MOHAMMAD ISMAIL

NANNEY LAL

March 1, 1969

[M. HIDAYATULLAH, C.J.,

J. C. SHAH,

V. RAMASWAMI,

G. K. MITTER AND A. N. GROVER, JJ.J

U.P. (Temporary) Control of Rent & Eviction Act (U.P. 7 of 1941) s. 7-F-Suit for eviction filed after obtaining permission by ComniissioM; -Permission revoked by State Government-Whether suit incompetent.

The U.P. (Temporary) Control of Rent & Eviction Act, 1947, res- C tricts the rights of landlords to institute suits for eviction of their tenants to cases covered by s. 3(l)(a) to (g) except with the permission of the J?istri.ct Magistrate. The District Magistrate's order granting the permiss10n is expressly made subject to any order by the Commissioner under s. 3 (2) provided the aggreived party applies within 30 days to the Commissioner to revise the order. The Commissioner must ordinarily dispose of the application within six weeks. Section 7-F of the Act confers revisionary powers on the State Government in any case granting or refusing D to grant permission, and under s. 3 ( 4) the Order of the Commissioner under s. 3(3) is to be final subject to the order under s. 7-F. The respondent-landlord obtained permission of the District Magistrate to file a suit fdr eviction of the appellant-tenant under s.. 3 ( 1) of the Act. , The tenant applied to the Commissioner under s. 3(2) and the Commisioner

dismissed the application. The tenant then filed a further revision application fo the State Government under s. 7-F. Before the disposal of the E last revision application, the landlord filed a suit for ejectment in pursuance of the permission given by the Commissioner. Thereafter the State Government set aside the order of the Commissioner and revoked the permission granted to the landlord.

On the question whether the suit filed, after obtaining the permission of the Commissioner became incompetent on the making of an order by the State Government unders. 7-F cancelling the permission to sue given by the Commissioner, this Court,

HELD : The suit validly instituted after obtaining permission as re- .quired by s. 3 did not cease to be maintainable even if the State Government thereafter revoked the permission granted.

Under sub-s. (1) of s. 3 the maintainability of a suit on grounds other than those mentioned in els. (a) to (g) is made expressly subject to an order under sub-s. (3). The Legislature did not provide that the right to file a suit would be subject to or dependent upon an order under s. 7-F G in the same way as an order under s. 3(3). [898 A]

When n landlord files a suit for eviction only with the permission of the District Magistrate, he is conscious of the fact that such permission may be revoked by the Commissioner at the instance of the tenant within tCn weeks of its institution. But so far as the revisional powers of the

State Government are concerned. there is n6 time limit fixed either for application by an aggrieved party o'r for the disposal thereof .. It may b_e H made at anv time and the State Government 1s further authorised by this section (s. 7-F) to act suo 111otu. In such a state of affairs, it cannot be 'held that the landlord must wait indefinitely and find out whether the

G '

permission granted to him will be upheld by the State Government should the tenant make an application for revision of the ordelr of the Commissioner. [898 CJ

Apart from the above c; pnsideration, the words in s. 7-F indicate that the State Government can only exercise its. jurisdiction to revise the order of the Commissioner before the actual jnstitution of the suit.

The language of s. 7-F does not seem to be aimed at invalidating a suit already instituted and can only operate at a stage before the landlord launches his proceedings. There is nothing in sub-s. ( 4) of s. 3 read with s. 7-F to show that the landlord should wait till the powers of the revising authorities have been exhausted. If the Legislature had so intended, it could have used suitable words in sub-s. (!) of s. 3 to indicate that the grant of permission by the District Magistrate would also be subject to an crder under s. 7-F. [898 F]

The Legislature had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. ( 3). lbe Legislature might, if so advised, have provided for a similar result in a case where the_ State Government had revoked the permission to sue granted by the Commissioner. It would make a mockery of the judicial process if it were to be held on the language of the sections as they stood, that irrespective of a decree being passed by the trial coun being upheld in appeal by the High Coun or by this Court, the order of the State Government would nullify all proceedings.

Once the jurisdiction under s. 16 wa• properly exercised the Coun cannot examine the propriety of the order made thereunder. [899 B-D: 900 BJ

Bhcgwan Das v. Paras Nath, [1969) 2 S.C.R. 297, followed.

Shri Bhagwan v. Ram Chand [1965) 3 $.C.R. 218 and Bansi Ram v.

Manrri Lal, I.LR. [1965) 1 Allahabad 545, re'ferred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 263 of 1969.

Appeal by special leave from the judgment and order dated December 13, 1968 of the Allahabad High Court in SecQ.nd Appeal No. 3474 of 1963.

J. P. Goyal, G. N. Wantoo and V. C. Parashar, for the appellant.

K. P. Gupta, for the respondent.

The Judgment of the Court was delivered by Mitter, J, The question in this appeal by special leave is, whether a suit for evictiom of a tenant by a landlord, after obtaining the permission of the Commissioner under sub-s. (3) of s. 3 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 194 7 becomes incompetent, on the making of an order by the State Government under s. 7 -F cancelling the permission to sue given by the Commissioner.

The relevant facts for disposal of this appeal are as follows.

The respondent-landlord obtained permission of the District

Magistrate to file a suit for eviction against the appellant under s. 3(1) of the Act on May 29, 1961. The ten.ant went up to the Commissioner of Agra Divisi~ under s. 3 ( 2) of the Act.

On July 26, 1961 the Commissioner dismissed the revision application.

The tenant then filed a further revision application to the State Government under s. 7-F of the Act.

Before the disposal of the last revision application, the landlord filed a suit for ejectment on J ainuary 18, 1962 in the court of the Munsii, Etah in pursuance of the permission given by the Commissioner. On June 16, 1962 rhe State Government set aside the order of the Commissioner and revoked !he permission granted to the landlord.

The suit was dismissed by the Munsif of Etah on November 17, 1962. The Civil Judge of Etah allowed the appeal of the landlord on September 28, 1963.

Th~ tenant went up in Second Appeal to the High Court. On December 13, 1968 a learned single Judge of the Allahabad High Court dismissed the tenant's appeal following a judgment of this Court in Bhagwan Das v.

Paras Nath(').

Learned counsel for the appellant contended that some aspects of the question had not bee.n raised before and/ or considered by this Court on the prior occasion which might have induced the Court to come to a different conclusion. Having heard counsel at some length, we are convinced that there is no-merit in his submissions.

We respectfully agree with the decision in Bhogwan Das's case(') and are satisfied that counsel has not been able to show that any relevant aspect of the question was not considered on the former occasion.

There was no unanimity of opinion in the Allahabad High Court as regards the effect of run order passed by the State Government contrary to tlie Commissioner's order on the basis of whiGh a suit for eviction was filed in the subordinate courts. So far as the High Court was concerned, the matter was laid at rest by a Full Bench decision in the case of Bansi Ram v. Mantri Lal('). This Court while not concurring with all that was said in Bansi Ram's case(2) agreed with the Full Bench that a suit validly instituted after obtaining permission as required by s. 3 did not cease to be maintainable even if the State Government thereafter revoked the permission granted.

Section 3 ( 1) of the Act restricts the rights of la.oolords to institute suits for eviction of tenants to cases covered by clauses

(a) to (g) of that sub-section except with the permission of the District Magistrate. The words of this sub-section are imperative and show that no such suit can be filed without the permission of the said authority.

Under the Transfer of Property Act the only pre-requisite to the institution of a valid suit .for evictiOill of a monthly tenant is the service of a proper notice to quit. The

(I) [1969] 2 S.C.R. 297.

(2) I.L.R. [1965[ I Allahabad 545.

G ,

landlord is not obliged to make out any ground for such eviction.

Where he seeks to eject a tenant and can make out a case which falls within any of the sub-clauses (a) to (g), he need not approach the Distrkt Magistrate for permission to sue. It follows that the District Magistrate must consider the justification for the institution of a suit in all other cases. His order is expressly made subject to any order under sub-s. ( 3) of the section.

In order that power under the latter sub-section can be exercised, it is necessary {or the aggrieved party to apply to the Commissioner to revise the order of the Magistrate by 111aht1g an application under sub-s. ( 2) of the section within 30 days from the date on which the order is communicated to him.

Sub-s. (3) enjoins upon the Commissioner to hear the application, as far may be, within six weeks from the date of making it and his powers in this regard are not subject to any limitation.

A landlord may file a suit for eviction on getting the permission of the District Magistrate to do so bnt he runs the risk of such permission being revoked by the Commissioner in which case his suit will become infructuous as by the.express words of sub-s. (1) the permission of the District Magistrate is made subject to revision by the Commissioner. The question arises whether the same result will follow if the order of the Commissioner is in its turn upset by the State Government acting under s. 7-F and whether sub-s. (4) of s. 3 should be so construed.

In our opinion, an order under s. 7-F cannot affect a suit filed prior thereto if the landlord has obtained the necessary sanction from the Commissioner.

The relevant portion of the sections are quoted below* for facility of reference.

*(3) Restrictions on eviction.-(1) Subject to any order passed under subsection (3) no suit shall, without the permission of the District Ma&:istrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds :-

(a) to (g)

(2) Whee any application has been made to the District M; gi.strate for permission to sue a tenant for eviction from any accommodation and tbe. District Magistrate grants or refuses to grant the permission, the party aggrieved by his order mf:Y, within 30 days from the date on which the order is communi cated to him, apply to the Corn.missioner to revise the order.

(3) The Commissioner shall hear the application made under ab-section (2), as far as may .be, within six weeks from the. date of mking it, and he may. if he is not satisfied as to the correctness. legality O! propriety of !he order passed by the District Magistrate or as to the regularity of proceed1ngs held before him alter or reverse his order, or make such other order as may be just and proper. ( 4) The order of the Commissioner under sub-section (3) shall, subject to any order passed by the State Government under section 7-F be final.

7-F.-Revision to State Government-The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3 or requiring anv accommodation to be let or not to be let to any person under Section 7 or directing a person to vacate anv accommodation under Section 7-A and maiy make such order as appears to it. necessary for the ends of justice.

Under sub-s. ( l) the maintainability of a suit on grolllll!ds other than those mentioned in els. (a) to (g) is made expressly subject to an order under sub-s. ( 3). It will be noted that the Legislature has conferred various powers on the State Government besides the power to reverse orders under section 3. . For reasQDS of its own the Legislature did not provide that the right to file a suit would be subject to or dependent upon an order under s. 7-F in the same way as an order under section 3 ( 3 ) .

Various reasons were given by this Court in Bhagwan Das's case(') for coming to the conclusion thats. 7-F was not to be construed in the same way as s. 3 ( 3) and we are .in entire agi:eement therewith.

When a landlord filed a suit for eviction only with the permission of the District Magistrate he knows that it would be open to the tenant to ask for revocation of the permission by an applicatiQl'.1 to the Commissioner within 30 days from the communication of the order of the District Magistrate to him.

He is also aware that the Commissioner must, except for unavoidable reasons, hear the application and dispose of it within six weeks thereafter.

At the most, therefore, he has to wait for about ten weeks from the order of the District Magistrate granting permission to find out whether he can safely institute a suit.

But so far as the revisional powers of the State Gover1DJIIlent are concerned, there is no time limit fixed either for application by an aggrieved party or tor the disposal thereof. It may be made at any time and the State Government is further authorised by this section (s. 7-F) to act suo motu.

In such a state of affairs, it would not be right to hold that the landlord must wait indefinitely and ljnd out whether the permission graimed to him will be upheld by the State Government should the tenant make an application for revision of the order of the Commissioner.

Apart from the above consideration, the words of s. 7-F in our opinion, indicate that the State Government cain only exercise its jurisdiction to revise the order of the Commissioner before the actual institution of the suit.. The language of s. 7-F shows that on the facts of the case before it the State Government must consider whether the grant of or refusal to grant permission for the filing of a suit should be upheld or not. The section does not seem to be aimed at invalidating a suit a\ready instituted and can only operate at a stage before the landlord launches his proceeding.

There is nothing in sub-s. ( 4) of s. 3 read with s. 7-F to show that a lancllod should wait till the powers of the revising authorities have been exhausted. If the Legislature had so intended, it could have used words iini sub-s. ( 1) of s. 3 to indicate that the grant of permission by the District Magistrate would also be subject to an order under s. 7-F.

The same result might have been achieved by providing for the stay of a suit in case the State

Government made an order under s. 7-F contrary to that of the

Commisllioner.

Once a suit is validly instituted it must take its course and the decree passed therein must be givC\11 effect to .unless the words of the statute render the decree inexecutable or liable to re-opening in a proper case on grounds mentioned in the statute. It was pointed out by this Court in Bhagwan Das's case(') that the Legislautre had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. (3). The Legislature might, if so advised, have provided for a similar result in a case where the State Government had revoked the permission to sue granted by the Commissioner.

It was also pointed out in Bhagwan Das's case(') that it would make a mockery of the jm:licial process if we were to hold on the language of the sections as they stand at present, that irrespective

of a decree being passed by the trial court being upheld in appeal by the High Court or by this Court, the order of the State Government would nullify all progs.

There is nothing in the judgment of this Court in Shri Bhagwan

v. Ram Chand(') read with secti!lll 16(3) of the Act which would incline us to come to any different conclusion.

On the strength of the decision in that case read iJli the light of s. 16, it

was argued that the order of the State Government being quasijudicial in nature s. 16 (inset) placed the order of the State Government beyond the pale of scrutiny by a court of law.

We cannot see any force in this argumCill't. The permission to sue given by the Commissione~ has no effect on the course of the trial of the issues involved in that suit. That permission is only a prerequisite to a suit as a notice under s. 80 of the Code of Civil Procedure.

The court trying the suit for eviction has to find out whether a proper notice to quit was given aind whether the tenancy was properly determined. It must also examine the grounds on the basis of which the landlord seeks to evict the tenant and decide for itself whether such grounds exist. Neither the District Magistrate nor the Commissioner nor the State Government is oblieed to disclose any reasons which may influence the said authorities in coming to their decision and the court is not called upon to examine whether the conclusion of any of the said authorities was

properly arrived at.

Learned counsel for the appellant would have us hold that

Lil Sup ; Cl/69-8

(2) (1965] 3 S.C.R. 218.

s. 16• ousted the jurisdiction of the Court to consider the propriety of any order of the State Government.

In our view, that is not the effect of that section. The decision in Shri Bhagwan v. Ram Chand (supra) shows that the State Government must offer areasonable opportunity to both the parties while it exercises its jurisdiction under s. 7-F and an order which is J!lade in violation of the principles of natural justice may be quashed.

Once the jurisdiction under s. 16 is properly exercised the court cannot examine the propriety of the order made therell\ll.der.

In the resu!t, the appeal fails and is dismissed with costs. Two is only exercisable at a point of time anterior to the filing of a suit and courts of law can therefore disregard any order under that section which is made after the filing of a suit.

In the result, the appeal fails and is dismissed with costs. Two months time granted from today for vacating subject to payment of rent and an undertaking given that the property would be handed over peacefuliy within that time.

Y.P.

Appeal dismissed.

•Section 16. Orders under the Act not to be questioned in any Court.- No order' made under this Act by the State Government or the District Magis. trate shall be called in question in any court.

MOHAMMAD ISMAIL

NANNEY LAL

March 1, 1969

M. HIDAYATULLAH, C.J.

C. SHAH

V. RAMASWAMI

G. K. MITTER

A. N. GROVER, JJ

s. 7

Eviction Act, 1947

s. 3(l)(a)

s. 3

Section 7

s. 3

s. 3(3)

s. 7

s. 3(2)

s. 7

s. 3

s. 3

s. 7

s. 3(3)

s. 7

s. 7

s. 7

s. 3

s. 7

s. 3

s. 7

s. 16

[1969) 2 S.C.R. 297

Allahabad High Court

J. P. Goyal

G. N. Wantoo

V. C. Parashar

K. P. Gupta

Mitter

s. 3

Control of Rent and Eviction Act

s. 7

s. 3(1)

May 29, 1961

s. 3

July 26, 1961

s. 7

J ainuary 18, 1962

June 16, 1962

Civil Judge of Etah

December 13, 1968

Bhogwan Das

Bansi Ram

s. 3

Section 3

Transfer of Property Act

[1969] 2 S.C.R. 297

s. 7

s. 3

s. 7

section 7

Section 3

Section 7

Section 7

section 3

s. 7

section 3

Bhagwan Das

s. 3

s. 7

s. 7

s. 7

s. 3

s. 7

s. 3

s. 7

s. 7

s. 16

s. 16

s. 80

the Code of Civil Procedure

(1965] 3 S.C.R. 218

s. 16

s. 7

s. 16

Section 16


MALOJIRAO NARASINGllRft.0 SHITOLE

THE STATE OF MADHYA PRADESH

March 7, 1969

[M. HIDAYATULLAH, C.J., V. RAMASWAMI AND G. K. MITTER, JJ.]

Madhya Bharat Abolition of Jagirs Act 28 of 1951, s. 29-Appeal to Board of Revenue-No provision in Act for exclusion of time for obtaining copies or to condone de/ay-S. 30 of Act making Ryotwari Land Revenue and Tenancy Act Samwat 2007 applicable to proceedings under Act-Effect of ss. 34 ond s. 149(2) of Ryotwari Act-Construction of s. 149(2)-App/icability of s. 12 of Indian Limitation Act 1908.

Section 29 of the Madhya Bharat Abolition of Jagirs Act 28 of 1951 provided for appeals against orders of the Jagir Commissioner to the Board of Revenue. The appeal was to be filed within 90 days of the communication of the decision to the party concerned. The Act did not in terms contain any provision for exclusion of time taken in obtaining copies or for <Pndonation of delay in filing the apJ?"al However under s. 30 of the Act the procedure under the Ryotwan Land Revenue and Tenancy Act, Samwat 2007 was made applicable to the proceedings. Section 34 of the said Ryotwari Act provided for extension and computation of the period of limitation and s. 149(2) thereof was in the following terms : "Excpt where it is otherwise ptovided" in the general principles of law of Limitation for the time being in force in the United State regarding extension of the principles of limitation sha11 appJy to claims made under this Act before a Revenue Officer ...

' The appellant was a Sardar and Jagirdar in the erstwhile Gwalior State.

His Jagir was resumed by the State on December 4, 1952 under the Madhya Bharat Abolition of Jagirs Act 1951.

He rec\lived a memorandum from the Jagir Commissioner on February 23, 1958 regarding the compensation payable to him under s. 13 of the Act. On February 24, 1958 he applied to the Jagir Commissioner for a copy of the judgment as the memorandum supplied to him did not show how the compensation had been determined.

The application was returned to the appellant on March 11, 1958 with an endorsement that the copy could be had on payment of fees. The very next day the appellant complied with the demand and a copy 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 but the Board dismissed it as time barred under s. 29 of the Act. The High Court upheld the order df the BMrd.

In appeal to this Court,

HELD : The High Court was not right in upholding the order of the Board of Revenue which ignored the provisions of ss. 34 and 149(2) of the Ryotwari Act and the relevant provisions of the Limitation Act. f907 B-C]

(i) Uder s. 34 of .th7 yotwari .Act the Board must guide itself by the prov1s1ons of the L1m1tation Act in force for extension and computa tion of the period of limitation. It would appear that s. 149(2) was aimd at givig a similar guide line to the Revenue Officer. To give the said mterpretat1on to s. 149(2) it is necessary to read "extension of the principles of limitation" occurring therein as uextension of the period of limitation" for otherwise the section would be devoid of any meaning.

The word 'principles' therein was inserted due to inept or careless drafting and what was meant was 'period' and not 'principles'. However,. even if the statute is read as it stands the principle of the Limitation Act is not only to dismiss a suit, appeal o'r application if filed beyond time but also to extend the time for filing an appeal if the delay is explained.

That principle was clearly capable of extension in the present case. [905 D; 906 El

(ii) The general princ, lples of limitation are those contained in the Limitation Act of 1908 which was in .force at the date when the present appeal was filed before the Board of Revenue. Sections 3, 4, 5 and 29(2) of the Limitation Act 1908 show that unless excluded by the Jagirs Act or Ryotwari Act, s. 12 of the Limitation Act would be applicable to appeals filed before the Board of Revenue under any of those Acts.

[905 E; 906 CJ

(iii) In view of the applicability of ss. 34 and 149(2) of the Ryotwari Act to the case, the time spent in obtaining a copy of the judgment forming the basis or giving the ieasons of the decision should have been excluded in computing the period of 90 days under s. 29 of the Jagirs Act.

The appellant was not guilty of any !aches. If there was any delay in filing the appeal the Board of Revenue should have considered whether in the circumstances of the case the same should have been condoned.

The Board did not act judicially in throwin11 out the appeal. [906 F-907 Bl

Briirajsingh v. The Board of Revenue and Another, Misc. Civil Case No. 22[1962 of the Madhya Pradesh Hiib Court decided on 18-3-63, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 302 of 1966. referred to.

Appeal by special leave from the judgment 3(lld o; der dated E November 13, 1962 of the Madhya Prades_!i. High Court, Gwalior Bench in Misc. Civil Petition 64 of 1961.

B. Sen, P. W. Sahasrabudhe, A. G. Ratnaparkhi and S. V.

Tambwekar, for the appellant. ·

l. N. Shroff, for the respondent.

Ji'

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 Constitution 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 J agir 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 compensation 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 copy of the

MALOJJRAO v. M. P. STATE (Mitter, /.) 90 3

A judgment.

The memorndum received by him gave the total amount of compensation detennined and the deductions to be made therefrom. It did not contain the data forming the basis of the calculations nor did it show how the authority disposed of the appellant's claim to compensation and made its o'\Wl computation.

At the hearing, a copy of the judgment of the Jagir Commissioner 8 . 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 amolJil]t payable to the appellant.

It appears that the application of the appe!lant for a copy of the judgment was returned to him on March 11, 1958 with an endorsement that the same could be had on payment of fees. On the very neii:t day the appellant applied for a copy of the judgment after paying the fees mentiqoed and a copy 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 not 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 note 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 an jagir }ands in the State, as soon as may be, after the commencement of the Act.

The consequences of the resumption of the jagir land are given i, n s. 4.

By the operation of that section the right, title and interest of every jagtrdar and ol every other person claiming through him in his jagir lands including forests, trees etc. whether being worked or oot, were to stand resumed to the State free of all encumbrances and certain other consequences were to follow. Section 5 of the Act however enabled the Jagirdar to continue to remain in possession of lands personally cultivated by him and of certain other items of property mentiqm:d .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 compensation as would be determined in accordance with the principles laid down in Schedule I. Under s. 12 every Jagirdar whose jagir land had been resumed er s. 3 was to file in the prescribed fonn within two months from the date of. resumption, a statement ,<:J. claim for compensation 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 no statement was received by him within the period fixed, it was the duty of the J agir CommissiQrier to determine (a) the amount of compensation 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 ainy, under s. 9; ( d) the amounts payable annua,!ly to the Zamindars of the J agirdar, if any under s. 10 and ( e) the amount payable to the cosharers of a Jagirdar, if any, under s. 11. The section casts a duty on the Jagir Commissioner to cornmlljilicate !tls decision to the Government, the Jagirdar, the maintenance holders, the co-sharers 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 Commissio.ner 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 communication 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 nor the Jagirdar nor any person aggrieved by the decision of the J agir Commissioner under s. 13 can file an appeal to the Board of Revenue to any purpose without a copy of the judgment showing how the decision under s. 13 was arrived at.

In this case, the memorandum of compensation merely showed that a sum exceeding Rs. 1 7 lakhs had been determined as the amount payable to the appellant. 'l'he memorandum did not show how the same was computed or how the claim for compeinsation 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 there.fore arises as to whether the time taken in obtaining a copy of the judgment which forms the basis of the decision in determining the compensation can be excluded from the period of 90 days mentioned in s. 29 of the Jagirs Abolition Act. There is no provision 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 communication of the decision under s. 13. Under s. 30 of the Act

"The Jagir Commissiqner, or any other officer conducting 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 applicable 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 reltion to original or appellate proceed-

A 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 8 computation of the period of !imitation :-

( 1) no appeal to the Board shall be brought after the expiry of ninety days from the date of the decision or the order complained 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 extensiOl)l of the principles of !imitation 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 ·~ force for extension and computation of the period of limitation.

It would appear thats. 149(2) was aimed at giving a similar guide .Jine 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 "extensiO\Il of the period of limitation" for otherwise the section would be devoid of any meaning. The general principles of limitation are those contained 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 c<Jilltained in ss. 4 to 25 (inclusive). every suit instituted, appeal preferred, and application made, after the period of litation prescribed therefor by the First Schedule was to be dismissed although limitation had not been set up as a defence.

Under s. 5 ol. the Limitation Act of 1908 an appeal could be admitted after the period of !imitation prescribed therefor when the appellant satisfied the court that he had sufficient cause for not 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 ai period of !imitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation

prescribed for any suit, appeal or applicatiqn by the special or local Jaw-

( a) the provisions contained 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 not expressly excluded by such special or local Jaw; and

(b) the remaining provisiOlllS of this Act shaU not 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(') that the expressiqn "principles of limitation" in s. 149(2) mentioned above should be construed as extension of the period of !imitation.

For the reasons given above, we are in agreement with the said conclusion of the Madhya Pradesh High Court. In our view, the word 'principle' therein was inserted due to inept or careless drafting aind what was meant was "period" and not '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 applioation 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.

H sections 34 aind 149(2) were applical:ile to the facts of the

ase before the Board of Revenue and we hold to that effect, the time spent in obtaining a copy of the judgment forming the basis or giving the reasons of the decision should have been excluded in computing the period of 90 days under s. 29 of the Jagirs Act. The appellant was , not guilty of any !aches in his appeal to the Board of Revenue.. He applied for a copy of the judgment of the J agir Commissioner 9n the day next after communication 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 consideration before holding the appellant's appeal to be out of time. If the application for the copy of the judgment made on the 24th February was in order, the appeal was in time.

Even if the time taken in obtaining the copy of the judgment be reckoned from the 12th March to 18th March, 1958, the appellaint was out by two days only in filing the appeal to the Board of Revenue. If the 1st of June 1958 which

(I) Misc. Civil Case No. 22{1962 decided on 18-3-63.

happened to be a Sunday be left out of consideration, the appellant was out by one day only.

As appears from the order dated September 28, 19§1 the Board of Revenue refused to entertain the appeal on the ground of limitation without considering the question as to whether the appellant had made out a case for condonation of delay, if any. In our view, the Board of Revenue had not acted judicially in throwing out the appeal.

The High Coun: was therefore not right in upholding the order of the Board of Revenue which ignored the provisiOtllS of ss. 34 and 149(2) of the Ryotwari Act and the relevant provisions of the Limitation Act. A sounder view of the law was taken by another Division Bench of the same High Court in Brijrajsingh's case(') noted above.

For the reasons given the appeal is allowed, the order of the Board of Reveinue is quashed and the matter sent back to the Board for disposal of the appeal according to law and in the light of the observations made by us.

The appellant will have the costs of this appeal.

G.C.

Appeal allowed.

(I) Misc. Civil case No. 22fl962 decided on !8·3-63 ..

THE STATE OF MADHYA PRADESH

March 7, 1969

M. HIDAYATULLAH, C.J.

V. RAMASWAMI

G. K. MITTER, JJ.

Madhya Bharat Abolition of Jagirs Act

s. 29

S. 30

ss. 34

s. 149(2)

s. 149(2)

s. 12

Indian Limitation Act 1908

Section 29

s. 30

Section 34

s. 149(2)

Gwalior

December 4, 1952

s. 13

March 11, 1958

March 18, 1958

June 2, 1958

s. 29

ss. 34 and 149(2)

Limitation Act

s. 34

s. 149(2)

s. 149(2)

Limitation Act

Limitation Act

Sections 3, 4, 5 and 29(2)

Limitation Act 1908

s. 12

Limitation Act

ss. 34 and 149(2)

s. 29

B. Sen

P. W. Sahasrabudhe

A. G. Ratnaparkhi

S. V.

Tambwekar

N. Shroff

Mitter

Madhya Pradesh High Court

Art. 227

s. 13

s. 29

Jagirs Act, 1951

s. 3

s. 4

Section 5

s. 8

s. 3

Schedule I

s. 12

s. 3

s. 12

s. 8

s. 4

s. 9

s. 10

s. 11

s. 29

ss. 4, 10, 11, 13

s. 13

s. 13

s. 29

s. 13

s. 30

Jagir Commissiqner

Section 34

Section 149(2)

s. 34

s. 149(2)

Limitation Act

Section 3

Limitation Act, 1908

ss. 4 to 25

First Schedule

s. 5

Limitation Act

s. 29(2)

Limitation Act

First Schedule

section 3

section 4

sections 9 to 18

section 22

section 12

Limitation Act

s. 149(2)

Limitation Act

sections 34

s. 29

12th March to 18th March, 1958

1st of June 1958

If the 1st of June 1958 which

(I) Misc.

September 28, 19§1

ss. 34 and 149(2)

Limitation Act

Brijrajsingh


SHIV ASHANKAR PRASAD SHAH & ORS.

BAIKUNTII NATH SINGH & ORS.

March 7, 1969

[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] B

Code of Civil Procedure-Re.sJudicata--Objection against execution proceeding, when barred.

Bihar Land Reforms Act, ss. 3, 4 & 6-Mortgaged Estate-Final Decree obtained-Effect of.

After a preliminary decree was obtained by the appellants (mortgagees of an Estate including both Bakasht lands and other lands), the Bihar Land Reforms Act, 1950 came into force.

The appellant filed petition for passing final decree. The Estate mortgaged vested in the State as a result of a notification issued under s. 3(1) of the Act, and later a final decree was passed in the mortgage suit. Thereafter the appellants applied under s. 14 of the Act and got determined the compensation to which they were entitled under the Act. But yet they filed an execution petition to execute the mortage decree against the Bakasht land. The respondents resisted that execution by filing an application under s. 47, Civil Pro cedure Code contending that. the execution was barred under s. 4(d) of the Acjt.

That application was dismissed for default of the respondents.

A second application raising, the same ground was filed by the respondents but this, too, was dismissed for their default. A third application raising the same ground was filed by the respondents and in this, the execution court overruled the objection raised by the respondents on the grounds (i) that the objection was barred by the principles of res judicata and (ii) that the bar of s. 4(d) pleaded was not tenable. This decision was affirmed in appeal, but reversed in second appeal by the High Court.

Dismissing the appeal this Court;

HELD ; ( i) The objection was not barred by the principles of res iudicata. Before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court. Only a decision by a court <lould be res judicata, whether it be statutory under s. 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests. An execution petition having been dismissed for the default of the decreeholder though by the time that petition came to be dismissed. the judgment debtor bad resisted the execution on one or more grounds, docs not bar the further execution of the decree in pu'r suance of fresh execution petitions filed in accordance with law.

Even the dismissal for default of objections raised under s. 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course df the execution. [911 B-HJ

Maharaja Radha Parshad Sinf!h v. Lal Sahab Rai & Ors. L.R. 17 I.A. 150 Pulvarthi Venkata Subba Rao v.

Velluri lagannadha Rao & Ors. [196"4] 2 S.C.R. 310, Lakshmibai Anant Kondkar v. Ravji Bhikaji Kond kar, XXXI B.L.R. 400, Bahir Das Pal cl: Anr. v. Girirh Chandra Pal, A.l.R. 1923 Cal. 287, Bhagwati Prasad Sah v. Radha Kishun Sah & Or~. A.I.R. 1950 Pat. 354, lethmal & Ors. v. Mst. Sakina. A.l.R. 1961 Ra1. 1959 Bishwannth Kundu v. Smt. Subala Dassi, A.l.R. 1962 Cal. 272, referred to.

A Ramnarain v. Basudeo, I.LR. XXV Pat. 595, disapproved.

(ii) Proceedings under s. 4(d) of the Bihar Land Reforms Act, 1950 included execution proceedings and the execution could not be proceeded with. The only remedy open to the appellants was to get compensation under Chapter IV of the Act. [913 G, Hl

Reading ss. 3, 4 and 6 together, it followed that all Estates notified under s. 3 vested in the State free of all encumbrances.

The quondum proprietors and tenure holders of those Estates lost all interests in those Estates.

As proprietors they retained no intere"t 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 settlements of raiyat rights 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, free of all encumbrances. Then followed the deemed settlement bv the State of raiyat's rights on the quondum proprietors.

Therefore in law it would not be correct to say that what vested in the State were only those interests not coming within s. 6. [913 C-E]

Section 4 ( d) provided that "no suit shall lie in any civil court for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recpvery of any such money which may be pending on the date of vesting shall be dropped".

Proceedings in this section undoubtedly included execution proceedin!l!. [913 Fl

RGmnarain v. Basudeo I.LR. XXV Pat. 595, Raj Kishore v.

Ram Pratap, A.1.R. 1967 S.C. 801; [1967] ! S.C.R. 56, Rana Sheo Ambar Singh v. Allahabad Bank Ltd .. Al/a/what!, [1962] 2 S.C.R. 441 and Krishna Prasad &: Ors. v. Gauri Kumari Devi. [1962] Supp. 3 S.C.R. 564, referred to.

Sidh<shwar Prasad Singh v. Rem Saroop Singh, 1963 B.L.J.R. 802, majority view disapproved.

CIVIL. APPELLATE JURISDICTION: Civil Appeal No. 368 of 1966.

Appeal by special leave from the judgment and order dated February 3, 1964 of the Patna High Coun in Appeal from Appellate Order No. 99 of 1963.

Sarjoo Prasad and R. C. Prasad, for the appellants.

K. K. Sinha allld S. K. Bisaria, for the respondents.

The Judgment of the Court was delivered by

Hegde, 1. This appeal against the judgment of the Patiia High Court dated the 3rd F~ruary, 1964 in its Appellate Order No. 99 of 1963 was file.d obtammg special leave from this Court.

It arises from a proceeding under s. 47, Civil Procedure Code: In execution of a mortgage decree, the decree-holders sough~ to proceed against

Bakasht Ja.nds of the judgment debtors. The judgment debtors objected to the same on the ground that the execution was barred under s. 4(d) of the Bihar Land Reforms Act, 1950 (to be hereinafter referred to as the Act).

But that objection was overruled by the executing court on two different grounds namely (1) that the objection in question is barred by the principles of res judicata and (2) the bar of s. 4{d) pleaded is lllOt tenable. The decision of the execution court was affirmed in appeal but reversed in second appeal by the High Court.

The two questions that arise for decision in this appeal are ( 1) whether the objection as regards the executability of the decree pleaded by the judgment debtors is barred by the principles of res judicata and ( 2) whether the mortgage decree has become unexecutable in view of the provisions of the Act.

We shall now briefly set out the material facts of the case.

The mortgages, the appellants ijll this appeal obtained a preliminary decree on June 26, 194 7 on the basis of a mortgage. The property mortgaged was an Estate within the meaning of the Act.

That property included both Bakasht lands as well as other lands.

The Act came into force after the passing of the aforementioned preliminary decree. The decree-holders filed petition for passing a final decree on September 19, 1955.

The Estate mortgaged vested in the State of Bihar on January l, 1956 as a result of a notification issued under s. 3 ( 1) of the Act. A final decree was passed in the mortgage suit on October 1, 1956. Thereafter the mortgagees applied under s. 14 of the Act and got determined the compensation to which they were eintitled under the Act. It is said that they did not proceed any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage decree against the 8akasht lands. The judgment debtors resisted that execution by filing an application under s. 4 7, Civil Procedure Code (Misc. Case No. 94 of 1959) on the ground that the decree cannot be executed in view of the provisions of the Act.

That application was dismissed ior the default of the judgmentdebtors on SepteJ?.1ber 12, 1959. A second application raising the same J?round (Misc. Case No. 110of1959) was filed by the judgment debto~ is barred on the principles of res ; udicata and further on July 23, 1960 •or default of the jud!!lllent debtors.

A third application raising the same ground of objection (Misc. Case No. 91 of 1960) was filed by the judgment debtors on September 12.

1960. That application was dismissed on January 4, 1962 after examining the conkltltions of. the parties.

Therein the execution court came to the conclusion that the objection raised by the judgment de, btors is barred on the principls of res judicata and further that the same has no merits. This decision as mentioned earlier was affirmed by the appellate court but reversed by the High Court.

We shall first take up the conrention that the objection taken

by the judgment debtors is harried by principles of res judicata.

Though at one stage, learned Coll)lseJ for the appellants-decree holders attempted to bring the case within Explanation 5, s. 11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata.

The real question for decision in this case is whether the dismissal of Misc. cases Nos. 94 and 110 of 1959 for default of the judgment debtors can be said to be a final decision of the court after hearing the parties.

Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not O\llly been pleaded but it had been heard and finally decided by the court. . A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause Of action. If it was otherwise there was no need for the legislature to enact rule 9, Order 9, Civil Procedure Code which in specific term say that where a suit is wholly or partly dismissed under rule 8, the plaintiff shal! be precluded from bringing a fresh suit in respect of the samecause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee of the Privy Council in Maharaja Radha Parshad Singh

v. Lal Sahab Roi and Ors.('). Therein the Judicial Committee observed thus:

"None of the questions, either of fact or law raised by the pleadings of the parties, was heard or detrmined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the mea, ning of the Civil Procedure Code It must fall within ~:me or other of the sections of Cbapte~ VII f the <; ode; m the preseQt case it is immaterial to

C?ns:der h1ch, the severest penalty attached to such dISmtssa! 1~ any case being at the plaintiff cannot bring another suit for the same relief."

h From this decision it is clear that the Judicial Cotnm'tt , __ ,, t at before a plea can be held to be b . 1 op"""" plea must have been heard and Elet . a~~ by res 1ud1cata that decision by a court could be . e Y the court. Only a under s 11 cvi1 p d res JU lcata, whether it be statutory • • ' I roce ure Code or 0 1 ti' public policy on which the entire do t .c ns rue ve as a matter of decision can be considered as e . J: nne ests. Before an earlier heard and finally decided r st" 1

1cath .t e same must have been Velluri Jaga11(1adha Rao ;;:ee0 "(,.,,)art 1 Venkata Subba Rao v. , rs. .

The courts in India have ge al! ak execution petition which has been ndes 'f edt n tthhe view that an 1 miss 1or e default of the

(1) L.R. 17 J.A. ISO.

(2) [19641 2 S.C.R. JIO

der, ree-holder though by the time that petition came to be dismissed, the judgment debtor had resisted the executiqn on one or more grounds, does not bar the further execution of the decree in pursuanoe of fresh execution petition filed in accordance with lawsee Lakshmibai Anant Kondkar v.

Ravji Bhikaji Kondkar(').

Even the dismissal for default of objections raised under s. 47, Civil Procedure Code does lllKlt operate as res judicata when the same objections are raised again in the course of the executionsee Bahir Das Pal and Anr. v. Girish Chandra Pa/(2 ); Bhagawati Prasad Sah v. Radha Kishun Sah and Ors.(8 ); Jethma/ and Ors. v.

Mst. Sakina(4); Bishwanath Kundu v. Sm. Suba/a Dassi('). We dq not think that the decision in Ramnarain v. Basudeo(6 } on which the learned Counsel for the appellant placed great deal of reliance is correctly decided.

Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.

The next question is whether the execution is barred under the provisions of. the Act. The contention of the judgment debtors is that it is so barred whereas according to the appellants as the Bakasht lands which form part of the mortgaged property had not vted in the State, the execution can proceed against those lands.

Therefore we have to see whether the entire mortgaed property had vested in the State in pursuance of the notification under s. 3 or ootly the mortgaged property minus the Bakasht lands.

There is no dispute that the property mortgaged was an Estate within the meaning of s. 2(i) and the notification issued under s. 3 covered the entirety of the Estate.

But what was urged on behalf of the appellants is that what had vested in the State was the nqn-bakasht lands as well as the proprietory interest in the Bakasht lands and hence the Bakasht lands do not have the protectiOJ! of s. 4 ( d) ; Consequently it is not necessary for them to exclusively proceed under s. 14.

The consequences of the vesting of an Estate is set out iJli s. 4.

Section 4 (a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely free from all encumbrances.

Among the rights enumerated therei.n undoubtedly includes the right of possession.

In view of s. 4 (a) there is hardly any doubt that the proprietor loses all his rights in the estate in .question.

After settina out the various interests lost by the proprietor that section proeeds to say "such proprietor or tenure holder shall ----· (ll xxxr, B.L.R. <IQO.

(3) A l.R. !950 Pat. 354.

(5) Al.R. 1962 Cal. 272.

(2). A.I.R. 1923 Cal. 287.

(4) A.1 .1961 Raj. 59.

(6) U •. R. XXV pat. 595.

cease to have any interests in such estate br tenure, other than the interests expressly saved by or under the provisions of this Act"· In order to find out the implication of the clause extracted above we have to go to s. 6 which provides that on and from the date of vesting all lands used for agricuJture or horticultural purposes which were in khas possession of ain intermediary on the date ol. vesting (including certain classes of land specified in that section) shall subject to the provisions of ss. 7 A and B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat uinder the State having occupancy rights in respect of such !ands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.

Reading ss. 3, 4 and 6 together, it follows that all Estates notified 111n<ler s. 3 vest in the State free of all encumbrances. The quondum proprietors and tenure-holders of those Estates lose all interests in those Estates. As proprietors they retain no interest 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 act the vesting of the Estates and the deemed settlement of raiyats rights 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 encumbrllplces.

Then followed the deemed settlement by the State of raiyat's rights on the quondum proprietors.

Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within s. 6.

Section 4 ( d) provides that "no suit shall lie in any Civil Court

fo~ the recovery of any moner, due from such proprietor (propnetor whose estate has vested m the State) or tQn\lre holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure d all swts and pings for the recovery of any such money which may be pendmg on the date of vesting

.hall be drop~"· Procings in this section undoubtedly

1Jllclude execution pr<;>ceedmgs.

This is not a case where only a pan of the moi:igaged prope~ has vested in the State and as such the te laid down by this Co~ in Raj Kishore v. Ram Pratap (1) is not attracted. As mentioned earlier the entire Estate mortgaged had vested though some interest in respect of a portion of the mortgaged property had been settled by the State on the mortgagors.

Under the circumstances the only remedy open to the decreeholders is that provided in Chap. IV of the Act i.e. a claim under

(I) (1967] 2 s.c.R. S6; A.I.R.. 1967 s.c. 801.

s. 14 be.fore the Claims Officer for "determining the amount of debt legally and justly payable to each creditor in respect of his claim".

The procedure to be followed in such a proceedii!lg is prescribed in ss. 15 to 18. Provisions relating to the assessment and payment of compensation payable to the quondum proprietors and tenure-holders are found in Chap. V of the Act (ss. 19 to 31.) Section 24(5) provides that "in the case where the interest of a proprietor or tenure-holder is subject to a mortgage or charge, the compensation shall be first payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure-holder concerned ... " That subsection further prescribes the maximum amount that can be paid to such a creditor.

In view of what has been stated above it follows that under the circumstances of this case it is not OMIL to the appellants to proceed with the execution.

Their only remedy is to get compensation under the Act.

Our conclusion receives strong support from some of the decisions of this court. In Rana Shea Ambar Singh v. Allahabad Bank Ltd., Allahabad('), a question identical to the QOO before us, but arising under the U.P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court. One of the questions that arose for--Decision in that case was whether the Bhurnidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded agai, tlst in execution of a mortgage decree against the Estate that had vested in the State. This Court held that it was not liable to be proceeded against.

Therein it was ruled that the intention of the U.P. Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkasht lnid and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein 'and on a new tenure aind confer upon the intermediary a new and special right of Bhumidari, whlch he never had before by s. 18 of the Act. The provisions in that Act relating to vesting and settlement of Bhumidari rights are in a!l essential particulars similar"to those in the Act relating to vesting and settlement of Bakasht lands.

This Court further ruled in that casi: that the mortgagee could only enforce his rights against the mortgor in the manner as provided ins. 6{h) .of the U.P. Act read withs. 73 of the Transfer of Property Act and follow the compensation money under the Act.

In Krishna Prasad and Ors. v. Gauri Kumari Devi(2 ) the question that arose for decision by the Court was whether a mortgage decree-holder could proceed against the properties of the mortga-

--ol[1.962J 2, s.c.R. 441.

(2) (1962] Supp. 3 S.C.R. 564.

...

gor other than those mortgaged in enforcement of the personal 'ovenant when the property mortgaged had vested in the State under the provisions of the Act.

That question was answered ip the negative.

In the course of the judgment Gajendragadkar, J. (as he then was) who spoke for the Court observed that there is no doubt "that the scheme of the Act postulates that where the provisions of the Act apply, claims of the creditors have to be submitted before the Claim Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy ,1utside the Act by institutiing suit or any other proceeding in the court of ordinary civil jurisdiction." Proceeding further he observed:

"It is in the light of this scheme of the Act that we must revert to section 4 (b) and determine what its true scope and effect are. . Mr. Jha contends that in construing the words of Section 4 ( d) it would be necessary to bear in mi.nd the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure-holders in land and of the mortgagees and lessees of such interests. It was not the object of the Act, says Mr. Jha, to extinguish debts due by the proprietors or tenure-holders and so, it would be reasonable to confine the operation of s. 4 ( d) only to the claims made against the estates which have vested in the State and no others. In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act. It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified.

But as we have already seen, the provisioms contained in section 16 in regard to the scaling down of the debts due by the proprietors and tcnureholders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away frQIII them by the notifications issued under section 3. Therefore in construing s. 4(d), it would not be right to assum~ that the interests of the debtors affected by the provisiOillS of the Act do not fall within the protection of the Act" and again at page 578 :

"Having regard to the said scheme it is difficult to confine the application of s. 4(d) oniy to execution proceedings in which the decree-holder seeks to proceed against the estate of the debtor. In fact, an executiQn proceeding to recover the decretal amount from the. estate which has already vested in the State, would be mcompetent because the said estate no longer belong to the judgment-debtor." l Sup Ci-69-9

Summarising the effect of the aforementioned decisions thts A is what this Court observed in Raj Kishore's case(' )-a case aris ing under \)le Act :

"From the principles laid down by this Court in the above two decisi<>ins, it follows that where the whole of the property mortgaged is an est'llte, there can be no doubt that the procedure prescpbed by Chapter IV has to be followed, in order that the amount due to the ere ditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act."

For the reasons mentioned earlier we are of the opinion that the decision of the majority of the judges in the Full BtW:h decision in Sidheshwar Prasad Singh v. Ram Saroop Singh(') is not correct.

The true effect of the decisions of this Court in Rana Sheo Ambar Singh's case(8 ) and Krishna Prasad's case(') is as explained by Kamla Sahai, J. in that case.

In the result this appeal fails and it is dismissed with costs.

Y.P.

(I) (1967]2 s.c.R. 56 A.l.R. 1967 s.c. 801.

Appeal dismissed

12) 1963 B.L.J.R. 802.

(4) [196~] Supp. 3 S.C.R. 564

SHIV ASHANKAR PRASAD SHAH & ORS

BAIKUNTII NATH SINGH & ORS

March 7, 1969

S. M. SIKRI

R. S. BACHAWAT

K. S. HEGDE, JJ.

Code of Civil Procedure

Bihar Land Reforms Act

ss. 3, 4 & 6

Bihar Land Reforms Act, 1950

s. 3(1)

s. 14

s. 47

Civil Pro cedure Code

s. 4(d)

s. 4(d)

s. 11

Civil Procedure Code

s. 47

Civil Procedure Code

L.R. 17 I.A. 150

s. 4(d)

Bihar Land Reforms Act, 1950

ss. 3, 4 and 6

s. 3

s. 6

s. 6

Section 4

[1962] 2 S.C.R. 441

CIVIL. APPELLATE JURISDICTION

Sarjoo Prasad

R. C. Prasad

K. K. Sinha

S. K. Bisaria

Patiia High Court

s. 47

Civil Procedure Code

s. 4(d)

Bihar Land Reforms Act, 1950

s. 4

June 26, 194 7

September 19, 1955

Bihar

January l, 1956

s. 3

October 1, 1956

s. 14

June 18, 1958

s. 4

Civil Procedure Code

January 4, 1962

s. 11

Civil Procedure Code

Civil Procedure Code

Shahabad Court

s 11

art 1

India

s. 47

Civil Procedure Code

s. 3

s. 2(i)

s. 3

s. 4

s. 14

s. 4

Section 4

s. 4

s. 6

ss. 7

ss. 3, 4 and 6

s. 3

s. 6

s. 6

Section 4

s. 14

ss. 15 to 18

ss. 19 to 31

Section 24(5)

Bhumidari

s. 18

Transfer of Property Act

Gajendragadkar

section 4

Jha

Section 4

s. 4

section 16

section 3

s. 4(d)

s. 4(d)

Raj Kishore

Rana Sheo Ambar Singh

Krishna Prasad

Kamla Sahai


STATE OF MAHARASHTRA

11.

BAISHANKAR AVALRAM JOSm & ANOTIIER

March 10, 1969

[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]

Comtitution of India Art. 311 (2)-reasonable opportunity-whether r<quires supply of copy of Enquiry Officer's report-Bombay Reorganisation Act, 1960, ss. 60 and 61-whether liability to PG'Y arrears of salary iJ arising out of contract under s. 61 or in respect of 'actionable wrong other than breach of contrac( under s. 61.

The first respondent while he was holding the post of a Senior Jailor in March, 1954, was suspended on the allegations that he had committed certain a$ of misappropriation and maltreatment of prisoner>.

After an enqui'ry into the allegations, the Enquiry Officer made a report in January, 1955.

A show cause notice was then issued to him to which he replied by a written statement. The respondent was dismissed by an order of Inspector General of Prisons in February, 1955. The respondent filed a suit for a declaration that enquiry report was never supplied to him and consequently he had not been given reasonable opportunity within the meaning of Art. 311 of the Constitution.

He also prayed for a decree for arreal$ of pay from April, 1954 to May, 1960. His suit was dismissed by the !rial court but he succeeded in the fint appeal where the order of dismissal was declared illegal and void.

An appeal by the responde:nt to the High Court claiming arrears of salary was allowed.

As the State of Bombay had, in the meantime, been reorganised, the High Court also directed that the liability for arrears of salary upto the date of suit would be that of the State of Maharashtra and the liability arising out of the declaration that the apl)ellant was in Government service would be the liability of the State of Gujarat. A Letters Patent appeal filed by the State of Maharashtra was dismissed.

In appeal to this Court, it was contended, inter alia, on behalf of the appellant that the liability to pay arrears of pay was not a liability arising out of a contract within the meanin& of section 60 of the Bombay Reorganisation Act of 1960 but it was a liability in respect of an actionable wrong other than a breach of contract within the meaning of section 61 of the Act.

HELD : (I) The High Court had ritly found that the failure on the part of the competent authdrity to proVJde the respondent with a copy of the. repon of the Enquiry Officer amounted to denial of reasonable opportumty contemlated by Art. 311(2) of the Constitution. The Inspector eneral f Prisons had the report before him and the tentative conclusons amyed at . 1?v the Enquiry Officer were bound to influence him and. m depnvm~ the plaintiff of a copy of the report he was handicapped m not. knowm~ what material was influencing the Inspector General of Prisons. [920 F]

Union of India v. ff. C. Goel, [1964) 4 S.C.R. 718, 728, referred to.

It is true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts

of each case, but it would be in very rare cases indeed in which it could be .rua that the Government servant is not prejudiced by the non-supply of the report of the Enquiry Officer. [921 BJ

( 2) The decree of the High Court decreeing payment of arrears of salary is truly a liability in proceedings relating to a contract within s. 60(2)(a) of the Act. Although the words 'actionable wrong' other than breach of contract in this context are wide words and include something more than torts, but even so where a suit is brought by a Government servant for arrears of salary, the decree more properly falls under s. 60 of the Act rather than under s. 61. [925 Bl

State of Tripura v. The Province of East Bengal, [1951] S.C.R. I, 44, State of Bihar v. Abdul Maiid, [1954] S.C.R. 786, Owner of S. S. Raphael

v. Brandy, [1911] A.C. 413-14, Inland Revenue Commissioner v. Hambrook, [1956] 1 All E.R. 807, 811-12. Reilly v. R., [1934] A.C. 176, 179; Terrell v. Secretary of State for the Colonies, [1953] 2 Q.B. 482, 499; R. v. Doultre, [1884] 9 A.C. 745 and Bushe v. R., (May 29, 1869, The

llIDes), considered.

CIVIL APPELLATE JURISDICTION ; Civil Appeal No. 647 of 1966.

Appeal by special leave from the judgment and decree dated June 19, 24, 1963 of the Gujarat High Court in Appeal No. 704 of 1960 from Appellate Decree.

P. K. Chatterjee and S. P. Nayar, for the appellant.

I. N. Shroff, for respondent No. 1.

S. K. Dholakia and Vineet Kumar, for respondent No. 2.

The Judgment of the Court was delivered by Sikri, J.

This appeal by special leave arises out of the suit filed by Bhaishankar A valram Joshi, hereinafter referred to as the plaintiff, for a declaration that the order of dismissal, dated February 2/4, 1955, passed by the Inspector General of Prisons, Saurashtra, was illegal and void on the ground that it contraven ed the provisions of Art. 311 (2) of the Constitution. The plaintiff also prayed for a decree for Rs. 2,690 being arrears of his pay from April 1, 1954 to May 7, 1956.

The plaintiff failed before the Civil Judge, Rajkot, but on appeal succeeded before the District Judge, Central Saurashlra, inasmuch as he declared order dated February 2/ 4, 1955, illegal and void. The plaintiff appealed to the High Court claiming arrears

of salary and the State of Bombay filed cross-objections praying that the suit be dismissed. The second appeal was heard by the High Court of Gujarat (Miabhoy, J.) who directed that the decree passed by the lower appellate court "be varied so as to show that the appellant (plaintiff) continued to be in Government service till the date of the suit only and there will be a decree for Rs. 2,690

MAHARASHTRA V, BAISHANKAR,(Sikri,' J.) 919

being arrears of pay due to the appellant (plaintiff) upto the date of the suit. There will be a further provision in the decree that the liability arising out of the declaration that the appellant is iB Government service is the liability of the State of Gujarat and that the liability for the payment of the arrears of pay is the liability o{ the State of Maharashtra". The State of Maharashtra fil~ an application for .Jeave to appeal under the Letters Patent but this was dismissed. The appeal is now before us.

The learned counsel for the appellant, the State of Maharashtra, contends, first, that the High Court erred in holding that there had been a breach of Art. 311 (2) of the Constitution, as, according to him, there was no duty to supply a copy of the report of the enquiry held against the plaintiff.

Secondly, he contends that the High Court erred in fastening the liability in respect of the arrears . of pay on the State of Maharashtra.

Before we deal with 'the above points we may give a few facts.

The plaintiff entered service in the Gonda! State in 1927 as a jailor. 'IJle Gonda! State merged with the United States of Saurashtra. On March 6, 1953, the plaintiff was appointed senior jailor, Surendranagar District Jail.

On March 25, 1954, he was suspended, and at that time he was acting as Accountant at Rajkot Central Jail. On March 7, 1954, he was served with a charge sheet. In substance the charges were that while he was serving at Surendranagar he had committed certain acts of misappropriation of food stuffs meant for prisoners, maltreatment of pn.soners and acceptance of illegal gratification from them. The

plainiff filed a written statement on September 4, 1954, and an enqmry was held by Mr. Gangopadhyay. The plaintiff appeared b".fore tat officer and cross-examined witnesses.

He also exanuned hunself and some witnesses.

He was also allowed to apper through an Advocate in the enquiry proceedings. The Enqwry fficer _made a _repOrt and_ on or _about January 7, 1955, the followmg notice was issue~ t<? him callmg upon him to show cause why he should not be d1sm1ssed from service : ,.

"To

Shri Bhaishanker A. Joshi, Accountant, Rajkot Central Prison (Under suspension)

Charges framed agnstyou under this office No. Cl 14 dated ~7-3,54 ad m yarticular the charge of having accepted tllegal at1ficat10n from prisoner Ratilal Jivan have been established to the satisfaction of Government you _are. hereby asked to show cause why the punishment of d1sm1ssal from service should not be inflicted upo yoo, I

You should please submit your reply to this office, A through the Superintendent, Rajkot Central Prison, within a week from the date of receipt of this letter without fail.

Sd/- M. J. BHAIT

Inspector General of Prisons, Government of Saurashtra.''

The plaintiff filed a written statement. He was dismissed by the

Inspector General of Prisons by his order dated February 2/ 4,

1955. This order was amended on February 9, 1955, in which it was stated that "the aforesaid order should be read so as to show that the plaintiff was dismissed from service on account of charge of accepting illegal gratification from prisoner Ratilal Jivan having been conclusively proved against him in the departmental inquiries conducted against him by the Government".

In the plaint the plaintiff alleged that copy of the enquiry report was never supplied to him, and consequently he had not been given reasonable opportunity within the meaning of Art. 311 of the Constitution. The State of Bombay admitted that the plaintiff was not-supplied with a copy of the report of the Enquiry Officer, but pleaded that the plaintiff had not asked for copy of the report and had not been prejudiced by the non-supply of the copy of the report.

The High Court held that the failure on the part of the competent authority to prnvide the plaintiff with a copy of the report of the Enquiry Officer amounted to denial of reasonable opportunity contemplated by Art. 311 ( 2) of the Constitution.

It 1e1115 to us tliat the High Court came to a correct conclusion.

The plaintiff was not aware whether the Enquiry Officer reported in his favour or against him. If the report was in his favour, in his representation to the Government he would have utilised its reasoning to dissuade the Inspector General from coming to a contrary conclusion, and if the report was against him he would have put such arguments or material as he could to dissuade the Inspector General from accepting the report of the Enquiry Officer.

Moreover, as pointed out by the High Court, the Inspector General of Prisons had the report before im and the tentative conclusions arrived at by the Enquiry Officer were bound to influence him, and in depriving the plaintiff of a copy of the report he was handicapped is not knowing what material was influencing the Inspector General of Prisons.

MAHARASHTRA V. BA!SHANKAR (Sikri, J.) 921

As observed by Gajendragadkar, J., as he then was, in Union of !,, Pia v. H. C. Goel('), "the enquiry report along with the evidence recorded constitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by competent officer and the report he makes as a result of the said enquiry".

It is true that the question whether reasonable opportunity has or has not been afforded to the Government servant must depend on the facts of each case, but it would be in very rare cases indeed in which it could be said that the Government servant is not prejudiced by the non-supply of the report of the Enquiry Officer.

In rl1e result we must over-rule the first contention urged on behalf of the appellant, the State of Maharashtra.

The plaintiff is not concerned with the second contention but it is a dispute between the State of Maharashtra and the State of Gujarat. As is well-known, the State of Bombay was re-organised into the above two States and the Bombay Reorganisation Act,

1960, contained various provisions for the apportionment of assets and liabilities betwen the two States.

We are here concerned with ss. 60 and 61 of the Bombay Reorganisation Act,

1960. which read thus :

"60. (I) Where, before the appointed day, the State of Bombay has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be dmed to have been made in the exercise of the executive power,-

(a) if such purposes are, as from that day exclusively purposes of either the State of Maharashtr~ or the State of Gujarat, of that State; and

(b)' in any other case, of the State of Maharashtra;

and all rights and liabilities which have accrued, or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the State of Bombay, be rights or liabilities of the State of Maharashtra or the State of Gujarat, as the case may be;

Provided that in any such case as is referred to in clause (b), !he initial .allocation of right$ and liabilities made y this su.b-sect10n shall be subject to such finan- . cm! ad1ustment as may be agreed upon between the State

ii) [1964] 4 S.C.R. 718. 728.

vf Maharashtra and the State of Gujarat, or, in default of such agreement, as the Central Governmenf may by order direct.

(2) For the purposes of this section there shall be deemed to be included in the liabilities which have accrued or may accrue under any contract-

(a) any liability to satisfy an order or award made by any court or other tribunal in proceedings relating to the contract; and

(b) any liability in respect of expenses incurred in or in connection with any such proceedings.

(3) This section shall have effect subject to the other provisions of this Part relating to the apportionment of liabilities in respect of loans, guarantees and other financial obligations; and bank balances and securities shall, notwithstanding that they partake of the nature of contractual rights, be dealt with under those provisions.

61. Where, immediately before the appointed day .. the State of Bombay is subject to any liability in respect of any actionable wrong other than breach of contract, that liability shall,-

(a) if the cause of action arose wholly within the territories which, as from that day, are the territories of the State of Maharashtra or the State of Gujarat, be a

liability of that State; and

(b) in any other case, be initially a liability of the State of Maharashtra but subject to such financial adjustment as may be agreed upon between the States of Maharashtra and Gujarat or, in default of such agreement, as the Central Government may by order direct." The learned counsel for the State of Maharashtra contends that the liability to pay arrears of pay was not a liability arising out of a contract but was a liability in respect of an actiona hie wrong other than a breach of contract.

This Court in State of Bihar v. Abdul Majid(1) held "that the rule of English Law that a civil servant cannot maintain a suit again>t the Crown for the recovery of arrears of salary does not prevail in India and it has been negatived by the provisions of the statute law in India''. Mahajan. C.J., speaking for the Court. ob, ervcd at p. 802:

"As regard torts of its servants in exercise of sovereign powers, the company was not, and the Crown in --·---- -------------

(1) [195"] S.C.R. 786.

India wa• not, liable unless the act has been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office.

The present claim is not based on tort but is based on quantum meruit or contract and the c0un is entitled to give relief to him." It may be that these observations are not conclusi.ve on the point under consideration. It seems to us, however, that some clements of relationship between a public servant and Government are based on contract within the meaning of s. 60 of the Bombay Reorganisation Act, 1960. ln particular, the liability to pay salary, when it has been fixed, arises out of a contract to pay salary. Authority is not lacking even in England where a 'pecial relationship exists between the Crown and its public servants.

In Owner or S. S. Raphael v. Brandy(') the head-note reads :

"'A stoker on board a merchant ship, who was entitled to wages from the shipowners, and also as a stoker in the Royal Naval Reserve to 6 £ a year as a retainer, was injured by an accident on the ship which disabled him from continuing to serve in the Royal Naval Reserve:-

Held. that the stoker was entitled under the Workmen's Compensation Act, 1906, to compensation from the shipowners :not only in respect of his wages but also of the retamer, which must be taken into account as earnings unde: a concurrent contract of service."

The Lord Chancellor in the course of the speech observed :

"A point wa' made before your Lordships which does not appear to have been made in the Court below that there ':".as n? contract with the Crown at all here'.

The athonties cited_ go no further than to say that when there IS an engagement betwen the Crown and a military o~ naal officer the Crown is always entitled to determme it at pleasure, and that no obligation contrary to that would be recognized or valid in law.

It was then said that there were not here concurrent

~, otract,.. f a)Sfee with Fletcher Moulton L.J. that this th lmoskt a typical cae of concurrent contracts because e wor man was bemg paid w f h' ' board a merchant shi d as or IS. services on earnina h' 6£ P. an at e same time he wa' the Cr'.Ow~· a year by yi:tue of his engagement with

-;-;;;=-::--;:;-'.'_a::.:n::.:dh:.:_e was givmg an equivalent for that

(I) [1911] A.C. 413-14. . •

because he was keeping himself fit and doing the work which he stipulated to do."

It is true that Lord Goddard, C.J., in Inland Revenue Comnissioners v. Hambroo/i( ') observed :

"If I may be bold enough to express a conclusion on a matter on which the Judicial Committee hesitated in Reilly v. R('), it is that a11 established civil servant is appointed to an office and is a public officer, remunerated by moneys provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown, though there may be as indicated in Reilly v. R. (') exceptional cases, as for instance an engagement for a definite period where there is a contractual element in or collateral to his employn1ent."

But in the Court of Appeal nothing was said about these observations.

It will be remembered that the Privy Council had said in Reilly v. R( 2 ) that "their Lordships are not prepared to accede to this view of the contract, if contract there be. If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine "for cause" it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded."

Even Lord Goddard, C.J., in Terrel/ v. Secretary of State for the Colonies(') observed that "the case (Reilly v. R.)(2 ) shows that there may be contractual. rights existing before determination of a contract at will which are not inconsistent with a power to

determine," and he stuck to this in Hambrook's case(') by statftlg:

"Although it is clear that no action for wrongful dismissal can be brought by a discharged civil servant, I may be allowed to say that I adhere to the opinion which I expressed in Terrell v. Secretary of State for the Colonies(') that he could recover his salary for the time during which he has served. He would claim on a quantum mersuit and I am fortified in this view by Reilly v. R. (2 ), bv R. v. Doultre(4) and bv Bushe v. R(') referred to in Robertson's book at p. 338."

(1) ,1956] 1 All E.R. 807, 811-12.

(3) [1!153] 2 Q.B. 482, 499. (S) (hlay 29, 1869, The Times)

(2) [1934] A.C. 176; 179.

(4) (J 884) 9 A.C. 145.

A We are here concerned with a choice between s. 60 and s. 61, ; vhich lay down two broad categories.

It seems to us that the decree of the High Court decreeing payi:nent of arrears of salary

is truly a liability in proceedings relating to a contract within ' 60(2)(a) of the Act. It is true, as held by this Court in the State of Tripura v. Th/ Province of East Bengal('), that the words B 'actionable wrone other than breach of contract' in this context are wide words and include something more than torts, but even so where a suit is brought by a Government servant for arrears of salary, the decree more properly falls under s. 60 of the Act rather than under s. 61.

In the result the appeal fail~ and is dismissed with costs to -C the respondent, Baishankar Avalram Joshi. The State of Gujarat will bear its own costs in this appeal.

R.K.P.S.

Appeal dismissed.

(l) 119s11 s.c.R. 1,44.

STATE OF MAHARASHTRA

BAISHANKAR AVALRAM JOSm & ANOTIIER

March 10, 1969

S. M. SIKRI

R. S. BACHAWAT

K. S. HEGDE, JJ.

Art. 311

Bombay Reorganisation Act, 1960

ss. 60 and 61

s. 61

s. 61

Art. 311

State of Bombay

Maharashtra

State of Gujarat

State of Maharashtra

section 60

Bombay Reorganisation Act

section 61

Art. 311(2)

[1964) 4 S.C.R. 718

s. 60(2)(a)

s. 60

s. 61

P. K. Chatterjee

S. P. Nayar

I. N. Shroff

S. K. Dholakia

Vineet Kumar

Sikri

Bhaishankar A valram Joshi

February 2/4, 1955

Saurashtra

Art. 311

April 1, 1954

May 7, 1956

Civil Judge, Rajkot

District Judge, Central Saurashlra

February 2/ 4, 1955

High Court of Gujarat

Miabhoy

MAHARASHTRA V, BAISHANKAR,(Sikri

Art. 311

IJle Gonda! State

United States of Saurashtra

March 6, 1953

25, 1954

Rajkot Central Jail

March 7, 1954

Surendranagar

September 4, 1954

Gangopadhyay

January 7, 1955

The Enqwry fficer made a repOrt and on or about January 7, 1955, the followmg notice was issue~ t<?

Bhaishanker A. Joshi

Cl 14

Ratilal Jivan

2/ 4,

February 9, 1955

Art. 311

Art. 311

MAHARASHTRA V. BA!SHANKAR

Gajendragadkar

Gujarat

ss. 60 and 61

Bombay Reorganisation Act

State of Maharashtr~

State of Gujarat

State of Maharashtra

[1964] 4 S.C.R. 718

vf Maharashtra

State of Gujarat

Central Government

India

Mahajan

s. 60

Bombay Reorganisation Act, 1960

England

Compensation Act, 1906

Fletcher Moulton

Goddard

Parliament

Goddard

Hambrook

Robertson

s. 60

s. 61

s. 60

s. 61

Baishankar Avalram Joshi