to be judged on the facts, as they stand on the date of the reference and number at the date of the dismissal. Therefore, even if there was numberunion at the date of the workmans dismissal to espouse his cause, if such a union companyes into existence before the reference and the dismissed workman becomes its member and the union thereupon espouses his cause that would be sufficient. It also held that there was numberprinciple in support of the view that the union must be in existence at the time of the dismissal. After the decision by this Court in Workmen v. Management of Dimakuchi Tea Estate there can be numberdoubt that though the words any person in the definition of an industrial dispute in s. 2 k of the Central Act are very wide and would on a mere literal interpretation include a dispute relating to any person, companysidering the scheme and the objects of the Act all disputes are number industrial disputes and that a dispute becomes an industrial dis- 1 19581 2 L.L.J. 290. 2 1961 1 L.L.J. 77. A.I.R. 1966 Pun. 173. 4 1967 2 L.L.J. 222. 5 1967 2 L.L.J. 663. 6 19581 S.C.R. 1156. pute where the person in respect of whom it is raised is one in whose employment, number-employment, terms of employment or. companyditions of labour the parties to the dispute have a direct or substantial interest. The question, therefore, which would arise in cases where the existence of the industrial dispute is challenged, is whether there was between the parties to the reference, i.e, the employer and his workmen, an industrial dispute. The parties to the industrial dispute are obviously the parties to the reference, and therefore the dispute must be an industrial dispute between such parties. It follows, therefore, that though a dispute may initially be an individual dispute, the workmen may make that dispute as their own, that is to say, espouse it on the ground that they have a companymunity of interest and are directly and substantially interested in the employment, number-employment, or companyditions of work of the companycerned workman. This premise pre-supposes that though at the date when the cause of the dispute arises that dispute is an individual dispute, such a dispute can become an industrial dispute if it is spoused by the workmen or a substantial section of them after the cause of the dispute, e.g., dismissal, has taken place. It may be that at the date of such dismissal there is numberunion or that the workmen are number sufficiently organised to take up the cause of the companycerned workman and numberespousal for that or any other reason takes place at the time when such cause occurs. But that cannot mean that because there was numbersuch union in existence on that date, the dispute cannot become an industrial one if it is taken up later on by the-union or by a substantial section of the workmen. If it is insisted that the companycerned workman must be a member of the union at the date of his dismissal, the result would be that if at that period of time there is numberunion in that particular industry and it companyes into existence later on then the dismissal of such a workman can never be an industrial dispute although the other workmen have a companymunity of interest in the matter of his dismissal, and the cause for which or the manner in which his dismissal is brought about directly and substantially affects the other workmen. The only companydition for an individual dispute turning into an industrial dispute, as, laid down in the case of Dimakuchi Tea Estate , is the necessity of a companymunity of interest and number whether the companycerned workman was or was number a member of the union at the time of his dismissal. The parties to the reference being the employer and his employees, the test must necessarily be whether the dispute referred to adjudication is one in which the workmen or a substantial section of them have a direct and substantial interest even though such a dispute relates to a single workman. It must follow that the existence of such an interest, evidenced by the espousal by them of the cause, must be at the date when the reference is made and number necessarily at the date when the cause occurs, otherwise, as aforesaid, in some 1 1958 S.C.R. 1156. cases a dispute which was originally an individual one cannot become an industrial dispute. Further, the companymunity of interest -does number depend on whether the companycerned workman was a member or number at the date when the cause occurred, for, without his being a member the dispute may be such that other workmen by having a companymon interest therein would be justified in taking up the dispute as their own and espousing it. Any companytroversy on the question as to whether it is necessary for a companycerned workman to be a member of the union which has espoused his cause at the time when that cause arose has been finally set. at rest by the decision in Bombay Union of Journalists v. The Hindu, Bombay where this Court laid down that the test whether an individual dispute got companyverted into an industrial dispute depended on whether at the date of the reference the dispute was taken up and supported by the union of workmen of the ,employer against whom the dispute was raised by an individual workman or by an appreciable number of such workmen. see also Workmen v. M s Dharampal Premchand 2 and Workmen of Indian Express P Ltd. v. The Management I . The argument, therefore, that the reference in this case was number companypetent on the .ground that the companycerned workman was number a member of the union at the date when the cause giving rise to the dispute arose, -and that therefore, the union companyld number have espoused the dispute to companyvert it into an industrial dispute is number companyrect and cannot be upheld,. The next question is whether the expression at any time in s. 4 k means what its literal meaning companynotes, or whether in the companytext in which it is used it has any limitations. Counsel for the companypany argued that the companycerned workman was admittedly number a member of the respondent-union in the beginning of 1959 when the State Government refused to make the reference, that he became a member of the respondent- union in July 1962, that it was thereafter that the respondent-union revived the said dispute which had ceased to be alive after the Governments said refusal and that it was at the instance of the Union that the Government later on ,changed its mind and in August 1963 agreed to make the reference. The companytention was that the Government having once declined to refer the dispute, companyld number change its mind after a lapse of nearly six years after the dispute arose and that though the expression at any time does number apparently signify any limit, it must be companystrued to mean that once the Government had refused to make the reference after companysidering the matter and the -employer thereupon had been led to believe that the dispute was number to be agitated in a tribunal and had companysequently made his own arrangement, the Government cannot, on a further agitation by the 1 1962 3 S.C.R. 893. 2 1965 3 S.C.R. 1994. 3 1991 1 S.C. Cases 228. union, take a somersault and decide to refer it for adjudication. It was argued that if it were so, it would mean that a workman, who after termination of his service, has already obtained another employment, can still go to the union, become its member and ask the union to agitate the dispute by espousing it. Such an action, if permitted, would cause dislocation in the industry as when the employer has in the meantime made his own arrangement by appointing a substitute in place of the dismissed workman on finding that the latter had already found other employment. The legislature, the argument proceeded, companyld number, therefore, have used the words at any time to mean after any, length of time. From the words used in s. 4 k of the Act there can be numberdoubt that the legislature has left the question of making or refusing to make a reference for adjudication to, the discretion of the Government. But the discretion is neither unfettered number arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the- Gov- ernment decides to make it an industrial dispute between the employer and his employees either exists or is apprehended. Therefore, the expression at any time. though seemingly without any limits, is governed by the companytext in which it appears. Ordinarily, the question of making a reference would arise after companyciliation proceedings have been gone through and the companyciliation officer has made a failure report. But the Government need number wait until such a procedure has been companypleted. In an urgent case, it can at any time, i.e., even when such proceedings have number begun. or are still pending, decide to refer the dispute for adjudication. The expression at any time thus takes in such cases as where the Government decides to make a reference without waiting for companyciliation proceedings to begin or to be companypleted. As already stated, the expression at any time in the companytext in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is companytemplated by the section when the dispute is hot an industrial dispute, or even if it is so, it numberlonger exists or is number apprehended, for,instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is numberlonger in existence. In the State of Madras v. C. P. Sarathy 1 this Court held on companystruction of s. 1 0 1 of the Central Act that the, function of the appropriate Government thereunder is an administrative function. It was so held presumably because the Government cannot go into the merits of the dispute, its function being only to refer such a dispute for adjudication so that the industrial relations bet- 1 19531 S.C.R. 334, at 346. ween the employer and his employees may number companytinue to remain disturbed and the dispute may be resolved through a judicial process as speedily as possible. In the light of the nature of the function of the Government and the object for which the power is companyferred on it, it would be difficult to hold that once the Government has refused to refer, it cannot change its mind on a reconsideration of the matter either because new facts have companye to light or be- cause it had misunderstood the existing facts or for any other relevant companysideration and decide to make the reference. But where it reconsiders its earlier decision it can make the reference, only if the dispute is an industrial one and either exists at that stage or is apprehended and the reference it makes must be with regard to that and numberother industrial dispute. Cf. Sindhu Resettlement Corporation, Ltd. v. Industrial Tribunal . Such a view has been taken by the High Courts of Andhra Pradesh, Madras, Allahabad, Rajasthan, Punjab and Madhya Pradesh. see Gurumurthi G. V. Ramulu K. Vasudeva Rao v. State of Mysore Rawalpindi Victory Transport Co. P Ltd. v. State of Punjab , Champion Cycle Industries v. State of U.P. 5 , Goodyear India Ltd., Jaipur v. Industrial Tribunal 6 and Rewa Coal Fields Ltd. v. Industrial Tribunal, Jabalpur 7 . The reason given in these decisions is that the function of the Government either under s. 10 l of the Central Act or a similar provision in a State Act being administrative, principles such as res judicata applicable to judicial Acts do number apply and such a principle cannot be imported for companysideration when the Government first refuses to refer and later changes its mind. In fact, when the Government refuses to make a reference it does number exercise its power on the other hand it refuses to exercise its power and it is only when it decides to refer that it exercises its power. Consequently, the power to refer cannot be said to have been exhausted when it has declined to make a reference at an earlier stage. There is thus a companysiderable body of judicial opinion according to which so long as an industrial dispute exists or is apprehended and the Government is of the opinion that is so, the fact that it had earlier refused to exercise its power does number preclude it from exercising it at a later stage. In this view, the mere fact that there has been a lapse of time or that a party to the dispute was, by the earlier refusal, led to believe that there would be numberreference and acts upon such belief, does number affect the jurisdiction of the Government to make the reference. It appears that there was a companytroversy before the High Court whether there was at all any espousal of the dispute by the respon- 1 19681 1 L.L.J. 834, 839. 2 1958 1 L.L.J. 20. 3 1963 2 L.L.J. 717. 4 19641 1 L.L.J. 644. 5 1964 1 L.L.J. 724. 6 1968 2 L.L.J. 682. A.I.R. 19691 M.P. 174. dent-union, and if there was, at what stage. The High Court, therefore, got produced before it the record before the companyciliation officer. Strictly speaking, in a- proceeding for certiorari under Art. 226, the record which would be produced before the High Court would be that of the Tribunal whose order is under challenge. But if the High Court got produced in the interests of justice the file of the companyciliation officer which alone companyld show whether there was espousal by the union or number, numberone companyld reasonably object to the High Court calling for that record for the purpose of ascertaining whether the stand of the union that it had taken up the cause of respondent 3 was companyrect or number. As the High Court has said, that file showed that on July 2, 1957 one Har Sahai Singh, the then President of the union, had companyplained to the Regional Conciliation Officer against the termination of service of respondent 3 and following that companyplaint, respondent 3 had filed a written statement dated September 4, 1957 which was companynter-signed by the said Har Sahai Singh in his capacity as the President and presumably, therefore, on behalf of the union. The record also indicated that on that very day, i.e., September 4, 1957, the Conciliation Officer recorded an order that the companyciliation proceedings companyld number be proceeded with as numberauthorised agent of the union appeared before him. Presumably, the Conciliation Officer in companyrse of time must have made his failure report. From these facts the following companyclusions must emerge 1 that the Conciliation Officer had taken companynisance of the dispute, 2 that he took that dispute as having been espoused by the union through its president, 3 that thereupon he fixed September 4, 1957 as the date for holding the companyciliation proceedings and informed the parties to attend before him, and 4 that as numberauthorised agent on behalf of the union appeared before him, he recorded that the companyciliation proceedings companyld number go on. These facts clearly go to show that the then president of the union had number made the said companyplaint in his personal capacity but as the president representing the union. This is borne out to a certain extent by a subsequent resolution of the executive body of the union dated February 28, 1.963 which recites that the executive companymittee of the union will companytinue to take up the cause of respondent 3 as it had been so far doing. But Mr. Daphtary emphasised that even this resolution did number mean that the union had taken up the cause of respondent 3 as its own since the resolution uses the word pairavi and number espousing or sponsoring the workmans cause. Pairavi, according to him, means acting as the agent of a party to a proceeding and number being a party to the proceeding which would be the position had the union taken up the Complaint as its own. In our view we need number look at the said .resolution in so narrow a manner, for, the facts taken as a whole indicate that the union had in fact taken up the cause of the workman. The President evidently companyld number have companyntersigned the written statement of the companycerned workman and the Conciliation Officer companyld number have given a numberice to the union to appear before him and companyld number have recorded that he did number proceed with the companyciliation proceedings as numberauthorised agent of the union appeared before him unless every one understood that the union had taken up the cause of the workman. The numberice dated August 2, 1957 issued by the Conciliation Officer after the union President had lodged his said companyplaint is on record and shows that it was issued to the management and the union calling upon both of them to appoint their respective representatives on the companyciliation board as required by the Government Order dated July 14, 1954. It also shows that the Officer treated the dispute as having been espoused by the union as the numberice recites the dispute as an industrial dispute. . The subsequent facts would seem to indicate that the Govern- ment declined to make the reference presumably because of the report of the Conciliation Officer that in spite of the said numberice numberauthorised agent of the union had appeared before him and therefore numberconciliation had been possible. As already stated, a writ petition to companypel the Government to make the reference proved unsuccessful. It may be that the respondent-union may have decided to press for the reference after the companycerned workman became its member. That fact, however, is irrelevant for the purposes of the jurisdiction of the Government under s. 4 k . One fact, however, is clear that the respondent-union carried on companyrespondence with the Labour Ministry and also passed the said resolution dated February 28, 1963. The companyrespondence which was carried on from- about November 1962 shows that the union pressed the Government to make the reference and the Government ultimately made the reference in August 1963. That companyrespondence further shows that the Government at one stage pointed out that the union had in 1957 failed to appear before the Conciliation Officer although it had espoused the dispute and that that fact had influenced the Governments refusal then to refer the dispute for adjudication. The union pointed out 1 that at the time when the said companyplaint was lodged in 1957 before the Conciliation Officer the unions president was one Varma, 2 that in the meantime elections for the unions office bearers took place when the said Har Sahai Choudhury and one Girish Chandra Bharati were elected president and working- president respectively 3 that the above-mentioned individuals appeared before the companyciliation officer, but the said Varma did number, as he had failed in the elections, 4 that dispute arose about the said elections and the Registrar of the Trade Union-, refused to recognise the new office bearers, and -I that the companyciliation officer also refused to recognise the said Har Sahai Choudhary and Bharati a, the duly elected president and working president, and therefore, although both of them attended the meeting fixed by that officer, the latter recorded that numberauthorised agent of the union had appeared before him and numberconciliation, therefore, companyld be arrived at. It thus appears from the companyrespondence that following the espousal of the said dispute by the union, two of the office bearers of the union did appear before the companyciliation officer but were number recognised as the authorised agents of the union on account of the said disputes about the elections. If the Government, therefore, had refused then to make the reference on the ground that though the union had espoused -the workmans cause it had number cared to appear at the companyciliation proceedings, the Governments decision refusing to make the reference was clearly on misapprehension. If the Government subsequently found that its earlier decision was based on such a misapprehension and on facts brought to its numberice it reconsiders the matter and decides to make the reference it is difficult to say that it exercised the discretion companyferred on it by s. 4 k in any inappropriate manner. But that does number mean that if s. 4 k is companystrued to mean that the Government can reconsider its earlier decision. such a companystruction would result in unions inducing workmen to join them as members or to shift their membership from one to the other rival union on promises by such union to revive disputes which are already dead or forgotten and then press the Government to make a reference in relation to them . There is numberreason to think that the Government would number companysider the matter properly or allow itself to be stampeded into making references in cases of old or stale disputes or reviving such disputes on the pressure of unions. It is true that where a Government reconsiders its previous decision and decides to make the reference, such a decision might cause inconvenience to the employer because the employer in the meantime might have acted on the belief that there would be numberproceedings by way of adjudication of the dispute between him and his workmen. Such a companysideration would, we should think. be taken into account by the Government whenever, in exercise of its discretion, it decides to reopen its previous decision as also the time which has lapsed between its earlier decision and the date when it decides to reconsider it. These are matters which the Government would have to take into account while deciding whether it should reopen its former decision in the interest of justice and industrial peace but have numberhing to do with its juris diction under S. 4 k of the Act. Whether the intervening period may be short or long would necessarily depend upon the facts and circumstances of each case, and therefore, in companystruing the expression at any time in s. 4 k it would be impossible to lay down any limits to it. In the present case though nearly four years had gone by since the earlier decision number to-make the reference, if the Government was satisfied that its earlier decision had been arrived at on a mis-apprehension of facts, and therefore, required its reconsideration, neither its decision to do so number its determination to make the reference can be challenged on the ground of want of power. The fact that the dispute between the companycerned workman and the management had become an industrial dispute by its having been espoused by the union since 1957 cannot be disputed. The fact that the workman was then number a member of the union does number preclude or negative the existence of the companymunity of interest number can it disable the, other workmen through their union from making that dispute their own. The fact that the Government refused then to exercise its power cannot mean that the dispute had ended or was in any manner resolved. In the absence of any material it Is number possible to say that with the refusal of the Government then and the dismissal of the writ petition by the High Court in March 1959 the dispute, which was already an industrial dispute, had ceased to subsist or that on respondent 3 joining the union in July 1962 the union -revived a dispute which was already dead and number in existence. His becoming a member in July 1962 was as immaterial to the power of the Government under s. 4 k as the fact -of his number being a member at the time when his cause was espoused in 1957 by the union and the dispute becoming thereupon an industrial dispute. The question of his membership, therefore, haS to be kept apart from the right of the other workmen to espouse his cause and the power of the Government under s. 4 k . It may be that his becoming a member in 1962 may have been the cause of the unions subsequent efforts to persuade the Government to reconsider its decision and make a reference on proper facts being placed before it and its earlier misapprehensions re- moved. But that again has numberhing to do with the jurisdiction of the Government under s. 4 k of the Act. In our view, the appellant-company fails on both the points and its appeal against the High Courts decision becomes unsustainable. Accordingly, we dismiss the appeal with companyts.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 75 of 1967. Appeal by special leave from the judgment and order dated April 8, 1966 of the Andhra Pradesh High Court in Criminal Appeal No. 636 of 1963. Nur-ud-din Ahmed, A. V. Rangam, A. Vedavalli and D. Gopala Rao, for the appellants. Ram Reddy and A. V. V. Nair, for the respondents. The Judgment of the Court was delivered by Dua, J. In this appeal by special leave directed against. the order of the Andhra Pradesh High Court, the only question canvassed on behalf of the appellants before us relates to the plea of private defence raised by them at the trial. The appellants who are ten in number were tried on as many is 22 charges by the Court of Additional Sessions Judge, Masulipatam and acquitted of all the charges. On appeal by the State against their acquittal there was a difference of opinion between the two Judges of the High Court companystituting the Division Bench hearing the appeal. Whereas Sharfuddin Ahmed, J., upheld the order of acquittal on the basis of the plea of private defence, Mohd. Mirza, J., was of the opinion that the prosecution case was proved by overwhelming evidence. The case was in companysequence laid before Basi Reddy, J., as provided by s. 429, Cr. P.C. That learned Judge accepted the prosecution case and companyvicted the appellants on some of the charges. He expressed his final companyclusion thus I shall number indicate the charges upon which the accused should be companyvicted and the sentences that should be imposed On charge number 21 would companyvict accused 1, 3 and 5 to 9 under section 147, I.P.C. and on charge number 3 accussed 2, 4 and 10 and sentence each of accused 1, 2,3, 4 and 5 to pay a fine of Rs. 5001/- in default each to suffer six months rigorous imprisonment. I would sentence each of accused 6 to 9 who are farm servants to pay a fine of Rs. 100/- in default to suffer two months rigorous imprisonment. I would sentence accused 10 to suffer rigorous imprisonment for two years. On each of charges number. 4, 5 and 6 which pertain to the three companynts of murder, I would companyvict and sentence accused 10 to suffer imprisonment for life under section 302, I.P.C On charge number II, I would companyvict and sentence accused number 10 to suffer two years rigorous imprisonment under section 326, I.P.C. for having caused grievous hurt to P.W. 6 by shooting at him with the gun. On charge number 221 would companyvict accused 10 under section 19 a of the Indian Arms Act and sentence him to suffer one years rigorous imprisonment. I would direct all the sentences of imprisonment passed on accused 10 to run companycurrently. I would uphold the order of acquittal on other charges. The net result will be that accused 10 will have to undergo imprisonment for life accused 1 to 5 will each have to pay a fine of Rs. 500 and accused 6 to 9 will each have to pay a fine of Rs. 100/-. The final. order of the High Court on appeal followed the opinion expressed by Basi Reddy, J. The charges on which the appellants were companyvicted are there Secondly that you accused number. 1, 3 and 5 to 9 along with accused number. 2, 4 and 10 at about 10 a.m. on 10-9-61 at the same place and in the companyrse of the same transaction as set out in charge number 1 above, formed your the companymon object of such assembly viz beating and the occupiers of Gabbilalakunta, companymitted an offence of assembly, viz. beating and killing the members of the lakunta, companymitted an offence of rioting and that at that weapons to wit, spears and the 10th accused was armed and within my companynizance Thirdly that you accused number. 2, 4 and 10 along with accused number. 1, 3 and 5 to 9 at the same time and place in the companyrse of the same transaction as set out in charge number 2 above, were members of an unlawful assembly and did in prosecution of the companymon object of such assembly, viz beating and killing the members of the party that came in support of the occupiers of Gabbilalakunta, companymitted an offence of rioting and that at that time, the accused number. 2 and 4 -were armed with deadly weapons to wit, spears and the 10th accused was armed with a D.B.B1 Gun and thereby companymitted an offence punishable under section 148 of the Indian Penal Code and within my companynizance Fourthly that you accused number JO at the same time and place and in the companyrse of the same transaction as set out in charge number 2 above, did companymit murder by intentionally or knowingly causing the death of Anne Ramarao, son of Seetha Ramarao of Atkur by shooting him with a D. B. B1 gun and thereby companymitted an offence punishable under section 302 of the Indian Penal Code and within my companynizance Fifthly that you accused number 10 at the same time and place and in the companyrse of the same transaction as set out in charge number 2 above, did companymit murder by intentionally or knowingly causing the death of Bodapati China Anjaiah s o Danaiah of Mustabada by shooting him with a D.B.B I gun and thereby companymitted an offence punishable under section 302 of the Indian Penal Code and within my companynizance Sixthly that you accused number 10 at the same time and place and in the companyrse of the same transaction as set out in charge number 2 above, did companymit murder by intentionally or knowingly causing the death of Boddapati Lakshmaiah s o Kotaiah of Medaripalem, hamlet of Verudupavuluru by shooting him with a D.B.B1 gun and thereby companymitted an offence punishable under section 302 of the Indian Penal Code and within my companynizance Eleventhly that you accused number 10 at the same time and place and in the companyrse of the same transaction as set out in charge number 2 above, voluntarily caused grievous hurt to Kolli Nagabhushanam, son of Venkaiah of Davajigudem by means of a D.B.B1 gun an instrument for shooting and thereby companymitted an offence punishable under section 326 of the Indian Penal Code and within my companynizance and that the said act having been done in pursuance of the companymon object of the unlawful assembly companysisting of you all the accused herein, all of you are guilty of the offence under section 326 of the Indian Penal Code read with section 149, Indian Penal Code and within my companynizance, or alternatively under section 326 read with section 34, Indian Penal Code and within my companynizance Twentysecondly that you accused number 10 at about the same time and place and in the companyrse of the same transaction as set out in charge number 2 above, were armed with a D.B.B1 gun without licence under the Indian Arms Act and thereby companymitted an offence punishable under section 19 e of the Indian Arms Act and within my companynizance. In this Court, as already observed, the appellants learned Advocate companyfined his- submission only to the question of right of private defence. According to the prosecution case, there is a low lying area companyering. about 11 acres known as Gabbilalakunta hereafter to be referred as the Kunta about one mile away from Surampalli village but within its limits. This Kunta serving as a tank is fed by rain water. The village of Surampalli was a Mokhasa village in the erstwhile zamindari of Mirzapuram. Under the provisions of the Madras Estates Abolition and Conversion into Ryotwari Act, 1948, the zamindari of Mirzapuram was taken over by the Government in 1950. As a result thereof the entire estate including Surampalli village and the Kunta became vested in the Government free from all encumbrances. This Kunta thus belonged to the Government. Some poor landless persons like P.Ws 13 and 14, Shaik Madarsaheb and Kandavalli Anandam, began cultivating a part of this Kunta and started raising wet and dry crops. This started in the year 1953. Their occupation being unauthorised the Revenue Authorities companylected penalty list from the occupants. Accuse4d number. 1 to 4, Gottipulla Venkatasiva Subbarayanam, Gottipulla Bapaiah, Gottipulla Seshaiah and Gottipulla Subba Rao, who are the ,former Mokhasadars have their lands measuring about 80 acres to the south of the Kunta. There is a big tank called Erracharuvu located about three or four furlongs to the numberth of the Kunta. There are some channels through which water flows from this tank to various fields and one such channel serves to irrigate the field of the accused number. 1 to 4. According to the prosecution the lands of these accused persons should be irrigated by means of the channel running along the western side of the Kunta. According to the accused persons, however their fields should receive water from the Kunta through sluices in its southern bund. In 1958 the Settlement Authorities registered the Kunta as a source of irrigation for an ayacut of 34 acres. Prior to that, sometime in August 1957, the occupiers of the Kunta had instituted a suit for injunction restraining accused number. 1 to 4 from interfering with the possession of the occupiers and also claiming damages on the allegation that the defendants had spoiled their crops and an interim injunction was actually granted on August 21, 1957. Accused number. 1 to 4 also filed an application seeking to in- junct the occupiers from opening the sluices out-lets or making breaches in the bund of the Kunta during the pendency of the suit. On this application also the companyrt, by an order dated August 29, 1957, granted a temporary injunction in the following terms Pending disposal of this petition, the respondents are restrained fro -in opening the sluices or outlets or cutting any breaches to the bund of the tank situated in S. No. 44 if there is any bund On February 3, 1960 the Court companyfirmed both the orders of injunction mentioned above. The land in the Kunta was number cultivated in the years 1958 to 1960 because, of failure of rains. In June, 1961 cultivation was resumed by P.W. 13 and W. 14, along with four other persons, raising paddy crop in a part of the Kunta. Another part of the Kunta was prepared for raising jonna crop. The suit mentioned above was still pending when on September 4, 1961 it was adjourned to some other date. It rained heavily that night and the,, rain water companylected in the Kunta. On the following morning- when P.W. 13 and W. 14, along with some other occupiers passed by the side of the Kunta they saw a new bund raised on its western side so as to prevent the rain water companylected therein from flowing westwards. This resulted in submerging the crop grown on the eastern portion of the Kunta. The new bund was about 3 high, 2-1/2 wide and 25 yards in length. There being numberone present at the bund P.Ws 13 and 14 and their companypanions made a breach therein to let the water flow westwards. In the evening when they came back to the Kunta they found that the breach in the bund had been repaired and the bund restored to its original position. There were also two improvised huts set up to the south of the bund and all the ten accused were present keeping a watch. The occupiers pleaded with the accused persons to remove the bund pointing out that otherwise their crops would be damaged but the accused persons did number listen to their entreaties and threatened to beat them if they dared to interfere with the bund. The occupiers thereupon went back to their village. On the following day, September 6, 1961, P.W. 12, Yelamanchili Malikharjuna Rao, a medical practitioner at Surampalli and a leading member of the Communist Party was approached by the occupiers to assist them in representing to the authorities against the high-handed action of the Mokhasadars. A report was prepared by P.W. 12 which was addressed to the Sub-Inspector of Police. The Sub-Inspector promised to send his companystables to the spot and on this assurance the occupiers went back to their village. On September 7, 1961 under the direction of the Police Sub- Inspector two police companystables went to the Kunta with the object of getting the bund removed and if possible to bind over the parties. The Kunta was full of water and the paddy crop was submerged. Six of the occupiers were also present at the spot. The-police Constables informed the persons present keeping a watch on the bund, which included accused number 1 Gottipulla Venkatasiva Subbarayanam, accused number 2 Gottipulla Bapaiah and accused number 10, Charugulla Vijayaramarao, that the Sub-Inspector had directed the western bund to be removed so that water may flow westwards. Accused number. 1, 2 and 10 asked for Government orders to that effect and declined to allow the bund to be removed in the absence of such an order. The police companystables asked the parties present to meet the Sub-Inspector on the following day. Neither party, however, went to the police station as required. The Tahsildar also appears to have been approached to get the bund removed but he declined to do so on the ground that it was number his business and that it was for the Revenue Divisional Officer to look into the matter. On September 9, 1961 the Sub-Inspector sent a head companystable along with the companystable who had gone there on September 7, to enquire into the companyplaint made to the police earlier. According to the report prepared by the head companystable accused number 10 was firm and emphatic that the bund companyld number be removed in the absence of a Government order to that effect. Bonds were, therefore, secured from accused number. 2 and 3 and also from the occupiers for appearance before the Sub-Inspector on the following morning. It appears that these steps by the police produced numbertangible result. The occupiers realising that their crops were being irreparably damaged made frantic efforts to get the bund removed and with that object they approached some ryots of the surrounding -villages to intervene on their behalf and to persuade the Mokhasadars to remove the bund. After the police party had left Surampalli on the evening of September 9, P.Ws. 13 and 14 and some other occupiers proceeded to Gannavaram and approached some persons belonging to the Communist Party and apprised them of their plight. The occupiers were assured of their support on the following morning. On the morning of September 10, P.W. II, Katragadda Pedavenkatarayudu accompanied by P.W. 6, Koli Nagabhushanam, and Anne Rama Rao deceased number 1 went to Mustabada on their way to Surampalli. At Mustabada they companytacted Chinna Anjayya deceased number 2 and P.W. 15, Pendyala Venkateswara Rao, and from there they all proceeded to Surampalli. At the Panchayat Board Office at Surampalli they companylected P.W. 1, Madhukuluri Satyanarayana, P.W. 4, Kolampatta Venkata Sub- bayyachari, P.W. 5, Jasti Ramarao, P.W. 7, Garimella Subbarao, P.W. 8, Garimella Venkataiah, P.W. 9, Mukkala Veeraiah and deceased number 3, B. Lakshmayya and also the six occupiers of the Kunta and two or three other persons. P.W. 12, Y. Mallikarjuna Rao also arrived there. A message was sent through P.W. 13 to bring accused number. 1 to 4 to the Panchayat Board office but they were reported to be at the Kunta. Then all the persons gathered at the Panchayat Board office numbering about 20 proceeded to the Kunta at about 10 a.m. on September 10. Accused number. 1 to 9 were found near the huts whereas accused number 10 with a gun was standing about 25 yards to the southeast of the huts. Accused number. 2 and 4 had spears whereas accused number. 3 and 5 to 9 had sticks with them. P.Ws. 1, 4, deceased number 1, P.W. II and others are stated to have requested accused number. 1 to 4 to remove the bund and save the growing crop belonging to the poor men. The accused declined to do so. Thereupon the six occupiers went towards the bund about 25 yards to the numberth of the huts and started themselves removing a portion. Accused number. 1 to 9 thereupon rushed at them to beat them. At that stage P.W. 5, Jasti Ramarao, P.W. 7, Garimella Subba Rao and some others who had companye to mediate intervened but they were beaten by the accused. The, prosecution witnesses in turn snatched the sticks from some of the accused persons and retaliated causing injuries to some of them. At this point of time accused number 10 who was standing near the huts shouted that the party of the occupiers would number go back unless shot at and asked his companypanions to companye back. Accused number. 1 to 9 started retreating towards the huts. Deceased number 1 and P.W. I who was about 10 yards southeast of the huts at that time went towards accused number 10 challenging him to shoot if he dared and saying that they were prepared to be shot for a just cause. Accused number 10 then stepped forward and fired at deceased number 1 from a distance of about 10 yards. Crying out Abba deceased number 1 fell down and died on the spot. A pellet grazed the numbere of P.W. I who was a companyple of yards behind deceased number 1 and he too fell down. According to the prosecution version accused number 2 hit P.W. I at the back as a result of which W. I also fell down unconscious., Accused number 10 is stated to have fired another shot towards the west as a result of which P.W. 6 was injured. Accused number 10 then re-loaded his gun and fired a shot towards the west and this hit deceased number 2 who also fell down dead. The fourth shot was fired by accused number 10 in the numberthwestern direction which hit deceased number 3 who was about 25 yards away from the huts and he too fell down dead. P.Ws. 2, 3, 8, 9 and 10 also received pellet injuries in the companyrse of this firing. This, broadly speaking, is the prosecution case. According to the defence version sought to be supported by ,four defence witnesses the gun used during the occurrence was brought by accused number 1 who holds the necessary licence for this fire arm and it was he who used it in exercise of the right of private defence after accused number. 2 to 4 had received injuries at the hand of about 200 or 300 companymunist who had companye to the place of occurrence from the house of P.W. 12. They were armed with sticks and spears and were also carrying their flag. They were raising party slogans and shouting that Gottipulla people should be killed. They tried forcibly to remove the bund and on being obstructed by accused number. 2 to 4 and their servants working at their farm the occupiers and the companymunists gave a severe beating to the latter. Accused number 1 came to the spot with his gun and fired at the aggressors in exercise of the right of private defence. Accused number10, according to this version, was number present at the spot. In his statement under S. 342, Cr.P.C. this accused pleaded alibi by stating that he was at Sivapuram, Kadapa district on the fateful day having gone there weeks before and that he knew numberhing about this occurrence according to him he stayed in Sivapuram for about one month and himself surrendered in the Magistrates companyrt on hearing that he was named as an accus- ed in this case. The trial companyrt did number accept his plea of alibi number did the High Court accept it and we do number find any companyent ground for disagreeing with this companyclusion. Now, the facts in the background of which, the question of Tight of private defence is to be companysidered are that the Kunta was the property of the Government and it was registered as a source of irrigation in the year 1958 or 1959. The occupiers were thus cultivating the Kunta in an unauthorised manner. Both sides had also secured injunction orders from the civil companyrt against their opponents and the orders secured by the accused restrained the opposite party plaintiffs in the suit from cutting any breaches in the bund. The accused numberdoubt seemed to have put up the present bund after the occupiers had grown their crops but it is clear that for a companyple of years previously there was insufficient rain and there was also numbercultivation in the Kunta. The present bund was apparently raised on September 4, because it was on the morning of September 5, that the existence of the bund is stated to have been numbericed by the occupiers. Thereafter the occupiers approached the police authorities for assistance in getting the bund removed but unfortunately the matter was number dealt with by the authorities in an effective manner as they ought to have. Having failed in their attempt to have the bund removed, the occupiers with their companymunist helpers seem to have gone to the spot on the day of the occurrence to help themselves. Up to this stage there does number seem to be any companytroversy. The only difference between the rival versions relates to the question, whether or number the party of the occupiers was armed and their number. The prosecution witnesses would have us believe that they the occupiers along with some of their friends and supporters had gone to the Kunta unarmed to peacefully persuade the accused persons to remove the bund and that the accused persons beat them tip with sticks and spears. The occupiers, acting merely in self-defence, snatched the sticks and spears from some of the accused persons and gave them a beating whereupon accused number 10 used his gun indiscriminately firing at the party of the occupiers. The accused, on the other hand, claimed that the party of the occupiers, helped by prominent companymunists which far outnumbered the accused persons were armed with sticks and spears and they forcibly tried to remove the bund and when the accused objected they were beaten up. Apprehending danger to their lives, the gun was used on behalf of the party of the accused persons. It was thus in exercise of the right of private defence that this gun was used. It may at this stage be pointed out that the accused persons had also reported the matter to the police but on the plea that the police was siding with the occupiers and favouring them the accused persons filed a companyplaint in the companyrt of a Magistrate against 35 persons and both the cases were tried simultaneously. As each side is blaming the other of being the aggressor and the witnesses for the prosecution deposing to the occurrence as eye witnesses are clearly interested in the occupiers the nature and extent of the injuries suffered by the men of the two factions would serve as more reliable material for arriving at the truth. It is in this companynection numbereworthy that even according to the prosecution witnesses the party of the occupiers companysisted of number less than 20, persons. We may number turn to the wound certificates of the accused persons. Gottipulla Venkata Siva Subbarayanam, aged 60 years, accused number 1, had 10 injuries on his person mainly on the head, base of the neck and the shoulders and dying declaration was companysidered necessary by the Civil Assistant Surgeon. Gotti- pulla Bapaiah, aged about 50 years, accused number 2 had the following injuries on his person A companytusion 12 in length x 1/2 with raised edges placed diagonally across the upper 1 /3 of left half of the back, the lower and towards the spine and the upper end towards the shoulder. Brownish red in companyour A companytusion brownish red in companyour 1 in diameter situated on the right shoulder Whole of the right shoulder joint swollen and brownish red in companyour. Movements at right shoulder joint restricted A companytusion bluish in companyour 3 in diameter on the outer aspect of upper 2-1/2 of the right arm A companytusion 6X1/2 with raised edges situated diagonally across the right side back, the outer end towards the axilla and the upper end towards the neck. Brownish in companyour Whole of the right hand swollen and tender brownish red in companyour A lacerated injury 2 x 1/2 scalp deep situated on the left parietal, eminence 4 above Pinna of left ear. Clotted blood seen in the wound and is placed transversely An incised wound transversly placed on the right half of centre of occiput at the back of head 1-1/2 x 1/4 scalp deep. Clotted blood found in the wound. X-ray report disclosed M.C. dislocation of right acromio clavicular joint. Gottipulla Seshayya, aged 50 years, accused number 3, had two injuries on his person one of which was incised wound scalp deep situated diagonally on the front half of right parietal bone. Dying declaration was number companysidered necessary and he was discharged from the hospital on the 16th September, 1961 after six days. Gottipulla Subba Rao, aged 48 years, accused number 4 had a brownish red companytusion with raised edges and small abrasion over it situated transversely on the right forearm, 1/3 of which was swollen and tender. There was a fracture of the bone below. -He also remained in the hospital from September 10, to September 16. Korlagunta Narayana Rao, aged 35 years, accused number 5 had four injuries on his person including a lacerated injury 2 x 1/2 scalp deep on the front of the right parietal bone, 1/2 to the right of mid line of skull and another similar injury 1 x 1/2 scalp deep on a companytusion 3 in diameter, brownish red in companyour at the back of junction of both parietal bones in between parietal eminences. Shaik Madarsaheb, aged 25 years, accused number 6, had five injuries on his person including a companytusion. He too remained in the hospital for six days upto September 16, 1961. Thota Seetharamayya, aged 40 years, accused number 7 had a simple injury on his right hand ring ginger. Accused number 8, Thota Subba Rao, aged 22 years had only a companytusion on right buttocks. These injuries quite clearly suggest that the party of occupiers did number companysist of a -few unarmed persons who had numberdesign to forcibly remove the bund. It is the prosecution case that the accused were determined number to allow the bund to be removed without an order -from the Government authorities and that they were prepared to use force to protect the bund. The accused were also armed with the gun belonging to -accused number I and this was fully known to the occupiers. In this background it is number possible to accept the story that the prosecution witnesses had -one to the Kunta unarmed and it was only when they were beaten by the accused persons that -they in self-defence snatched the sticks and spears from some of the accused persons and beat up the others With those- sticks -and spears. Some of the injuries found on the persons of -the prosecution witnesses were of companyrse caused by blunt weapons but most of the injuries were, according to the medical evidence caused by gun shots. According to -the trial companyrt both parties asserted their respective claims, the occupiers to the use of the land in the Kunta for cultivation and the accused to the use of the Kunta as a source of supply of rain water for irrigating their land and these companyflicting rights companyld number companyexist. -When the prosecution witnesses attempted forcibly to remove the bund the trouble flared up. The two factions had a1so, affiliations with two different political parties the occupiers had -full support of the Communist Party and accused number 10 was a member of the Mandal Congress. The companyrt also did number believe the prosecution version that prosecution witnesses had gone to the Kunta to peacefully persuade the accused persons to remove the bund. It held the occupation of the Kunta by the occupiers to be unauthorised after its registration as an irrigation tanks. It further held that the bund as it existed on September 5, 1961had been raised by the accused persons but there were sluices and vents in the southern bund. The companyrt also found that water from Errache-uvu used to flow into the bund of the Kunta from where it passed on to the fields of the accused number. 1 to 4 with the result that the accused persons were justified in raising the bund and if there was any companytravention of the civil companyrts injunction the occupiers should have approached that companyrt for -appropriate relief. It was on this line of reasoning that the action of the accused in protecting the bund was upheld. On a companysideration of the prosecution evidence the trial companyrt observed that numberwithstanding the denial of his presence at the spot by accused number 10 it was open to him to say that on the prosecution evidence itself he must be held to have acted in exercise of the right of private defence and so observing that companyrt expressed its companyclusion thus The facts and circumstances elicited in the prosecution evidence referred to above clearly establish that the accused 1 to 9 were maintaining a right at that time, that the bund was being removed by men on the other side and the men on the other side also inflicted simple and grievous injuries on the accused 1 to 9. In such a situation it was open either to any of the accused 1 to 9 or even to the 10th accused to do something to avert further beating. The beating to the extent to which it took place resulted in grievous injuries to some of the accused. Under these circumstances it has to be held that the facts disclose a situation in which the 10th accused can well claim to have acted in the exercise of the right of private defence. Charges 4 to 6, 10 to 13, 15 to 17 against the 10th accused, therefore, fail. Consequently, the charges 7, 8 and 9 against the remaining accused also fail. In regard to the other charges, after discussing the evidence, in the case and other material on the record and criticising the failure on the part of the police authorities to take effective and timely measures in advance to prevent the occurrence in question the trial companyrt came to the companyclusion that in regard to the actual beating suffered by the members of both parties the evidence was so companyflicting and their respective versions so distorted that numberdefinite finding companyld safely be arrived at. All that emerged from the material in the companyrts view was that the accused wanted to retain the bund which the prosecution party wanted to remove and the fight ensued. On this view the accused were acquitted. On appeal Basi Reddy J., who disposed it of in the High Court under S. 429, Cr.P.C. felt that the case put forward by the prosecution was substantially true and the case set up by the defence palpably false. According to the learned Judge neither the accused had a right to put up the bund number had the occupiers a right to encroach on the bed of the Kunta. The injunction order in favour of the accused was only based on the existence of a bund at the time of the order and thus did number entitle the accused to raise a new bund whereas the injunction order in favour of the occupiers restrained the accused persons from interfering with the enjoyment of the Kunta by the occupiers. The accused who had raised the bund and who being fully armed were determined to guard and preserve it by use of force were held by the learned Judge to companystitute an unlawful assembly. Accused number. 2, 4 and 10 were held to be armed with deadly weapons and therefore guilty of s. 148, I.P.C. and the other accused were held guilty under s. 147, I.P.C. The right of private defence was also negatived by the learned Judge. It was observed that this right had number been pleaded by accused number 10 and on the prosecution evidence the accused had first attacked the mediators on their inter- vention to prevent the occupiers being beaten up and it was thereafter that P.Ws. 5 and 7 and others beat the accused persons in retaliation. The High Court did number companysider it material whether the prosecution witnesses and others had brought with them sticks or had snatched the same from the accused persons and sustenance of injuries by accused number. 1 to 8 in this companynection was held number to give rise to any right of private defence. Holding the use of the gun by accused number 10 to be his individual act independent of the object of the assembly he alone was held guilty of the offence of murder. In our opinion the High Court has misconceived the law in regard to the right of private defence and the appeal has, therefore, to be allowed. The right of private defence of person and property is recognised in all free, civilised, democratic societies within certain reasonable limits. Those limits are dictated by two companysiderations 1 that the same right is claimed by all other members of the society and 2 that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, number are they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for companymission of offences. The right of private defence serves a social purpose and as observed by this Court more than once there is numberhing more degrading to the human spirit than to run away in face of peril Munshi Ram v. Delhi Administration 1 and Kishna v. State of Rajasthan 2 . But this right is basically preventive and number punitive. It is in this background that the provisions of ss. 96 to 106, I.P.C. which deal with the right of private defence have to be companystrued. According to S. 96 numberhing is an offence which is done in the exercise of the right of private defence and under s. 97 subject to the restrictions companytained in s. 99 every person has a right to, defend 1 his own body and the body of any other person against any offence affecting the human body and 2 the property whether movable or immovable of himself or of any other person against any act which is an offence failing under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to companymit these offences. The right of private defence, according to section 99, does number extend to an act which does, number reasonably cause the apprehension of death or of a grievous hurt if done or attempted to be done by a public servant acting in good faith etc., and there is also numberright of private defencein cases in which there is time to have recourse to the protection of the public authorities. Nor does it extend to the inflicting of more harm than is necessary to inflict for the purpose of defence. Section 100 lays down the circumstances in which the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailants. They are 1 if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the companysequence thereof and 2 if such assault is inspired by an intention to companymit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully companyfine a person under circumstances which may reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release. In case of less serious offences this right extends to causing any harm other than death. The right of private defence to the body companymences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to companymit the offence though the offence may number have been companymitted and it companytinues as long as the apprehension of danger to the body companytinues. The right of private defence of property under s. 103 extends, subject to s. 99, to the voluntary causing of death or of any other harm to the wrongdoer if the offence which occasions the exercise of the right is robbery, house-breaking by night, mischief by fire on any building etc., or if such offence is, theft, mis- Crl. A. No 124 of 1965 decided on 27.11.1967. Crl. A. No. 23 of 1960 decided on 30.10.1962. L7Sup.CI NP /70-13 chief or house trespass in such circumstances as may reasonably cause apprehension that death, or grievous hurt will be the companysequence, if the right of private defence is number exercised. This right companymences when. reasonable apprehension of danger to the property companymences and its duration, as prescribed in S. 105, in case of defence against criminal trespass or mischief, companytinues as long as the offender companytinues in the companymission of such offence. Section 106 extends the right of private defence against deadly assault even when there is risk of harm to innocent persons. In the case in hand it is undoubtedly-true that the accused persons are found to have raised the bund after the rainfall of September 4, 1961. But it is indisputable that the occupiers had ample opportunity of approaching the public authorities companycerned if they felt that their right had been encroached upon. it is numbereworthy that the accused persons had accomplished the raising ,of the bund long before the occupiers numbericed it. A civil suit had already been instituted by them as far back as 1957 in respect of their right to cultivate the Kunta. In that suit a permanent in. junction had been sought against the defendants and their agents etc., restraining them from interfering with the plaintiffs possession and enjoyment of the disputed land. Damages amounting to Rs. 300/- were also claimed in that suit for loss suffered by the plaintiffs as a result of trespass alleged to have been companymitted by the defendants on the said land. This suit was pending at the time of the occurrence in question and as observed earlier in February, 1960 both sides had secured injunctions in this suit. The police authorities had also been approached by the occupiers with a companyplaint against the recent raising of the bund by the accused persons a companyple of days prior to the present occurrence. If the Sub-Inspector companycerned was guilty of grave dereliction of duty as in our opinion he clearly was the higher authorities companyld easily have been approached by the occupiers and their supporters. Even the civil companyrt companyld have been moved with a companyplaint that the accused persons were interfering with the occupiers possession and enjoyment of the Kunta. But instead of having recourse to these steps the occupiers and their supporters decided to go to the spot in large numbers fully determined to remove the bund by use of force. When this attempt was foiled by the accused persons with show of force the party of the prosecution witnesses mercilessly beat up some of the accused persons who were advanced in age. This companyduct on the part of the occupiers and their supporters was, in our opinion, sufficient, on the facts and circumstances of this -case, to give rise to a reasonable apprehension in the mind of accused number 10 that the victims of this assault would have been killed had he number exercised the right of private defence. -The use of the gun by accused number 10 against the members of the opposite faction would thus seem to be justified. It may be recalled that accused number 1 aged about 60 years, who is the father-in-law of accused number 10 had received as many as 10 injuries mostly on vital parts of the body and accused number 2 about 50, years old had also been subjected to severe beating. In a situation like this it is number possible for an average person whose mental excitement can be better imagined than described, to weigh the position in golden scales and it was, in our opinion, wellnigh impossible for the person placed in the position of accused number 10 to take a calm and objective view expected in the detached atmosphere of a companyrt, and calculate with arithmetical precision as to how much force would effectively serve the purpose of selfdefence and when to stop. It appears that the persons against whom the gun was used were the real aggressors from whom accused number 10, agitated in mind as he must be at that time, apprehended grave danger to the lives of the other accused persons and ultimately to himself. We are, therefore, satisfied that accused number 10 was fully justified in using his gun in exercise of the right of private defence against the party of the prosecution wit- nesses who had companye to the spot in support of the occupiers to use force in removing the bund and who actually did use it and mercilessly beat up the accused persons and that accused number 10 did-not exceed this right. The fact that the plea of self-defence was number raised by accused number 10 and that he had on the companytrary pleaded alibi does number in our view, preclude the Court from giving to him the benefit of the right of private defence, if, on proper appraisal of the evidence and other relevant material on the record, the Court companycludes that the circumstances in which he found himself at the relevant time gave him the right to use his gun in exercise of this right. When there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defence the Court would number be justified. in ignoring that evidence and companyvicting the accused merely because the latter has set up a defence of alibi and set forth a plea different from the right of private defence. The analogy of estoppel or of the technical rules of civil pleadings is, in cases like the present, inappropriate and the Courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of this right is preventive and number retributive. The approach of the High -Court in this matter seems to us to be erroneous. We accordingly allow the appeal and acquit the appellants.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1201 of 1966. Appeal by special leave from the judgment and order dated June 24, 1965 of the Bombay High Court in Appeal No. 79 of 1963. S. Nariman, K. D. Mehta and 1. N. Shroff, for the appellants. C. Chagla and A. K. Verma, for the respondents. The Judgment of the Court was delivered by Shah, J. Dadiba Hormusji Boatwalla was one of the eight partners of Messrs Meghji Thobhan Company a firm of Muccadams and companyton brokers. Boatwalla died on February 20, 1957. By virtue of cl. 8 of the deed of partnership the business of the firm was companytinued by the surviving partners. Khorshed and Nariman--widow and son respectively of Boatwalla--obtained letters of administration to the estate of Boatwalla and companymenced an action in the High Court of Bombay for an account of the partnership between Boatwalla and the surviving partners and for an order paying to the plaintiffs the amount determined to be due to Boatwalla at the time of his death. The suit was resisted by the surviving partners-who will hereinafter be called the defendants. Tarkunde, J., passed a preliminary decree declaring that qua Boatwalla the partnership stood dissolved on February 20, 1957, but number in respect of the surviving partners, and directed that an account be taken of the partnership upto February 20, 1957. Against that decree the defendants appealed under cl. 15 of the Letters Patent. In appeal the High Court modified the decree. The learned Judges held that the plaintiffs were number entitled to an account in the profits and losses of the firm after the death of Boatwalla, number to exercise an option under s. 37 of the Partnership Act, but that the plaintiffs were entitled only to interest at six per cent. per annum on the amount found due as Boatwallas share in the assets of the partnership including .the goodwill. They further declared that the interest of Boatwalla in the firm ceased on February 20, 1957, and deleted the direction with regard to the dissolution of the firm as between Boatwalla and the defendants. With special leave, this appeal has been filed by the defendants. The defendants companytend that the plaintiffs as legal representatives of Boatwalla were number entitled to a share in the value of the goodwill of the firm because the goodwill of a firm may be taken into account only when there is a dissolution of the firm and in any event because Boatwalla had agreed that his interest in the goodwill shall cease on his death and the business shall be companytinued by the surviving partners. The defendants do number challenge the decree of the High Court awarding to the plaintiffs Boatwallas share in the assets of the firm other than goodwill -icy companytend that in the goodwill of the firm the plaintiffs had to share. By section 14 of the Partnership Act, 1932, it is enacted that Subject to companytract between the partners, the property of the firm includes all property and rights and interest in property originally brought into the stock of the firm or acquired, by purchase or otherwise, by or for the firm or for the purposes and in the companyrse of the business of the firm, and includes also the goodwill of the business. Goodwill of the firm is -expressly declared to be the property of he firm. Counsel for the defendants relied upon s. 55 of the Partnership Act which makes a provision with regard to sale of goodwill after dissolution. It is provided by sub-s. 1 of s. 55 that In settling the accounts of a firm after dissolution, the goodwill shall, subject to companytract between the partners, be included in the assets, and it may be sold either separately or along with other property of the firm. But it is number enacted thereby that goodwill may be taken into account only when there is a general dissolution of the firm, and number when the representatives of a partner claim his share in the firm, which by express stipulation is to companytinue numberwithstanding the death of a partner. Nor do ss. 39, 42 and 46 which were relied upon by companynsel for the defendants support that companytention. Under s. 39 the dissolution of partnership between all the partners of a firm is called the dissolution of the firm and by s. 42 a firm is said to be dissolved subject to the companytract between the partners on the happening of certain companytingencies. Section 46 provides that on the dissolution of a firm every partner or his representative is entitled as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights. These provisions deal with the companycept and companysequences of dissolution of the firm they do number either abrogate the terms of the companytract between the partners relating to the companysequences to ensue in the event of the death of a partner when the firm is number to stand dissolved by such death, number to the right which the partner has in the, assets an property of the firm. The Partnership Act does number operate to extinguish the right in the assets of the firm of a partner who dies when the partnership agreement provides that on death the partnership is to companytinue. In the absence of a term in the deed Of partnership to that effect, it cannot be inferred that a term that the partnership shall companytinue numberwithstanding the, death of a partner will operate to extinguish his proprietary right in the assets of the firm. Clause 8 of the deed of partnership reads as follows This partnership shall number be dissolved or determined by the death of any of the parties hereto but the same shall be companytinued as between the surviving partners on the same terms and companyditions but with such shares as shall then be determined. Mr. Nariman says that goodwill is numberhing but the right to the name, the place of business and the reputation of the firm, and when all these companyponents of the right by express agreement between the partners devolve upon the surviving partners. it follows that.- the share of the deceased partner in the goodwill of the firm devolves -upon the surviving partners and number upon his legal representatives. The goodwill of a business is however an intangible asset being the whole advantage of the reputation and companynections formed with the customers together with the circumstances which make the companynection durable. It is that companyponent of the total value of the undertaking which is attributable to the ability-of the companycern to earn profits over a companyrse of years because of its reputation, location and other features. An agreement between the partners that the name, the place of business and the reputation -of the firm are to be utilised by the surviving partners will number necessarily warrant an inference -that it was intended that the heirs of the deceased partner -will number be entitled to a s -hare in the goodwill. Our attention was invited to Hunter v. Dowling Smith Nelson 2 and Bachubai and L. A. Watkins v. Shamji Jadowji 3 .The first two cases proceed upon the interpretation Of certain clauses in partnership Agreements It was inferred in those cases from the terms of the agreement that the right in the goodwill of a partner in a firm dying or retiring shall number survive to his legal representatives. Bachubai and L. A. Watkins case arose out of a case in which in the partnership -agreement it was provided that 1 1895 2 Ch. D. 223. 2 96 Law Times Reports. 313. 3 1. L. R. 9 Bom . 536. the firm shall be the agents of a companypany carrying on business as a manufacturer of companyton textiles so long as the firm carries on business in Bombay, or until the firm should resign. The firm were appointed the agents of the Corn any and companytinued to act as agents. One of the, partners died, and a representative of the partner filed a suit,. claiming a certain share in the assets of the firm including the goodwill. It was observed by Sargent, c.J,in rejecting the claim of the plaintiff to a share in the goodwill of the business as an asset of the firm, that-- Assuming which may well be doubted that the term goodwill is applicable to a business of this nature, it is plain that it is attached to the name of the firm which, by the partnership agreement itself is to be used by the surviving partners, or partner for their own benefit. Such an arrangement between the partners must take away all-value from the goodwill even if it be number,-as Mr. Justice Lindley in his Treatise on Par tnership, p. 887, 3rd ed. , companysiders it to be inconsistent. with its being an asset at all The, learned Chief Justice expressed a doubt-presumably relying upon old. English decisions--that the goodwill of a firm may number be an asset at all. These observations do number set out any rule, of interpretation of a deed of partnership. But the question is number settled by statutory enactment. Under the Partnership Act, 1932, it is expressly declared that the goodwill of a business is an asset. - Whether the goodwill has any substantial value may be determined on the facts of each case. We are unable to agree with Mr. Nariman that in interpreting a deed of partnership, business whereof it is stipulated shall be companytinued by the surviving partners after the death of a partner, the Court will number award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the companytrary. The goodwill of a firm is an asset. In interpreting the deed of partnership,- the Court will insist upon some indication that the right to a share in the assets is, by virtue of the agreement that the surviving partners are entitled to carry on the business on-the death of the partner, to be extinguished. In the absence of a provision expressly made-or clearly implied, the numbermal rule.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1552 of 1966. Appeal by-special leave from the judgment and order dated June 8, 1966 of the Mysore High Court in C.R.P. No. 1118 of 1964. C. Chagla and R. Gopalakrishnan, for the appellant. R. Ramamurthi, S. S. Javali and M. Veerappa, for the respondent. The Judgment of the Court was delivered by Vaidailyngam J. this appeal, by special leave, is against the judgment of the Mysore High Court, dated June 8, 1966 in Civil Revision Petition No. 1118 of 1964. The respondent land-lord filed an application, dated July 6, 1962 under s. 21 1 j of the Mysore Rent Control Act, 1961 Mysore Act XXII of 1961 hereinafter called the Act before the Rent Controller for eviction of the tenants the appellants herein on the ground that the premises were reasonably and bonafide required by him for the immediate purpose of demolishing and erecting of a new building. According to the respondent the premises were old and were number suitable for companytinued occupation. The respondent had also stated in his -application that he had obtained the necessary licence for erecting a new building after demolition of the existing building and that he had made all preparations for demolition and erection of new buildings on the site. The appellant-tenant companytested the claim of the landlord on several grounds. He pleaded that the premises were number old and that it was quite suitable for occupation and it does number require any re-construction or remodelling. The allegations that the building was old and required to be reconstructed were number bona fide and had been made by the landlord only as a pretext for evicting the tenant. The tenant further pleaded that the requirement of the landlord was neither reasonable number bona fide. In any event, the tenant claimed that he should be entitled to be paid the value of the improvements that had been effected by him. The Rent Controller, by his order dated January 22, 1964 accepted the claim of the respondent and ordered eviction of the appellant granting the tenant one months time for delivering vacant possession. Though the Consulting Engineer who gave evidence as P.W. 2 on behalf of the respondent had stated that the building was over 60 years old but nevertheless it companyld go companyfor about 15 years more, the Rent Controller actually found that the building was more than 50 years old and that it was an old-fashioned one. He further found that when the landlord desired to pull it down and put up a modern building thereon, it companyld number under the circumstances, be- said that his claim was number bona fide or reasonable and that the intention of the landlord in pulling down the building and erecting a new one to get a better return was certainly understandable. The Rent Controller further found that the landlord had proved that he had sufficient means to companystruct the building and that he had also obtained the necessary sanction from the Municipality companycerned for reconstruction of the building. In view of all these circumstances, the Rent Controller found that the requirement of the landlord was quite reasonable and bona fide. Regarding the claim of the tenant for payment of improvements before eviction is ordered, the Rent Controller found that such a claim, even if established, companyld number stand in the way of the landlord getting possession of the premises. Ultimately the application filed by the landlord was allowed. The findings recorded by the Rent Controller were companyfirmed by the learned District Judge, by his judgment dated October 19, 1964 in A.S. No. 43 of 1964 taken before him by the tenant. The revision filed by the appellant before the High Court was rejected by order dated June 8, 1966. Mr. Chagla, learned companynsel appearing for the appellant, companytended that the interpretation placed by all the Courts on s. 21 j of the Act was erroneous. According to the learned companynsel, unless the landlord was able to establish that the companydition of the building was such that it required immediate demolition and re-construction, numbereviction of the tenant companyld be ordered under s. 21 1 j of the Act. On the findings of the Courts, based upon the evidence of the Engineer, that though the building was old it companyld companytinue to exist for another 15 years, it should have been held that the companyditions mentioned in s. 21 I j were number attracted to justify an order of eviction of the tenant. Mr. Ramamurthi, learned companynsel for the respondent, pointed out that in order to attract s. 21 I j it was number necessary that the landlord should establish that the companydition of the building was such that it required to be demolished immediately. On the other hand, the sub-section made it clear that the requirement companytemplated was that of the landlord and once his requirement had been held by all the Courts to be reasonable and bona fide, the order passed for eviction of the tenant was fully justified. Having due regard to the scheme of the Act, we are satisfied that the interpretation placed upon S. 21 1 j by the High Court is companyrect. Section 21 1 , while placing a general embargo against a landlord from evicting a tenant, recognises, in its. proviso the circumstances under which a landlord companyld seek recovery of possession of a premises. The ground upon which the landlord asked for eviction, in the present case, was based on s. 21 1 j . The material provision is as follows 21. 1 Notwithstanding anything to the companytrary companytained in any other law or companytract numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or other authority in favour of the landlord against the tenant Provided that the companyrt may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely- j that the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished According to Mr. Chagla, the words reasonably and bona fide required, occurring in this clause, must be interpreted to have reference to the companydition of the building, the demolition of which is sought to be made and those words have numberreference to any intention entertained by the landlord. The mere fact that a landlord may bona fide and reasonably entertain an idea of demolishing the building and reconstructing the same with a view to putting the property to a more profitable use after companystruction, will number satisfy the requirements of the said clause. That is, according to the learned companynsel, the companydition of the building must be such that it is immediately necessary to demolish it, in which case alone eviction under cl. j companyld be ordered. We are number inclined to accept this companystruction sought to be placed by the appellant on the clause in question. The proviso to s. 21 1 enumerates the various circumstances under which a landlord may seek to recover possession of the property from his tenant. The requirement companytemplated under clause j of the proviso to sub-s. 1 is that of the landlord and it does number have any reference to the companydition of the building as such. What-is necessary under that clause is that the landlord must satisfy the Court that he reasonably and bona fide requires the premises for the immediate purpose of demolishing it and the demolition is for the purpose of erecting a new building in the place of the old one. No doubt, as to whether the landlords requirement is reason- able and bona fide has to be judged by the surrounding circumstances, which will include his means for reconstruction of the. building, and other steps taken by him in that regard. In companysidering the reasonable and bona fide requirement of the landlord under this clause, the desire of the landlord to put the property to a more profitable use -after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. In our opinion, it is number necessary that the landlord should go further and establish under this clause that the companydition of the building is such that it requires immediate demolition. That the companydition of the property may be such which requires immediate demolition is emphasized in cl. k of the proviso. When such a specific provision has been made in cl. k , the companydition of the building cannot companye into the picture number companyld it have been dealt with again in cl. i . So the requirement under cl. j is that of the landlord and cannot have any reference to the building. This Court, in Neta Ram v. Jiwan Lal 1 in interpreting numberdoubt a slightly differently worded provision in s. 13 3 a iii of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 B.K. 8 of 2006 BK held that one of the circumstances which companyld be taken into account in companysidering the requirements of the landlord with reference to the existing building is the possibility of its being put to a more profitable use after companystruction. In the case before us all the Courts have companycurrently held that the requirement of the landlord is reasonable and bona fide and that he had obtained the necessary sanction from the municipality companycerned and that the landlord had also the means for reconstruction of the building. If the landlord does number companymence demolition of the premises within the period specified in the order of the Court, the tenant is given a right under s. 26 1 to issue a numberice to the landlord -of -his intention to occupy the pre- mises from which he had been evicted and also to apply to the Court for relief if the landlord does number companyply with his request. Again under s. 27, the tenant has got a right to occupy the new building on its companypletion provided he satisfies the requirements companytained in that section. Under s. 2 8 I , the landlord is bound to intimate the tenant from whom he had received a numberice under s. 27 the date on which the erection of the new building will be companypleted from which date the tenant will be entitled to occupy the same. Mr. Chagla has referred us to a decision of the Madras High Court in Mehsin Bhai v. Hate Company 2 . The section which came up for companysideration before the Madras High Court was s. 14 3 of the Madras Buildings Lease and Rent Control Act, 1960 Act XVIII of 1960 which was as follows 1 1962 Supp. 2 S.C.R. 623. 2 1964 2 , M.L.J. 147. 14 1 b that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. That clause is substantially similar to s. 21 1 j of the Act.In the Madras case it is seen that the building from which the tenant was sought to be evicted was in good companydition and there was numberdanger of its failing for another 20 years though the building was old. Under those circumstances when the landlord applied under s. 14 1 h of the Madras Act for eviction on the ground that he wished to demolish the building for the purpose of erecting a new building thereon, the High Court affirmed the decision of the Subordinate Court declining relief to the landlord, Though the learned Judge states that landlords May bona fide require such buildings, particularly old buildings in their own interest for demolition and reconstruction, he holds that it is equally possible that the mere fact that a building is old may be taken advantage of by a landlord to put forth such pretext, his real object being ulterior and number bona fide -,for the purpose of reconstruction. We have numberhesitation in agreeing with the- learned Judges observation that the landlord must prove the reasonableness and bona fide nature of his requirement. But, if the learned Judge intended to Iay down a proposition of law that under s. 14 I b of the- Madras Act, similar to s. 21 1 j of the Act a landlord cannot recover possession of the property for the purpose of re- companystruction so as to put the property to a more profitable use, we are of the view that the decision of the Madras High Court must be companysidered to be erroneous. There is absolutely numberjustification for putting such a narrow interpretation on the clause in question. Mr. Chagla further urged that before his client is evicted his, claim for companypensation should have been companysidered by the Rent Controller. It is enough to say that, as pointed out by the High Court, that claim does number arise for companysideration in these proceedings. We may also state that a further companytention regarding them validity of the numberice to quit issued by the landlord which was taken before the High Court -and held against the appellant, has number been canvassed before us. In the result, the appeal fails and is dismissed with companyts.	Case appeal was rejected by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1065 of 1966. Appeal by special leave from the judgment and order dated September 17, 1965 of the Patna High Court in Misc. Judicial Case No. 217 of 1962. Sarjoo Prasad, R. P. Srivastava, Saranjit Singh Jauhar and K. K. Sinha, for the appellant. Goburdhun, for respondent No. 1. The Judgment of the Court was delivered by Shelat J. This appeal, by special leave, is against the order of the High Court of Patna dismissing a writ petition under Arts. 226 and 227 of the Constitution challenging the award passed by the Labour Court on a reference to it of an industrial dispute under s. 10 1 of the Industrial Disputes Act, 1947. The reference arose from the following facts Prior to April 20, 1959 the Government of Bihar was companyducting through one of its departments, called the Rajya Transport Authority, an undertaking of road transport in the State. The said Authority appointed respondent 3 as a Head Clerk in the office of the Divisional Manager, Rajya Transport, Bhagalpur, as from July 27, 1956 The order appointing him stated that the appointment was purely temporary and was terminable without numberice and without assigning any reasons. By an order dated February 18, 1959, issued by the State Transport Commissioner, Rajya Transport, he was discharged from service with immediate effect. On April 2.0, 1959, the State Government, in exercise of the power companyferred by S. 3 of the Road Transport Corporation Act, 64 of 1950, set up as from May 1, 1959, the appellant companyporation. The numberification issued under s. 3 inter alia stated that The said Corporation shall, with effect from the said date, exercise all the powers and perform all the functions which are at present being exercised and performed by the Rajya Transport, Bihar. In the meantime the question of the termination of services of respondent 3 was espoused by respondent 4 before the Assistant Labour Commissioner. The companyciliation proceedings having failed, the State Government referred the dispute to the Labour Court by an order dated February 24, 1961, The Labour Court found a That respondent 3 was a workman within the definition of that term in the Industrial Disputes Act and the Standing Orders governing the appellant companyporation, and that though appointed a head clerk,, there was numberevidence to show that his, work as such head clerk was managerial or supervisory, b That the order dated February 18, 1959 terminating the services of respondent 3 was number termination of service simpliciter, but was punitive in nature. The Labour Court ,relied on a letter dated January 30, 1960 addressed by the appellant companyporation, to the said companyciliation officer that the services of respondent 3 had been terminated because in the companyrse of certain enquiries the Rajya Transport Department had found that Shri Sheo Prasad Sinha had companymitted various irre- gularities of the various nature in the discharge of his duties. The Labour Court held that the said alleged irregularities amounted to misconduct as defined by the said standing orders, and that therefore, the services of respondent 3 companyld number be terminated on the ground of those irregularities without holding a disciplinary enquiry and giving to, respondent 3 therein an opportunity of being heard. No, such enquiry having admittedly been held, the Labour Court held that the said order-was -not justified as it was number in bona fide exercise of the power to terminate the services of respondent 3. No evidence was led by the appellant companyporation before the Labour Court either to prove the said irregularities or to establish that the said order was justified. The Labour Court companysequently held that the said order being invalid, and therefore, inoperative, respondent 3 would be deemed to have companytinued to be in service. It further held that the appellant companyporation was the successor-in-title of the said Rajya Transport and having taken over the erstwhile employees of the Rajya Transport, respondent 3 was deemed to be companytinuing in service of the appellant companyporation. On these findings, the Labour Court companycluded that the said order of termination was invalid, that respondent 3 was deemed to have companytinued in the service of Rajya Transport and thereafter of the appellant companyporation, and on the basis directed the appellant companyporation to reinstate respondent 3 in its service and pay companypensation for the period from February to September 1959. The appellant companyporation thereupon filed a writ petition in the High Court for quashing the said award. In support of the writ petition three questions. were raised before the High Court 1 That the services of respondent 3 were terminated before the appellant companyporation was set up, and companysequently, the remedy of respondent 3 was against the State Government and number against the companyporation. The Labour Court had, therefore, number jurisdiction to direct the companyporation to reinstate him or to pay companypensation, 2 That respondent 3 was engaged hi clerical work and was, therefore, number a workman as defined by the Act, 3 That the termination of the, services of respondent 3 was in companyformity with the terms of the companytract of service, and there was, therefore, numberquestion of the principles of natural justice being applicable to such termination. The High Court rejected all the three companytentions, refused to quash the order of the Labour Court and dismissed the writ petition holding that the appellant companyporation had failed to establish that there was any error of law apparent on the face of the record. Counsel for the appellant companyporation urged before us a that the respondent was, a temporary employee engaged as a head clerk and was, therefore, number a workman as defined by S. 2 s of the Industrial Disputes Act, b that the order terminating his services was an order of termination simpliciter and the Labour Court was, therefore, number entitled to interfere with or set aside such an order, and c that the order having been passed by the Rajya Transport Authority long before the companyporation came into being, even assuming that the said order was illegal, the remedy of respondent 3 was against the State Government and number against the companyporation. There can be numberdoubt that the Rajya Transport Authority, prior to the seting up of the appellant companyporation, was carrying on the undertaking of transport had standing orders regulating the companyditions of service of its employees. The Rajya Transport, having been Sanctioned by the Government on a temporary basis, as is apparent from standing order 3, its employees fell into two categories, namely, temporary and casual. Standing order 2 d defined an employee to mean any person employed by the Rajya Transport Authority to do any skilled or unskilled, manual or clerical labour on hire or for reward. There can be numberdoubt that respondent 3 was an employee of the Rajya Transport Authority. Standing order 1, however, provides that the said standing, orders were to apply only to workmen of the Rajya Transport other than officers and office staff employed in the administrative offices and sections. The order appointing respondent 3 shows that he was posted at the office of the Divisional Manager at Bhagalpur. Prima facie, respondent 3 was neither an officer number a member of the office ,staff in the administrative offices or sections. The standing orders, therefore, were applicable to him. No evidence was led by the companyporation that respondent 3, as a head clerk, was companycerned with or doing managerial or supervisory duties. The definition of a workman in s. 2 s of the Industrial Dispute Act being a companyprehensive one, respondent- 3 must be held to be a workman within the meaning of s. 2 s , whose companyditions of service were ,governed by the said standing orders. Standing order 17 deals with the power of termination of employment of the Rajya TransportAuthority. That standing order provides that the Authority Port has under the terms of employment the right to terminate the services of an employee with 15 days numberice or payment of 15 4 days wages in lieu of such numberice subject to the provisions of the Industrial Disputes Amendment Act, 1953. It further provides that the employment of such employees as are found guilty of misconduct may be terminated in accordance with the provisions of the relevant standing orders. The relevant standing order is ,standing order 18 which lays down certain acts or omissions is amounting to misconduct. Cls. j and 1 , thereof, lay down that habitual or gross neglect of work or habitual or gross negligence or neglect of duty resulting in loss to the Rajya Transport would be misconduct. But the standing orders do number provide any procedure for dealing with an employee guilty of such misconduct. It is well established that if the Rajya Transport Authority were to terminate the services of an employee on-the ground of any misconduct enumerated in standing order 18, it companyld do so only in companyformity with the principles of natural justice. The Authority in such a case would have, therefore, to furnish to the companycerned employee charges alleged against him and would have to afford to him an opportunity to be heard. The letter of the General Manager of the appellant companyporation dated January 30, 1960 earlier referred to make it clear that the reason for terminating the services of respondent 3 was, that he had been found to have companymitted irregularities of a serious nature in the discharge of his duties. That being so, the termination of services of respondent 3 was on account of the aforesaid irregularities in the discharge of his duties and prima facie was by way of punishment and number termination simpliciter. As is well established, even though the order of termination may be companyched in terms of an Order Of termination simpliciter, a Labour Court to which an in- dustrial dispute is referred to for adjudication is entitled to go behind the apparent language of the order in question and companysider whether the order is termination simpliciter or is imposed by way of punishment. The Labour Court, with which also the High Court agreed, came to the companyclusion that the order was number one of termination of services simpliciter, but was by way of penalty imposed upon respondent 3 for the aforesaid irregularities. There is numberhing to show that the said companyclusion was either unreasonable or -perverse, and companysequently, the High Court would number be entitled to interfere with such a finding in a writ for certiorari The High Court was, therefore, right in refusing to interfere with. the finding of the Labour Court in exercise of its prerogative jurisdiction. It is quite clear from the record that the cause of respondent 3 was taken over and espoused by the respondent union before the companyciliation officer. The dispute, therefore, was an industrial dispute referable under s. 10 1 of the Industrial Disputes Act by the Government of Bihar and the reference was a companypetent one. The next question is whether the appellant companyporation was the successor-in-title of the said Rajya Transport Authority, and therefore, the obligations and liabilities of the said Authority devolved on the appellant companyporation. The companytention was that it was number such a successor-in-title and that once the Rajya Transport Authority ceased to carry on the said undertaking, the relationship of master and servant between that Authority and respondent 3 ceased, and therefore, whatever remedy respondent 3 had would be against that Authority and number against the appellant companyporation. It was also companytended that under the terms of the numberification by which the appellant companyporation was set up the companyporation took over only the powers and functions of the said Authority and number its obligations and liabilities. Consequently, the order of reinstatement and companypensation was companytrary to law, The appellant companyporation, as aforesaid, was set up by means of the Notification dated April 20, 1959 issued under s, 3 of the Road Transport Corporations Act, 1950. Under cl. 2 of that numberification the appellant companyporation was empowered to exercise all the powers and perform all the functions which were till then exercised and performed by the Rajya Transport Authority. It is manifest that the powers and, functions of the Rajya Transport Authority were to carry on and companyduct the transport undertaking. For that purpose its principal function would be the administration and management of that undertaking which would necessitate the employment of an adequate staff of employees, Employment of such a staff and regulating their companyditions of service. including disciplinary action, would clearly be one of the powers or functions of the, Rajya Transport Authority, which power or function was also to be exercised and performed by the appellant companyporation under the said numberification. Furthermore, in para 5 of the writ petition filed by the appellant companyporation in the High Court, the companyporation in clear terms averred that it had taken over as from May 1, 1959 such of the employees of the Rajya Transport Authority into, its service who were on the rolls of the said Authority on the date it came into existence. As rightly observed by the High Court, on a proper companystruction of the said averment, if the termination of the services of respondent 3 was invalid, it never became operative and respondent 3, therefore, would be deemed to be companytinuing in the service of the Rajya Transport Authority on May 1, 1959, and therefore, on its rolls. In that view, the appellant companyporation must be deemed to have taken over the services of respondent 3. The -argument, however, was that the true meaning of the said averment was that only those of the, employees. of the Rajya Transport Authority who were actually on its rolls were taken over and number those who were deemed to be on its rolls. It is difficult to understand the distinction sought to be made between those whose names were actually on the rolls and those whose names, though number physically on the rolls, were deemed in law to be on the rolls. If respondent 3 companytinued in law to be in the service, it makes little difference whether his name actually figured in the rolls or number. The expression on the rolls must mean those who were on May 1, 1959 in the service of the Rajya Transport Authority. By reason of the order discharging him from service being illegal, respondent 3 was and must be regarded to be in the service of the said Authority, and therefore, he would be one of those whose services were taken over by the appellant companyporation. Apart, therefore, from the question of the appellant companyporation being the successor-in-title of the said Authority, respondent 3, in the absence of any valid termination of his services, companytinued and still companytinues to be in the service of the appellant companyporation since May 1, 1959, and therefore, the companyporation was bound to pay his wages including all the emoluments to which be was entitled as from May 1, 1959. For the period from February to April the Rajya Transport Authority was liable to pay his wages and other emoluments, if any, to, which he was entitled. The companyporation, as successor-in-title of the said Autho- rity, became liable to -pay the said wages for the said period and number from February to September 1959 as directed by the Labour Court. The proper order, therefore. would, be that respondent 3 is deemed to be in the service of the appellant companyporation from May 1, 1959, and therefore, the companyporation is liable to pay his wages and emoluments as from May 1, 1959. As the successor-in-title of the said Authority, it became also liable to pay his wages and emoluments for the, months of February to April 1959. Except for this modification of the Order passed by the Labour Court the award stands.	Case appeal was rejected by the Supreme Court
CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 225 to 232 of 1966. Appeals from the judgment and order dated April 1, 1966 of the Allahabad High companyrt in criminal Revision Nos. 895, 894, 876, 877, 897, 899 and 898 of 1964. R. Gokhale, K. K. Jain, Bishamber Lal and H. K. Puri,. for the appellant in all the appeals . The respondent did number appear. The Judgment of the Court was delivered by Shelat, J. All those appeals, founded on a certificate granted by the High Court of Allahabad, raise a companymon question as to jurisdiction. The appeals arise from companyplaints filed by the respondent in the Court of First Class Magistrate at Meerut under S. 207 of the Companies Act, 1956 on an allegation of failure on the part of the appellant, the director-in-charge of M s Iron Traders Private Ltd., to pay to him dividends on shares held by him, although the dividends were declared by the companypany for the respective years. The question being companymon, all these appeals are disposed of by a companymon judgment. The appellant companytended that the Magistrate at Meerut had numberjurisdiction to try the companyplaints, and that the Magistrate at Delhi, where the companypanys registered office is situate, who would have the jurisdiction. The Magistrate rejected the companytention and held that as the dividend had to be paid at the registered address of the respondent, which was at Meerut, it was the Meerut Court which had the jurisdiction. The Sessions Judge, on appeal, upheld the order of the Magistrate and in revision the High Court, rejecting the appellants companytention, companyfirmed the view taken by the Magistrate and upheld by the Sessions Judge The High Court in taking the aforesaid view observed The object behind the statute is to ensure prompt payment of dividend to a shareholder. That payment may be, made to him directly or it may be made by sending a cheque or warrant to- his registered address. If a shareholder companyplains that he has number received payment he is entitled to proceed against the companypany and its Directors by filing a companyplaint at the place where he resides because the law demands that payment should have been made to him there. The High Courts reasoning was clearly based on the premise that payment of dividend has to be made at the place where the shareholder resides, and therefore, it is the Magistrate within whose jurisdiction the shareholders registered address is situate who has the jurisdiction. The companytention in these appeals is that ,such a view is number in accord with sec. 207. The question is of some importance, for, if the view taken by the High Court is companyrect, it would mean that directors of companypanies would be liable to be prosecuted at hundreds of places where the registered -addresses of their shareholders are on allegations that dividends are number paid to them. Section 205 deals with dividends and the manner and time of payment thereof. Sub-sec. I provides that numberdividend shall be declared or paid by a companypany for any financial year except out of the companypanys profits for that year arrived at in the manner therein set out. Sub-sec. 3 provides that numberdividend shall be payable except in cash. Sub-sec. 5 b , however, empowers payment of dividend by cheque or dividend warrant sent through the post directed to the registered address of the shareholder entitled to the payment of the dividend or in the case of joint shareholders to the registered address of that one of them who is first named in the register of members or to such person or to such address as the shareholder or the joint shareholders may in writing direct. Sec. 206 provides that numberdividend shall be paid by a companypany in respect of any share therein except to the registered holder of such share or to his order or to his bankers, or where a share warrant has been issued to the bearer of such warrant or to his bankers. Sec. 207 lays down the penalty for failure to distribute dividends declared by the companypany and provides that where a dividend has been declared by a companypany but has number been paid or a cheque or a warrant in respect thereof has number been posted within 42 days from the date of declaration to any shareholder entitled to the payment of the dividend, every director of the companypany, its managing agent or secretaries and treasurers shall, if he is knowingly a party to the default, be punishable with simple imprisonment for a term which may extend to 7 days and shall also be liable to fine. But the section further provides that numberoffence shall be deemed to have been companymitted within the meaning of the foregoing provision in the cases therein set out. A dividend once declared is a debt payable by the companypany to its registered shareholders. It is clear from s. 205 that although under sub-s. 3 numberdividend shall be payable except in cash, sub-s. 5 authorises a companypany to pay the dividend by a cheque or a warrant. Therefore, dividend can be said to have been paid either when it is paid in cash or when a cheque or a warrant is sent through the post directed to the registered address of the shareholder entitled to payment thereof. Indeed, sec. 207 itself lays down that the offence thereunder is companymitted when dividend is either number paid or a cheque or a warrant in respect thereof has number been posted within the time prescribed therefore. Once, therefore, a dividend warrant is posted at the registered address of the shareholder, dividend is deemed to have been paid. The section casts an obligation on the companypany to pay the dividend, which is declared, to the shareholder entitled thereto ,within 42 days from its declaration. The offence under the section takes place when there is failure to pay or a cheque or a warrant therefore is number posted to the registered address of the shareholder. It will be numbericed that the section makes the failure to post within the prescribed period and number the number-receipt of the warrant by the shareholder an offence. Therefore, the obligation to pay within the prescribed period is satisfied once the dividend is paid or a cheque or a warrant therefor is posted at the registered address of the shareholder. Prima facie, both the obligation to post the dividend warrant and the failure to satisfy that obligation would occur at the place where the obligation is to be performed and that would be the registered office of the companypany and number the address at which the warrant is to be posted. But the question is since the dividend, when declared, becomes a debt payable by the companypany to the shareholder and the companypany becomes a debtor, does the companymon law rule that the debtor must seek out the creditor apply? There are two companysiderations which must number be lost sight of before that rule is applied. The first is that s. 207 does number make the number-receipt of the dividend warrant by the shareholder within 42 days an offence. The offence companysists in the failure to post the dividend warrant within the prescribed period. The provisions of s. 205 empower payment of dividend by a cheque or a warrant and treat the posting of a cheque or a warrant as payment. Therefore, payment in cash or the posting of a cheque or a warrant are equivalent and the obligation to pay is discharged when either of them is done. The second companysideration is that the power to pay dividend by posting a cheque or a warrant provided in sec. 205 5 is- incorporated in the Articles of Association of the companypany by Art. 132. That article reads Unless otherwise directed by the companypany in General Meeting any dividend may be paid by cheque or farrant sent through the post to the registered add- ress of the member entitled or in the case of joint holders to the registered address of that one whose name stands first on the register in respect of the joint holding and every cheque so sent shall be made payable to the order of the person to whom it is sent. Section 36 of the Act, which is in the same terms as sec. 20 of the English Companies Act, 1948, provides that subject to the provisions of the Act the Memorandum and Articles of Association, when registered, bind the companypany and the members thereof to the same extent as if they respectively have been signed by the companypany and by each member, and companytained companyenants on its and his part to observe all the provisions of the Memorandum and of the Articles. It is well established that the Articles of Association companystitute a companytract between a companypany and its members in respect,of their ordinary rights as members. see Hickman v. Kent or Romney Marsh Sheep Breeders Association 1 and Beattie v. Beattie . If under a companytract, a promise prescribes the manner in which the promise is to be performed, the promisor can perform the promise in the manner so prescribed. see s. 50 of the Contract Act . Thus, if A desires B, who owes him Rs. 100/- to send him a numbere for that amount by post, the debt, is discharged as, soon as B puts into the post a letter companytaining the numbere duly addressed to A. see illustration d to s. 50 of the Contract Act. In this companynection the decision in Thairlwall v. The Great Northern Railway Co. shows how the problem is dealt with by the English Courts. The plaintiff there, who held certain stocks of the defendant companypany, filed an action to recover dividend payable on those stocks. The defence was that the dividend was paid having been sent by post to the registered address of the plaintiff. The question was looked at from the point of view whether there was any agreement by or obligation on the plaintiff to accept the dividend warrant as payment. If there was any such agreement, the principle laid down in Norman v. Ricketts would apply, namely, that a debtor or a creditor can agree to make and accept payment of the debt in some form other than cash and that when the creditor asks his debtor to send the amount by post, then if the debtor sends a cheque for the amount by post the risk of loss in transit falls on the creditor and the posting is equivalent to payment. Further the stock certificates had upon the back of them a clause that dividend would be payable by warrant which would be sent by post to the proprietors registered address, or to any person duly authorised to give a receipt for the same. Sec. 9 of the Act of 1890, under which the defendant-company was incorporated, also provided that the 1 1915 1 C.h. 881. 3 1910 2, K.B. 509. 2 1938 Ch. 708. 4 3 Times L. R. 182. terms and companyditions on which the stock was issued shall be stated on the certificate thereof. In the six monthly report of accounts issued by the directors to the stock- holders there was a statement that the profits of the companypany had enabled the directors to declare a dividend and there, was at the back of that report a numberice that the dividend warrants would be payable on a certain date and would be sent by post to the stockholders on the previous day. Under s. 90 of the Companies Act, 1845 it was within the power of the directors to fix the date at which and the mode in which dividends should be paid, subject of-course to the companytrol of a general meeting. The stockholders of the companypany at their general meeting had declared the amount of dividend as proposed by the directors but had passed numberresolution as to how payment was to be made. It was held that though numbersuch resolution was passed by the stockholders, they-had numberice as to how the directors proposed to pay the dividends and as numberalteration was made in those proposals, the stockholders were held to have decided among themselves by a proper resolution that the dividend should be paid on a certain day and in the manner proposed by the directors. Such a companyduct was equivalent to a request, and therefore, the stockholders became entitled to payment in that way and in that way alone. Consequently, when the dividend warrant had been sent by post the dividend was paid and the companypanys obligation to pay stood discharged. It follows, therefore, that once a mode of payment of dividend is agreed to, namely, by posting a cheque or a warrant, the place where such posting is to, be done is the place of performance and also the place of payment, as such performance in the manner agreed to is equivalent to payment and results in the discharge of the obligation. It is clear from s. 205 5 that the companypany companyld pay dividend either in cash or by posting a cheque or a warrant at the registered address of the respondent. Art. 132 of the Articles of Association also authorises the companypany to pay dividend either in cash or by posting a cheque or a warrant the shareholder at his registered address. The effect of Art. 132 is that when a dividend warrant is posted at the registered address of the shareholder that would be,equivalent to payment. Once a warrant is so posted the companypany is deemed to have paid and discharged its obligation. As aforesaid, the Articles of Association companystitute an agreement between the companypany and the shareholders, and the latter are entitled to the payment of dividend in the manner laid down in the Articles and in that manner alone. Art. 132 thus number only authorises the companypany to make the payment in the manner laid down therein but amounts to a request by the shareholders to be paid in the manner so laid down. When, therefore, L 10 SupCI NP 70-6 the companypany posts the dividend warrant at the registered address of a shareholder, that being done at the shareholders request, the post office becomes the agent of the shareholder, and the loss of a dividend warrant during transit thereafter is the risk of the shareholder. In Indore Malwa United Mills Ltd. v. Commissioner of Income- tax this Court, on a question arising whether on the facts there payment was made in taxable territory, held that if by an agreement, express or implied, between the creditor and the debtor, or by a request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor by post, the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. That being the position, the place where a dividend warrant would be posted, the post office being the agent of the shareholder, is the place where the obligation to pay the debt is discharged-in the present case at Delhi where the companypany has its registered office. It follows that the offence under sec. 207 of the Act would also occur at the place where the failure to discharge that obligation arises, namely, the failure to post the dividend warrant within 42 days. The venue of the offence, therefore, would be Delhi and number Meerut, and the companyrt companypetent to try the offence would be that companyrt within whose jurisdiction the offence takes place, i.e., Delhi. This should be so both in law and companymon sense, for, if held otherwise, the directors of companypanies can be prosecuted at hundreds of places on an allegation by shareholders that they have number received the warrant. That cannot be the intention of the legislature when it enacted see. 207 and made failure to pay or post a dividend warrant within 42 days from the declaration of the dividend an offence. This view is also in accord with the principle laid down by Maule J. in Regina v. James Milner 2 that the felony of number surrendering at a district companyrt to a flat in bankruptcy, under Stat. 5 and 6 Vict. c. 122, S. 32 is companymitted at the place where the district companyrt is situate and an indictment for the offence cannot be sustained in a different companynty from that in which the person was a trader or in which he companymitted an act of bankruptcy. On the same principle the High Court of Calcutta has also held in Gunanand Dhone v. Lala Santi Prokash Nanley 3 that it is the companyrt within the local limits of whose jurisdiction the accused is liable to render accounts and fails to do so by reason of having companymitted a breach of trust alleged against him that has the jurisdiction. 1 1966 59 I.T.R. 738. 2 175 E.R. 128. 3 29 C.W.N. 432. The offence under s. 207 is the failure to pay dividend or to post a cheque or a warrant for the dividend amount. Since the obligation to post the warrant arose at the registered office of the companypany, failure to discharge that obligation also arose at the registered office of the companypany. Therefore, the alleged offence must be held to have taken place at the place where the companypanys registered office is situate and number where the dividend warrant, when posted, would be received. In that view, the High Court was in error in holding that the Magistrate at Meerut had the jurisdiction to try the said companyplaints. The, appeals must accordingly be allowed and the High Courts orders set aside.	Case appeal was accepted by the Supreme Court
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2210 of 1966. Appeal by special leave from the judgment and order dated January 20, 1966 of the Assam and Nagaland High Court in Civil Rule No. 184 of 1964. Naunit Lal, for the appellants. N. Mukherjee, for respondent No. 1. The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, is directed against the judgment, dated January 20, 1966 of the High Court of Assam and Nagaland, in Civil Rule No. 184 of 1964 by which the High Court quashed the inquiry proceedings companyducted by the 4th respondent therein and the order, dated December 3, 1958 passed by the 3rd respondent dismissing the first respondent hereinafter shortly referred to as the respondent from service and the orders of the appellate authorities companyfirming the same. The respondent joined the Assam Police Service as a companystable in 1933 and was promoted to the post of Assistant Sub-Inspector of Police in 1936. He was then promoted as Sub-Inspector of Police in 1944. He was made permanent as Sub-Inspector of .police in 1952. In 1955, when the respondent was the Officer incharge of the Sorbhog Police Station, certain allegations appear to have been made against him in companysequence of which a companyfidential enquiry was companyducted by the Superintendent of Police, Anti- Corruption Branch, who submitted a report to the Government on December 21, 1957. In view of the companyplaints received against him, the respondent had already been placed under suspension with effect from July 24, 1957. The Sub-Divisional Police Officer, Barpeta, having been authorised under s. 7 of the Police Act, 1861 framed charges against the respondent on March 22, 1958. It is number really necessary to enumerate the various items of charges, but they can be grouped under three broad heads. Under charge number 1, the respondent was alleged number to have taken companynisance of the items of companynizable offences reported to him and enumerated under that charge and, as such, he had neglected to perform his duty as a police-officer in charge of a Police Station. The second charge related to his having accumulated assets in his name as well as in .the name of his wife, far beyond his known sources of income. Items of assets purchased by the respondent were again given in detail. The third charge related to the respondent having companycealed the items, enumerated therein, and given false statements regarding his assets in the declaration of assets submitted to the authorities on July 22, 1957. The respondent submitted his explanation companytravening the allegations made against him. The enquiry was companyducted by the Sub-Divisional Police Officer, Barpeta shortly referred to as the Enquiry Officer and,. as many as 14 witnesses were examined on the side of the prosecution. The respondent cross-examined those witnesses and he also examined four witnesses on his side. The Enquiry Officer, by his report dated September 11, 1958 found the respondent guilty of the various charges, excepting regarding one item under the first charge. He declined to place any reliance on the evidence adduced by the respondent and rejected the explanation furnished by him. Ultimately, the Enquiry Officer, after finding the respondent guilty, submitted his report to the Superintendent of Police, Kamrup. The Superintendent of Police, after referring to the charges framed against the respondent, the nature of the evidence adduced before the Enquiry Officer as well as the finding recorded by the said Officer, issued a memo, dated October 18, 1958 asking the respondent to submit his explanation. A companyy of the report of the Enquiry L 11 SupCI/70-7 Officer had already been given to the respondent. Still the Superintendent of Police also sent a companyy along with his memo. On receipt of this memo, the respondent requested the Super- intendent of Police, by his letter dated October 29, 1958 for being furnished with companyies of the depositions of the prosecution and defence witnesses recorded by the Enquiry Officer to enable him to submit his explanation. But this request was rejected by the Superintendent of Police stating that there was numberrule for giving companyies of statements. The respondent submitted a fairly long explanation, dated November 21, 1958. He disputed the companyrectness of the findings recorded against him by the Enquiry Officer and, ultimately stated that he was innocent and was number guilty of any offence. He prayed that if in case he was found guilty, he should number be awarded the extreme punishment of dismissal from service. But he ,added a request to the effect that he should be allowed to examine witnesses and submit documents and he should be exonerated by the Superintendent of Police after a perusal and companysideration of the same. On receipt of the explanation, the Superintendent of Police, by his order dated December 3, 1958 rejected the explanation of the respondent, accepted the findings of the Enquiry Officer and holding that the charges had been proved beyond all reasonable doubt, dismissed the respondent from service with immediate effect. In the said order, the Superintendent of Police had referred to the charges framed against the respondent, the explanation furnished by him as well as the evidence recorded during the enquiry and the findings recorded by the Officer and the explanation sent by the respondent to the show cause numberice and ultimately held that the charges had all been proved established and that the findings recorded by the Enquiry Officer were companyrect. With regard to the request made by the respondent in his explanation dated November 21, 1958 the disciplinary authority stated that the respondent was afforded a full and fair opportunity to adduce all evidence that he desired to be placed before the Enquiry Officer and that opportunity had also been fully utilised by the respondent. Therefore there was numberfurther necessity for giving the respondent an opportunity to furnish documentary or oral evidence. Regarding the punishment to be awarded, the Superintendent of Police stated that the charges proved against the respondent, who was a member of the Police force, were very serious and hence numberleniency companyld be shown. The respondent filed an appeal. before the Deputy Inspector- General of Police, Range, Assam, who, by his order dated May 11, 1960 dismissed the same. The respondent thereupon filed a revision before the Inspector General of Police, Assam, which, again, was rejected on June 30, 1961. A further revision, filed before the State Government was also dismissed on January 21, 1964. On August 17, 1964 the respondent filed the writ petition in question, challenging the disciplinary proceedings initiated against him and the orders of dismissal passed on the basis of the enquiry companyducted by the Enquiry Officer. He had taken several grounds of attack as against the disciplinary proceedings. He alleged that numberreasonable opportunity was afforded to him during the enquiry proceedings. During the enquiry, the Enquiry Officer was in frequent companysultation and companytact with the Deputy Superintendent of Police of the Anti Corruption Branch, regarding the charges which were being tried by him. In particular, he referred to the record made by the Enquiry Officer in his proceedings that on July 14 and 15, 1958 he companysulted the Deputy Superintendent of Police, Anti Corruption Branch about the proceedings and went through his records relating to the charges. He averred that the nature of the companysolation and the materials companylected by the Enquiry Officer from the Deputy Superintendent, Anti Corruption Branch, were number made known to him and those materials had been taken into account in recording the findings against him. He also alleged that companyies of the report of the Anti Corruption Department, on the basis of which disciplinary proceedings had been initiated, had number been furnished to him number were the companyies of the evidence recorded during the enquiry given to him, though a specific request was made in that behalf. On all these grounds, he sought to have all the orders quashed on the ground that there had been a gross violation of the principles of natural justice. He took a further ground of attack that he had been appointed by the Inspector General of Police and the order of dismissal by a subordinate authority, viz., the Superintendent of Police, was illegal and void. The allegations made by the respondent in the writ petition were companytroverted by the appellants. They averred that the respondent was number entitled to a companyy of the report of the Anti Corruption Branch, which was only in the nature of a preliminary investigation into the companyplaints received against the respondent to enable the disciplinary authority to companysider whether disciplinary action against the respondent should be initiated or number. It was further stated that the respondent was given a full and fair opportunity to participate in the enquiry and the witnesses were all examined in his presence and, apart from cross- examining the prosecution witnesses, he had also adduced defence evidence on his behalf. The State further averred that the mere circumstance that the Enquiry Officer companysulted the Deputy Superintendent of Police, Anti Corruption Branch, did number vitiate the enquiry proceedings as numberinformation or material gathered therein had been used by the Enquiry Officer when he recorded findings against the respondent. According to the State, the findings had been recorded on the basis of the evidence adduced during the actual enquiry. It was also pointed out that the disciplinary authority, viz., the Superintendent of Police, after receipt of the report of the Enquiry Officer, had himself gone into the various items of evidence and, after a due companysideration of the explanation submitted by the respondent, had agreed with the findings recorded by the Enquiry Officer and, after further companysideration of the explanation submitted by the respondent to the show cause numberice, ultimately passed the order of dismissal. The appellate authority, the. Deputy Inspector General of Police had also companysidered the matter in great detail and had upheld the order of the Superintendent of Police. The State further averred that the appointing authority of persons like the respondent, was the Superintendent of Police and number the Inspector General of Police, and, as such, the order of dismissal passed by the former was perfectly legal. On these grounds the State maintained that the enquiry proceedings were valid and legal and did number suffer from any infirmity. Though, as pointed out above, several grounds of attack against the disciplinary proceedings initiated against the respondent were taken in the writ petition, it is seen from the judgment of the High Court under appeal that the order of dismissal was ultimately assailed only on two grounds The request of the respondent, made on October 29, 1958 after receipt of the second show cause numberice dated October 18, 1958 issued by the Superintendent of Police, for supply of companyies of the statements of the witnesses recorded at the enquiry, was arbitrarily rejected on the ground that there was numberrule under which companyies companyld be given and hence the respondent did number have any reasonable opportunity to show cause against the action proposed against him. 2 The Enquiry Officer, during the companyrse of the enquiry was keeping himself in regular companytact with the Anti Corruption Branch and had utilised the material so gathered by him, behind the back of the respondent, against the respondent in the enquiry proceedings. The respondents request for being furnished with a companyy of the report of the Anti Corruption Branch had also been refused and therefore there had been a violation of the principles of natural justice in the companyduct of the enquiry. So far as the first ground of objection is companycerned, the High Court did number accept the same as it was satisfied that the witnesses were all examined in the enquiry in the presence of the respondent and that he had a full and fair opportunity of cross- examining the prosecution witnesses and also of examining witnesses on his behalf. Though the request of the respondent, made on October 29, 1958 for being furnished with companyies of the evidence recorded during the enquiry was rejected, the High Court was of the view that as the respondent was fully aware of the nature of the evidence adduced in his presence during the enquiry, his grievance that he had numberreasonable opportunity to show cause to the numberice issued by the Superintendent of Police was unfounded. So far as the second ground of objection was companycerned, the High Court was impressed by the fact that the Enquiry proceedings showed that on July 14, 1958 and July 15, 1958 the Enquiry Officer companysulted the Deputy Superintendent of Police of the Anti Corruption Branch about the proceedings and went through his records relating to those charges. Based upon those entries found in the record of the enquiry proceedings, the High Court came to the companyclusion that it was abundantly clear that the Enquiry Officer had discussion with the Anti Corruption Branch, the report of which had number been furnished to the respondent. The High Court was further of the view that the Enquiry Officer had taken into companysideration the materials gathered from the records of the Anti Corruption Branch. It was the further view of the High Court that inasmuch as a companyy of the report of the Anti Corruption Branch as well as the materials that were gathered by the Enquiry Officer during his companysultation with that Branch had number been furnished to the respondent, the enquiry held under such circumstances was in clear violation of the principles of natural justice and hence the order dismissing the respondent from service was void. In this view the High Court set aside the order of dismissal and allowed the writ petition, Mr. Naunit Lal, learned companynsel for the appellant State, raised two companytentions 1 The report of the Enquiry Officer, dated September 11, 1958 clearly shows that the findings against the respondent have been recorded exclusively on the basis of the evidence adduced before him and there is numberhing to show that the Enquiry Proceedings have been influenced by the companysultations that the Enquiry Officer had with the Deputy Superintendent of Police, Anti Corruption Branch, on July 14-15, 1958. 2 In any event, the disciplinary authority, viz., the Superintendent of Police, before accepting the findings recorded by the Enquiry Officer, has himself companysidered the entire evidence bearing upon the charges and the explanations offered by the respondent and it is after such a companysideration that he has agreed with the findings of the Enquiry Officer regarding the guilt of the respondent. The appellate authority, the Deputy Inspector General of Police, has also made a similar approach when disposing of the appeal filed by the respondent and therefore there has been numberviolation of the principles of natural justice. Mr. D. N. Mukherjee, learned companynsel for the respondent, has urged that the High Courts view that the enquiry proceed- ings is vitiated inasmuch as the Enquiry Officer has acted upon the information companylected from the Anti Corruption Branch is perfectly justified, especially in view of the record made by the Enquiry Officer himself. Counsel pointed out that the examination of witnesses companymenced on June 23, 1958 and companycluded only on August 30, 1958. It was during this period when the. enquiry was actually going on that the Enquiry Officer, on July 14 and 15, 1958 companysulted the Anti Corruption Branch about the matters companynected with the enquiry proceedings and had gone through the records available with that Branch relating to the charges levelled against the respondent and which were being tried by the Enquiry Officer. Counsel further urged that the respondent was number furnished with a companyy of the report of the Anti Corruption Branch number was he furnished with the information and materials that must have been gathered by the Enquiry Officer in his companysultation with the Anti Corruption Branch and from their records which he inspected on July 14 and 15, 1958. All these circumstances would clearly show that there had been a violation of the principles of natural justice in the companyduct of the enquiry. When once the enquiry proceedings were so vitiated,, the order of dismissal based upon the findings recorded at such an enquiry, has been rightly held by the High Court to be illegal and void. We are of opinion that in the particular circumstances of this case, which will be indicated presently, the High Court has number made a proper approach when it came to the companyclusion that there had been a violation of the principles of natural justice in the companyduct of the enquiry, on the second ground of objection raised by the respondent. The principle, in this regard, has been laid down by this Court in State of Mysore v. S. S. Makapur 1 For a companyrect appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi-judicial functions are number companyrts and that therefore they are number bound to follow the procedure prescribed for trial of actions in Courts number are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure, which govern proceedings in Court. The only obligation which the law casts on them is that they should number 1 1963 2 S.C.R. 943, 947. act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are number open to attack on the ground that the enquiry was number companyducted in accordance with the procedure followed in companyrts. It has been further laid down by this Court in The Collector of Central Excise and Land Customs v. Sanawarmal Purohit 1 that A quasi-judicial authority would be acting companytrary to the rules of natural justice if it acts upon information companylected by it which has number been disclosed to the party companycerned and in respect of which full opportunity of meeting the inferences which arise out of it has number been given. The above two extracts, it will be numbered, emphasize that rules of natural justice can be companysidered to have been violated only if the authority companycerned acts upon information companylected by it and the said information has number been disclosed to the party against whom the material has been used. In paragraph 10 of his writ petition the respondent had alleged that the Enquiry Officer had, during the companyrse of the enquiry, maintained regular companyrespondence and companytact with the Deputy Superintendent of Police, Anti Corruption Branch, Gauhati. In para 12 he had further alleged that the Enquiry Officer started recording statements of witnesses on and from July 23, 1958 and after recording the statements of thirteen witnesses, came to Gauhati on July 14, 1958 and had companysultation with the Deputy Superintendent, Anti Corruption Branch, about the proceedings against the respondent and also went through the record of the Anti Corruption Branch on July 15, 1958. The request of the respondent for being furnished with a companyy of the report of the Anti Corruption Branch was number companyplied with. He further alleged that the enquiry proceedings show that the enquiry officer had taken into companysideration, against the respondent, the report of the Anti Corruption Branch. In the companynter-affidavit on behalf of the State, filed in the writ petition, it was companytended in para 10 that the report of the Anti Corruption Branch being a companyfidential document and number having been used as an Exhibit in the disciplinary proceedings, the respondent was number entitled to a companyy of the same. It was further averred in para 11 that the findings of the Enquiry Officer, Civil Appeals Nos. 1362-1363/1967 decided on 16-2-1968. Barpeta, recorded against the respondent were based on the evidence recorded during the enquiry and number on any companysultation with the Anti Corruption Branch officers. It was further averred in Para 13 that as the report of the Anti Corruption Branch was number exhibited in the disciplinary proceedings, there was numberquestion of the Enquiry Officer taking the said report into companysideration and, as a matter of fact also the report was number taken into companysideration by the Enquiry Officer and the findings against the respondent had been recorded on the basis of the evidence recorded by the Enquiry Officer and numberpart of it is based on the report of the Anti Corruption Branch. From the above averments it will be numbered that the respon- dent numberdoubt made a grievance of the companysultation stated to have taken place during the midst of the enquiry between the Enquiry Officer and the Anti Corruption Branch. But his specific averment was that the findings against him recorded in the enquiry were based upon the report of the Anti Corruption Branch the companyy of which was number furnished to him. The State, on the other hand, did number companytrovert the fact that the Enquiry Officer did have companysultation with the Anti Corruption Branch on the dates mentioned in the record of proceedings. But, according to the State, numberpart of any information companytained in that report had been taken into account in the enquiry proceedings and that on the other hand the report of the Enquiry Officer was exclusively based on the evidence adduced during the enquiry. A perusal of the report of the Enquiry Officer, in the pro- ceedings before us, shows that there is absolutely numberreference to any data or material, if any, companylected by him when he companysulted the Deputy Superintendent of Police, Anti Corruption Branch on July 14 and 15, 1958. But, we have to state that it is highly improper for an Enquiry Officer during the companyduct of an enquiry to attempt to companylect any materials from outside sources and number make that information, so companylected, available to the delinquent officer and further make use of. the same in the enquiry proceedings. There may also be cases where a very clever and astute enquiry officer may companylect outside information behind the back of the delinquent officer and, without any apparent reference to the information so companylected, may have been influenced in the companyclusion recorded by him against the delinquent officer companycerned., If it is established that the material behind the back of the delinquent officer has been companylected during the enquiry and such material has been relied on by the enquiry officer, without its having been disclosed to the delinquent officer, it can be stated that the enquiry proceedings are vitiated. It was, under such circumstances, that this Court, in Executive Committee of P. State Warehousing Corporation v. Chandra Kiran Tyagi 1 accepted the view of the High Court that the enquiry proceedings were vitiated by the enquiry officer companylecting information from outside sources and utilising the same in his findings recorded against the delinquent officer without disclosing that information to the accused officer. It was again, under similar circumstances that this Court in Sanawarmal Purohits Case 2 upheld the order of the High Court holding the enquiry proceedings to be companytrary to the principles of natural justice when the enquiry officer had companylected information from third parties and acted upon the information so companylected, without disclosing the same to the accused. If the disciplinary authority himself had been also the enquiry officer and, during the companyrse of the enquiry he had companylected materials behind the back of the accused and used such materials without disclosing the same to the officer companycerned, the position will be still worse and the mere fact that such an order passed by the disciplinary authority had even been companyfirmed by an appel- late authority without anything more, will number alter the position in favour of the department. But, in the case before us, it is numberdoubt true that the enquiry officer has made a numbere that he companysulted the Deputy Superintendent of Police, Anti Corruption Branch on July 14 and 15, 1958 and perused the records relating to the charges. But the enquiry report does number show that materials, if any, companylected by the Enquiry Officer on those two days, have been utilised against the respondent. We do number find any warrant for the High Courts view that there is numberdoubt that the S.D.P.O. took into companysideration the materials found by the Anti- Corruption Branch. . . . On the other hand, a perusal of the report shows that each and every item of charge had been discussed with reference to the evidence bearing on the same and findings recorded on the basis of such evidence. Therefore, it cannot be stated that the Enquiry Officer in this case has taken into account materials if any that he may have companylected from the Anti Corruption Branch. Nor is there anything to show that, in the discussion companytained in his report, the Enquiry Officer was in any way influenced by the companysultation that he had with the Anti Corruption Branch. If so, it cannot be held that the enquiry proceedings are violative of the principles of natural justice. The fact that a companyy of the report of the Superintendent of Police, Anti Corruption Branch, dated December 21, 1957 was C. A. No. 559 of 1967, decided on 8-9-1969. Civil Appeals Nos. 1362-1363/67 decided on 16-2-1968. number furnished to the respondent is, in our opinion,, of numberconsequence in relation to the actual enquiry companyducted against the respondent. That report was necessitated in view of the companyplaints received against the respondent and the enquiry made by the Anti Corruption Branch was only for the purpose of enabling the Government to companysider whether disciplinary proceedings should be initiated against the respondent. On receipt of the report, the Government felt that disciplinary proceedings will have to be initiated against the respondent and that is how the enquiry proceedings were companymenced. The validity of the enquiry will have to be decided only by the manner in which it has been companyducted. So far as that is companycerned, it is clear from the record that the respondent had a full opportunity of participating in the enquiry and adducing evidence on behalf of himself and of cross-examining the witnesses for the prosecution and the entire evidence was recorded in his presence. The number-furnishing of the companyy of the report of the Superintendent of Police, Anti Corruption Branch, does number vitiate the enquiry proceedings. Over and above these circumstances, it is also to be seen that the enquiry officer was number the disciplinary authority companypetent to impose the punishment against the respondent. The companypetent authority is the Superintendent of Police. The show cause numberice, issued on October 18, 1958 as well as the order of dismissal passed by the Superintendent of Police, dated December 3, 1958 clearly show that the said officer has independently gone into the evidence on record in respect of the charges for which the respondent was tried and has, after taking into account the explanations furnished by him, independently companye to the companyclusion that the respondent is guilty. Similarly, the Deputy Inspector General of Police, Range Assam, before whom the respondent filed an appeal has also very elaborately and in companysiderable detail discussed the entire evidence on record and has agreed with the companyclusions regarding the guilt of the respondent. We have already held that there is numberviolation of the rules of natural justice in the enquiry proceedings. Even assuming that there was any defect in the said enquiry proceedings, inasmuch as the punishing authority and the appellate authority, the Superintendent of Police and the Deputy Inspector-General of Police, respectively, have independently companysidered the matter and found the respondent guilty on the evidence on record, it must be held that in the circumstances of this case there has been numberviolation of the principles of natural justice when the order of dismissal was passed. We may state that the respondent, when he sent his explanation on November 21, 1958 to the show cause numberice issued by the Superintendent of Police on October 18, 1958 did number make any grievance regarding the companysultation by the Enquiry Officer with the Anti Corruption Branch on July 14 and 15, 1958. For the first time the respondent took this ground of objection to the enquiry proceedings only when he filed the appeal before the Deputy Inspector General of Police and the latter has quite rightly rejected this objection holding that any companysultation that the Enquiry Officer had with the Anti Corruption Branch has number affected the case in any way since the findings had been recorded against the respondent entirely on the evidence adduced during the enquiry. The High Court has number companysidered the various aspects, referred to above. Both the companytentions of the learned companynsel for the appellant, in the circumstances, will have to be accepted and, in companysequence, it must be held that the view of the High Court that the order of dismissal is illegal and void is erroneous. Mr. Mukherjee, learned companynsel for the respondent, raised the companytention that the materials on record disclose that the respondent was appointed permanent Sub-Inspector by the Inspector-General of Police whereas the order of dismissal has been passed by a subordinate authority, the Superintendent of Police and therefore the order of dismissal is illegal and void. Normally, this companytention should number be entertained, because it is stated by the High Court that apart from the two points companysidered by it, numberother grounds of objection were raised by the respondent against the order of dismissal. But, if really the records support this companytention of Mr. Mukherjee, that will make the order of dismissal illegal and so we permitted the companynsel to raise this companytention. But, after a reference to the material on record, we are satisfied that this companytention is devoid of merit. The respondent, numberdoubt, averred in his writ petition that he, was appointed to the substanive post of Sub-Inspector of Police by order of the Inspector-General of Police, Assam, and therefore the order of dismissal passed by a subordinate authority, viz., the Superintendent of Police, is illegal and ultra vires. In the companynter affidavit filed before the High Court, the State maintained that the Superintendent of Police was the appointing authority of a Sub-Inspector of Police and it placed reliance upon rule 66, as companyrected by the Correction Slip No. 150, dated June 1, 1938 of the Assam Police Manual, Part 111. The State further categorically stated that the Superintendent of Police is the appointing and punishing authority of the Sub-Inspector of Police and the respondent has been properly and validly dismissed by the companypetent authority. Rule 66, referred to above, clearly supports the. companytention of the State in this regard. Annexure X to the companynter-affidavit of the State in the High Court is the order of the Inspector-General of Police, Assam,, dated December 16, 1952. That refers to the selection for companyfirmation as Sub-Inspectors of. Police of the persons mentioned therein. The respondent is serial number 5 in the said order. Note number 2 to this order specifically directs the Superintendents of Police to send to the Inspector- General of Police, Assam, companyies of companyfirmation orders issued by them in respect of the officers. In accordance with the orders of the, Inspector-General of Police dated December 16, 1952 the Superintendent of Police passed an order D.O. No. 3777 dated December 31, 1952 that among other officers, the respondent, who was officiating as Sub- Inspector, has been selected for companyfirmation as Sub- Inspector of Police Unarmed Branch with effect from September 1, 1951 and that he has been companyfirmed as Sub- Inspector of Police Unarmed Branch from the same date and absorbed against an existing substantive vacancy in the district. These orders clearly show that the respondent was appointed permanent Sub-Inspector of Police number by the Inspector-General of Police but by the Superintendent of Police. Obviously because of these records, such a companytention, as is number taken on behalf of the respondent, was number raised before the High Court. The appeal is accordingly allowed and the judgment of the High Court set aside.	Case appeal was accepted by the Supreme Court
ORIGINAL JURISDICTION Writ Petitions Nos. 468, 469 489, and 490 of 1969. Petitions Under Art. 32 of the Constitution of India for enforcement of fundamental rights. V. Gupte, D. Sudhakara Rao and B. Parthasarathy, for the petitioners in W. P. No. 468 of 1969 . ParthasarathY, for the petitioners in W. P. Nos. 469, 489 and 490 of 1969 . Niren De- Attorney-General, B. D. Sharma and S. P. Nayar, for respondent NO. 1 in all the appeals . Ram Reddy and G. S. Rama Rao, for respondent No. 2 in all the petitions . The Judgment of the Court was delivered by Shah, J. The petitioners who are traders in foodgrains edible oils, and other articles of food, challenge the validity of S. 7 read with s. 2 v and 2 ix , and S. 19, S. 2 i and s. 1 0 read with S. 13 of the Prevention of Food Adult Iteration Act 37 of 1954 and the rules framed thereunder. They claim that by the Act and the rules the fundamental rights guaranteed under Arts. 14, 19 1 g and 20 3 of the Constitution are infringed. The Parliament, with a view to companytrol adulteration and mis- branding of articles of food, enacted the Prevention of Food Adulteration Act, 1954. The petitioners companycede that they do number claim a fundamental right to carry on business in adulterated or misbranded foodstuffs they claim that ,they are honest traders, and do number resort to any malpractice, still in carrying on their business in foodstuffs they are, by the Act, subjected to restrictions which are number reasonable. They companytend that the Act presumes every trader charged with an offence under S. 1 6 1 a to be guilty and imposes upon him the burden of proving that he is number guilty of the offence charged, by establishing facts which are number within his knowledge, or which without great expense wholly incommensurate with his means and the facility available to him, he cannot establish. They also claim that by the Act they are denied the equal protection of the laws and the guarantee of Art. 20 3 of the Constitution is infringed. The relevant provisions of the Act may first be numbericed. Section 7 of the Act provides No person shall himself or by any person on his behalf manufacture for sale,or store, sell or distribute- any adulterated food any misbranded food any article of food for the sale of which a licence is prescribed, except in accordance with the companyditions of the licence any article of food for the sale of which is for the time being prohibited by the Food Health Authority in the interest of public health or V any article of food in companytravention of any other provision of this Act or of any rule made thereunder. By s.10 a food inspector appointed under s. 9 1 of the Act is authorised to take samples of any articles of food from any person selling such article, or from any person who is in the companyrse of companyveying, delivering or preparing to deliver such article to a purchaser or companysignee, or from a companysignee after delivery of any such article to him, and to send such sample for analysis to, the public analyst, and with the previous approval of the health officer having jurisdiction in the local area companycerned, or with the pre- vious approval of the Food Health Authority to prohibit the sale of any article of food in the interest of public health. Sub-section 5 of s. 13 provides Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section 3 , or any document purporting to be a certificate signed by the Director of the Central Food Labo- ratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and companyclusive evidence of the facts stated therein. Section 16 1 prescribes the penalties cls. a f which are relevant provide If any person- a whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food- which is adulterated or misbranded or the sale of which is prohibited by the Food Health authority in the interest of public health other than an article of food referred to in subclause i , in companytravention of any of the provisions of this Act or of any rule made thereunder or f whether by himself or by any other person on his behalf gives to the vendor a false warranty in writing in respect of any article of food sold by him, he shall in addition to the penalty to which he may be liable under the provisions of section 6, be punish-able with imprisonment for a term which shall number be less than L11Sup.Cl/70 12 six months but which may extend to six years, and with fine which shall number be less than one thousand rupees Provided that- Section 19 deals with the defences which may, and which may number, be allowed in prosecutions under the Act. It provides It shall be numberdefence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was number prejudiced by the sale. A vendor shall number be deemed to have companymitted an offence pertaining to the sale of any adulterated or misbranded article of food if he proves - a that he purchased the article of food- in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer in any other case, from any manufacturer, distributor or dealer with a written warranty in the prescribed form and b that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. Any person by whom a warranty as is referred to in section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence. Food is defined in S. 2 v as meaning any article used as food or drink for human companysumption other than drugs and water and includes- a any article which ordinarily enters into, or is used in the companyposition or preparation of human food, and b any flavouring matter or companydiments. Clauses i and ix of S. 2 define the expressions adulterated and misbranded. According to companynsel for the petitioners the Act imposes un- reasonable restrictions, because it creates absolute liability by S. 16 1 a and imposes severe penalties for storage and sale or distribution of articles of food found to be adulterated or misbranded, or prohibited by law it prescribes standards which are technical, and absolute, and for the slightest departure therefrom the trader is liable to be prosecuted and punished. Counsel submitted that it is impossible for an ordinary trader without the assistance of an expert technician to ascertain whether the articles of food purchased by him companyply with the prescribed standards, and that in prescribing the standards of quality the imperceptible changes which take place in foodstuffs by passage of time, are number taken into account. In our judgment, the restrictions imposed upon the companyduct of business by traders in foodstuffs cannot be deemed unreasonable. By s. 16 1 provision is made for imposing penalties, among other acts, for storage, sale or distribution of articles of food which are adulterated or misbranded, or sale of which is prohibited by the Food Health authority in the interest of the public health, or is in companytravention of the Act or the rules. The Act, it is true, does number make some blame-worthy mental companydition companystituted by knowledge or intention relating to the nature of the article stored, sold or distributed, an ingredient of the offence. Unless the case falls within sub-s. 2 of s. 19, if sale, storage or distribution is established, intention to sell articles or knowledge that the articles are adulterated, misbranded, or prohibited need number be proved by the prosecutor to bring home the charge. Sub- section 1 of s. 19 provides that it is numberdefence in a charge, for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him, or that the purchaser having purchased any article for analysis was number prejudiced by the sale. By that clause a bare plea of ignorance by a trader about the nature, substance or quality of the food sold by him is number a defence in a prosecution for the offence pertaining to the sale of any adulterated food number that the article was, purchased for analysis. But in companysidering whether creation of absolute liability amounts to imposing unreasonable restrictions, the Court has to strike a balance between the individual right and public weal. The Courts will number strike down an Act as imposing unreasonable restrictions merely because it creates an absolute liability for infringement of the law which involves grave danger to public health. The Courts will undoubtedly companysider whether without imposing absolute liability the object of the statute companyld be reasonably secured. For that purpose the Court will companysider the object of ,the Act, apprehended danger to. the public interest, arising out of the activity if number companytrolled and the, possibility of achieving the intended results by less stringent provisions. The nature of the trade in foodstuffs, the channels of supply and the movement of goods from trader to trader and fertile sources of adulteration and misbranding make it extremely difficult in a large majority of cases to establish affirmatively that storage or sale of adulterated or misbranded foodstuff was with a guilty mind. Provisions in the statute book creating absolute liability for sale of adulterated food are fairly companymon. Section 3 1 of the English Foods Drugs Act, 1938, imposes absolute duty on a dealer in foodstuff regardless of negligence Lindley v. George W. Horner Co. Ltd. 1 and Lamb v. Sunderland and District Creamery Ltd. 2 The same provision is repeated in S. 2 of the Food and Drugs Act, 1955. In Halsburys Laws of England, Vol. 10 3rd Edn. at p.273, Art. 508, it is stated - A statutory crime may or may number companytain an express definition of the necessary state of mind. A statute may require a specific intention, malice, knowledge, wilfulness, or recklessness. On the other hand, it may be silent as to any requirement of mens rea, and in such a case in order to determine whether or number mens rea is an essential element of the offence, it is necessary to look at the objects and terms of the statute. In some cases, the companyrts have companycluded that despite the absence of express language the intention of the legislature was that mens rea was a necessary ingredient of the offence. In others, the statute has been interpreted as creating a strict liability irrespective of mens rea. Instances of this strict liability have arisen on the legislation companycern ing food and drugs, liquor licensing, and many other matters. In Mousell Brothers v. London and North Western Rail Co. 3 Atkin, J., observed yet the legislature may prohibit an act or enforce a duty in such words to make the prohibitions or the duty absolute To ascertain whether a particular Act of Parliament has that effect or number, regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed. In Quality Dairies York Ltd. v. Pedley 4 the Court of Appeal held that Regulation-26 1 of the Mill and Dairies Regulation, 1949, requiring a distributor to ensure that every vessel used as a companytainer for milk shall be in a state of thorough cleanliness, imposed an absolute liability. It is true that for the protection of the liberty of the citizen, in the definition of offences, blameworthy mental companydition is ordinarily an ingredient either by express enactment or clear implica- 1 1950 1 All. E.R. 234. 3 1917 2 K.B. 845. 2 1951 All. E.R. 923. 4 1952 1 All. ER. 380. tion but in Acts enacted to deal with a grave social evil, or for. ensuring public welfare, especially in offences against public health, e.g., statutes regulating storage or sale of articles of food and drink, sale of drugs, sale of companytrolled or scare companymodities, it is often found necessary in the larger public interest to provide for imposition of liability without proof of a guilty mind. If from the scheme of the Act it appears that companypliance with the regulatory provisions will be promoted by imposing an absolute liability, and that it cannot otherwise be reasonably ensured, the Court will be justified in holding that the restriction on the right of the trader is in the interest of the general public. Adulteration and misbranding of foodstuffs is a rampant evil and a statute calculated to companytrol that evil is indisputably in the interest of the general public The statute imposing restrictions upon traders will number be deemed unreasonable merely because it makes a departure from the numbermal structure of statutes enunciating offences and prescribing punishments. By sub-s. 2 of S. 19, even in respect of the absolute offence, the Parliament has enacted that on proof of certain facts, criminal liability will be excluded. Thereby a vendor is number deemed to have companymitted an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that the purchased the article of food from a duly licensed manufacturer, distributor or dealer in a case where a licence is prescribed for the sale thereof, and in any other case from any manufacturer, distributor of dealer with a written warranty in the prescribed form, provided the article of food while in his possession was properly stored and that he sold it in the same state as the purchased it. The argument of companynsel for the petitioners that the provision that a retail seller who opens a companytainer of a branded article of food loses even the limited protection under s. 19 2 is without substance. Clause b of sub-s. 2 of s. 19 does number provide, number does it imply, that if the companytainer of a branded article is opened, the article of food ceases to be in them same state in which the vendor purchased it. If the article of food is sold in the same companydition in which it was purchased from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will number lose the protection of sub-s. 2 of S. 19 merely because he opened the companytainer. If the vendor has obtained the article from a licensed manufacturer, distributor or dealer or from a manufacturer, distributor or dealer with a warranty, he is protected, provided he has property stored the article and sells it in the same state as he purchased the article, even if it turns out that the article was adulterated or misbranded. The Act does number dispense with proof that the article of food is adulterated, misbranded or that its sale is prohibited it enacts that a vendor selling articles of food adulterated or misbranded cannot plead merely that he was ignorant of the nature, substance or quality of the goods. A statute enacted by the Parliament in the interest of public health which is generally made in similar statutes elsewhere imposing liability for an offence without proof of a guilty mind does number per se impose restrictions on the, freedom to carry on trade which are unreasonable. It is true that stringent penalties are provided under S. 16 1 a . A vendor of adulterated, misbranded or prohibited articles of food is punishable with imprisonment for a term which shall number, in the absence of adequate and special reasons, be less than six months, and which may extend to six years, and with fine which shall number be less than one thousand rupees. But for the protection of the public by ensuring the purity of articles of. food supplied to the people and preventing malpractices by the traders in articles of food, severity of the penalties is number so disproportionate to the gravity of the offence that it may be deemed unreasonable. We are again unable to accept the argument that under the Act even when an article is purchased number as an article of food, but for use otherwise, the vendor will be deemed guilty if the article does number companyform to the prescribed standards, or is as an article of food adulterate or misbranded. Counsel said that companyonut oil is used in the State of Kerala as a companyking medium, and sale of adulterated companyonut oil may in Kerala be an offence under S. 16, but in other parts of the companyntry where companyonut oil is number used as a companyking medium and is used as a companyponent of hair oil or for other purposes, it amounts to imposing an unreasonable restriction to penalise the vendor who sells companyonut oil knowing that the, purchaser is number buying it as a companyking medium. But there are numberarticles which are used as food only in one part, and are number at all used as food in another part of the companyntry. Even companyonut oil is used as a companyking medium by certain sections of the people in parts of India other than Kerala. In any event it is always open to a person selling an article capable of being used as an article of food as well as for other purpose, to inform the purchaser by clear numberice that the, article sold or supplied is number intended to be used as an article of food. What is penalised by s. 16 1 is importation manufacture for sale, or storage, sale, or distribution Of any article of food. If what is imported manufactured or stored, sold or distributed is number an article of food, evidently S.16 can have numberapplication. The various items in the Schedule seting out standards of quality use technical expressions with which an ordinary retail dealer may number be familiar, and also set out percentages of companyponents which the dealer with the means at his companymand cannot verify. But by S. 3, the Central Government has to set up the Central Committee for Food Standards to advise the Central and the State Governments on matters arising out of the administration of the Act. The Committee companysists of experts and representatives of the Central Government and of the State Governments and the Director General of Health Services is its Chairman. Under S. 23 1 b the Central Government makes rules prescribing the standards of quality and the limits of variability permissible in any article of food. The rules are made after companysultation with the Committee for Food Standards. The standards set out in the Appendix to the Rules are prescribed after companysultation with the Committee for Food Standards. It has number been even urged that the standards have been fixed arbitrarily. Apart from a general argument that small retail dealers may number, be in a position to ascertain whether goods purchased by them or in their possession are according to the standards, numberspecific argument was advanced that the standards, are number numbermal, or that the variations in quality during the companyrse of storage are unreasonably restricted. This Court in State of Uttar Pradesh v. Kartar Singh 1 in which in dealing with an argument of invalidity of the rule setting out standards under the Prevention of Food Adulteration Act observed The standards themselves, it would be numbericed, have been prescribed by the Central Government on the advice of a Committee which included in its companyposition persons companysidered experts in the field of food technology and food analysis. In the circumstances, if the rule has to be struck down as imposing unreasonable or discriminatory standards, it companyld number be done merely on any a priori reasoning but only as a result of materials placed before the Court by way of scientific analysis. . . . That where a party seeks to impeach the validity of a rule made by a companypetent authority . . . . . . the burden is on him to plead and prove the infirmity is too well established to need elaboration. If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or-its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce companyent and companyvincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification of the zones and the, prescription of the minimum 1 1964 6 S.C.R. 679. standards to each zone, and where we have a rule framed with the assistance of a Committee companytaining ex. perts such as the one companystituted under s. 3 of the Act, that presumption is strong, if number overwhelming. In the petitions a plea was raised that by the Act and the Rules, the guarantee of Art. 14 was infringed, but numberargument was presented before us independently of the argument relating to infringement of the guarantee under Art. 19 1 g , in support of the companytention that the Act infringed the guarantee of equality before the law or equal protection of the laws. The Act deals with the regulation of a class of traders, and in view of the widespread malpractices, and the practical difficulties of companytrolling those malpractices, stringent provisions have been made by the Act. The classification is founded on an intelligible differentia and the differentia has a rational relation to the object sought to be achieved. The provisions of the Act again do number invest arbitrary authority upon those who are to administer the Act. number can it be said that the standards prescribed are arbitrary. The Act does number infringe the guarantee of Art.20 3 of the, Constitution. By that clause numberperson accused of any offence shall be companypelled to be a witness against himself. But by enacting that a plea by the vendor in a prosecution for an offence pertaining to sale of adulterated or misbranded article of food, that he was ignorant of the nature, substance or quality will number be a defence, the guarantee under Art. 20 3 is number infringed. The vendor when charged with an offence is number thereby companypelled to be a witness against himself. Nor can it be said that by making the report of the Director of Central Food Laboratory companyclusive evidence of the facts stated therein, any such infringement is intended. The provision has been made with a view to secure formal evidence of facts without requiring the Director to remain present, and in the interest of effective administration of the Act, the certificate signed by the Director of the Central Food Laboratory is made final and companyclusive evidence of the facts stated therein. The Director is a highly placed official, an expert in determining the nature, substance and quality of food, and is wholly disinterested in the result of any case companying before the Courts.	Case appeal was rejected by the Supreme Court