IL R • .OEB

COLLECTOR OF CENfRAL EXCISE, SHILLONG

Ap(il 7, 1971.

[S. M. SIKRI C. J., G. K. MITTER, K. S. HEGDE, A. N. GROVER

AND P. JAGANMOHAN REDDY, JJ.]

Service Ru/ts-Central Civil Services Classification-Control and Appeal Rules 1957-Ru/e lS contemplates only one inquiry-Inquiry Oflicer can be asked to record further evidence-Disciplinary authority can rt•consider evidence itself and cotm to its own conclusion under r. 9.

The appellant was a sub-Inspector of Central Excise. A depanmental inquiry was held against him in respect of a charge of misappropriation of Government money. The Inquiry Officer exonerated him. The Collector Central Excise, ordered another Inquiry Officer to make a report after taking further evidence.

The second Inquiry Officer at first exonerated the appellant but later, after taking some more evidence as directed by the Collector, reported that although the charge against the appellant was not proved hie conduct may not be above board. Dissatisfied with the raport the Collector ordered a fresh inquiry to be held by a third officer. This time a verdict of guilty was given and the appellant was dismissed. The appellant's writ petition in the Court of the Judicial Commissioner Tripura having failed be appealed to this Court by special leave. The question for consideration was whether the multiple inquiries held againsf the appellant were in accordance with r. 15 of the Classification and Control Rules. Allowing the appeal,

HELD: Rule 15 on the face of it really provides for one inquiry but it n1ay be poss.ible if in a particular case there has been no proper inquiry

because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined fl>T some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in r. 1 S for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary A11thority has enough powers to reconsider the evidence itself and come to its own conclusion under r. 9. [379 HJ

Tb• rules do not contemplate an action such as taken by the Collector in appointing a third Inquiry Officer. It seems that the Collector instead of taking responsibility himself was determined to get some officer to report against the appellant. The procedure adopted was not only against the rules but also harassing to the appellant. (380 BJ

Jn the result it must be held that no proper inquiry has been conducted in the case and, therefore, there has been a breach of Art. 311 (2) of the Constitution.

(380 E]

CML APPELLATE JURISDICl'ION : Civil Appeal No. 612 of 1967.

Appeal by special leave from the judgment and order dated H February 16, 1966 of the Judicial Commissioner Court, Tripura in Writ Petition No. 12 of 1962.

SUPREME COURT REPORTS (1971] SUPP. s.c.R.

A M. R. Ramamurthi and Vineet Kumar, for the appellant.

0. P. Malhotra, Ram Panjwanl and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

Sikri, C.J.-This is an appeal by special leave from the judgment of the Judicial Commissioner for Tripura and Agartala dismissing the petition under Art. 226 of the Constitution filed by the appellant, K. R. Deb.

The relevant facts are these : The appellant was appointed as a Sub Inspector of Central Excise in a temporary vacancy on September 20, 1958 and he reported for duty on October 15, 1958. On May 30, 1959 he was alleged to have detained five maunds of onion from the house of one Sayed Ahmad at Ramendranagar. It is further alleged that one Siddique Ahmad handed over a sum of Rs. 100 to the appellant, through one Harendra Kumar Dutta, on May 31, 1959, but the appellant did not mention the realisation of this amount in his seizure report.

The following charge was framed against the appellent by Shri R. C. Mehra, Collector, Central Excise & Land Customs, Shillong:

"That Shri K. R. Deb, Sub-Inspector, was found guilty for concealing the fact of realisation of Rs. 100 from Shri

Siddique Ahmed on 31-5-1959 and not reporting the mlitter in the seizure report or in his diary and th.us misappropriated Govt. money of Rs. 100."

The allegations regarding this charge were supplied to the appellant.

The appellant applied for copies of certain documents on December 28, 1960. On March 30, 1961 he submitted his written statement of defence. In this written statement the appellant denied the charge. The Collector, by his letter dated May 11, 1961, appointed Sbri B. P. Barua, Examiner of Accounts, Central Excise and Land Customs, as Inquiry Officer Shri Barua held an inquiry and submitted a report, dated July 3, 1961, holding that the charge framed against the appellant was not proved. The Inquiry Officer concluded :

"There is no conclusive evidence to establish the charge of misappropriation of Govt. money. It is only established that the goods (5 mds. of onions) were seized from the house of Sri Siddiq~ l\hmed but in his diary and seizure report Sri K. R. Deb concealed the fact and seizure was shown to have been ma!le on border, 1be charge does not include such concealment of fact"

DEB v. COLJ, JlCl'OR (Sikri, C.J.)

By order dated August 22, 1961, the Collector, Shri R. C.

Mehra, appointed Shri R. K. P. Sinha. Superintendent, Central Excise & Land Customs, as Inquiry Officer to conduct a supple-

:metary open inquiry in the disciplinary proceedings instituted :agamst the appellant The reason for conducting this inquiry is :stated in order tbqs :

"Shri Jl. P. Barua, Examiner of Accounts, Customs & Central Excise, was previously appointed Inquiry Officer in this case, but he had not recorded an evidence of the prosecution witnesses viz., SI Shri Harendra Kr. Dutta, Jagabandhu Patwari, Syed Ahmed and Siddique Ahmed during the COl!l'S8 of open enquiry."

In his report dated October 12. 1961. the Inquiry Officer reported that "there is nothing on record to prove the alleged acceptance of Rs. 100 bY Sbri K. R. Deb, Sub-Inspector." In his report he stated that Shri Harendra Kumar Datta did not appear in the Inquiry though he acknowledged the receipt of summons issued to him. It appeared to the Inquiry Officer that Shri Dutta was not willing to attend the inquiry. In the course of the report he observed:

"Thus the entire story of handing over the money to Sri Harendra Kumar Dutta in the presence of the Sub- Inspector on 3 l-S-59 topples down. It is also evident that the SubInspector could not have demanded the money on 30.5-1959 as the seizure it appears was made in the absence of Shri Siddique Ahmed. The whole episode, it appears, therefore, is a cooked up and fabricated to implicate the sub-lnspr. for the seizure he effected."

After this report one would have thought that the Collector would make up his mind, but instead the Collector wrote on Dec. 20, 1961, to Shri R. K. P. Sinha, complaining that the report submitted by him had been found to be very sketchy and that he had failed to appreciate the importance of the evidence of Harendra Kumar Dutta, a prosecution witness in the case. The Collector further obliCfVed that "in case he had fa'iled to rpond to the suar moll. you would have takeµ steps to send somebody at his house." He pointed out sonie further defects aµd drew the attention of the Inquiry Officer to the stalenlent of Sepoy Monoranjan wl!ere

from it appeared witho11t any shadow of doubt that a sum of Rs. 100 was given to Shri K. R. Deb in the presenee of this sepoy.

The Collector further observed that "in the face of overwhelming evidence regardins thiS allegation of corruption, it is difficult to minimise the importance of th8 witnoues." The Collector then proceeded to direct. the Inquiry Officu to examine Harendra Kumar iDutta, Jagabandha P&twari nad Sepoy Monmajan Ghosh witliout

Ji'

SUPRElllE COURT REPORTS

(1971] SUPP. S.C R.

further delay, and to submit the final repori before January

10, 1962.

The Inquiry Officer in his report dated January 20, 1962, stated: "From the various statements g'iven to me in my enquiry dated 20-9-61, 4-1-62 and 12-1-62, it may kindly be seen that no conclusive proof is forthcoming to establish the charge of acceptance of money (Rs. 100) by Sri K. R.

Deb. But in view of the previous enquiry and statements given by witnesses, evading reply of Sri Dutta, the conduct of Shri K. R. Deb may not be above board."

On February 13, 1962 the Collector passed the following. order:

"In supersession of this office letter 0. No. II(IO) All/ Con/60 and 0. No. HOO) A/3/Con/61, dated 12-5-1961 and 22-8-61 respectively, the undersigned considers that another Inquiry Officer should be appointed to inquire afresh into the charge framed against Sarbasri K. R. Deb, Sub-Inspector of Central Excise, Shillong Collectorate.

Now therefore the undersigned in exercise of the powers conferred by rule 15(4) of the C.C.S. (C.C.A.) Rules 1957 hereby appoints Shri K. P. Patnaik, Examiner of Accounts, Customs and Central Excise, Shillong as an enquiry officer to inquire into the charges framed against the said Sarbasri K. R. Deb."

On March 6, 1962, Shri Patnaik reported that it was proved that "Shri K. R. Deb did not bring into account the sum of Rs. 100 realised on May 31, 1959 from Siddique Ahmad of Ramendranagar.

The amount has therefore been misappropriated. The charge of misappropriation of Rs. JOO is therefore proved against Sri K. R.

Deb."

On March 15, 1962 a notice was issued to the appellant to show cause why he should not be dismissed from service.

On March 20, 1962 he filed an application giving the list of documents copies of which he wanted. He gave his explanation on May 21, 1962 and asked for personal hearing. On June 4, 1962, he was dismissed from service and on June 14, 1962, he filed the writ petition out of which this appeal arises.

A number of points have been raised before us but we need only mention one point, viz .. that the Collector had no authority to appoint Shri K. P. Patnaik to inquire into the charge after the: Inquiry Officers had reported in bis favour. It was urged before us that such an inquiry is not contemplated by the Central Civir

DEB V. COLLECTOR (Sikri, C.J.) 379-

Services (Classification, Control and Appeal) Rules, 1957. It was A contended that rule 15 .of the Classification and Control Rules did not contemplate successive inquiries, and at any rate, even if it contemplated successive inquiries there was no provision for setting aside earlier inquiries without giving any reason whatsoever. It was further contended that the order dated Februarv 13, 1962 was ma/a fide. ·

Rule 15(1) of the Classification and Control Rules reads as follows:

"(I) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties speeified in clauses (iv) to (vii) of rule 13 shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided."

Clause (2) of rule 15 provides for framing of charges and communication in writing to the government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under cl. (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions.

Under clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such. of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inqDiry, recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings Qf the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. Under

cl. (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its find ings on each charge." Clause (10) provides for issue of showca use notice.

It seems to us that Rule 15, on the face of it, really provides for one lnquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for

SUPREME.COURT ~EPO~TS

[1971) SUPP. S.C.R.

completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority.

The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9.

In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant.

The procedur.e adopted was not only not warranted by the rules but was harassing to the appellant. ·

Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplin11ry Authority had made up its mind to dismiss the appel !ant. The Judicial Commissioner held that on ihe facts it could not be said that the Disciplinary Authority was prejudiced against t!ie appellant. )Jut it seems to us that on the material on record a S\!Spicjop does arise that the Collector was determined to get some nguiry Ollicer to report against the appellant.

In the rsult we hold that no proper inquiry has been COJl.· ducted in the case iind, therefore, there hiis been a breach of art. 311(2) of the Constitµtion.

The appeal is accordingly allowed and the ord.er dated June 4, 1962 quashed, and it is declared that tile 11ppeUan1 should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office. The appellant will have his costs here and in the Court of the Judicial Commissioner.

Fees shall be payable by the appellant to his advocate and be allowed on taxation.

G.C. 4.ppecrl allowed.

S. M. SIKRI

G. K. MITTER

K. S. HEGDE

A. N. GROVER

P. JAGANMOHAN REDDY, JJ.

Art. 311

Art. 226

art. 311(2)


KUMARI N. V ASUNDARA

STATE OF MYSORE & ANR.

April 15, 1971.

(J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.J

Constitution of India, Art. 14-Equality-Rules for selection of candidates to Pre-Professional course in the Government Medical Colleges in the State of Mysore framed in 1970-Admission based on domicile and residence for not less than 10 years prior to application-Reasonableness.

Rule 3 of the rules for selection of candidates for admission to the preprofessional course leading to M.B.B.S. in the Government Medical

Colleges in the State of Mysore provided that "no person who is not a citizen of India and who is not domiciled and resident in the State of Mysore for not less than ten years at any time prior to the date of the application for a seat, hall be eligible to apply"

The petitioner's application for admission was rejected on the ground that she had not resided in the State for a period of ten years as required by r. 3. She challenged the constitutional validity of r. 3 on the ground ef violation of right to equality guaranteed by Art. 14 of the Constitution.

It was contended that the impugned rule, by imposing the condition of residence in addition to the condition of being domiciled in the State created an artificial classification which suffered from unconstitutional descrimination. In support of the .validity of the rule it was urged that by the rule the

State only attempted to select those students who were more likely to serve as doctors in the State and it was for the State to determine the sources from which to select candidates.

Dismissing the petition,

HELD: The word "domicile" in r. 3 is used to convey the idCa of y intention to reside or remain in the State of Mysore.

If classification based on residence does not impinge upon the principle of equality, as held by this Court in D. P. Joshi v. State of Madhya Bharat, then the further condition of residence in the State for at least n years would also be equally valid unless it is shown that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia.

The object of framing the impugned rule is to impart medical education to the best G. talent available, out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors the inhabitants of the State.

The State has to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based n1edical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classifiCation inspired by this consideration and selection on merit from such classified groups, H therofore, cannot be challenged on the ground of inequality violating Art.

14. The petitioner. has not shown that the impugned rule suffer from the vice of unreasonableness. [388 D-389 CJ

:382

SUPREME COURT REPORTS (1971] SUPP. s.c.R.

.A There is likelihood of some cases of hardships under the impugned

J!'

ru1e. But cases of hardships are likely to arise in the working of almost any rule which may be framed for selecting a limited number of candidates for ad1nission out of a long list. This would not render the rule unconstitutional. [389 E]

D. P. Joshi v. The State of Madhya Bharat and Anr., [1955] I S.C.R. 1215, relied on.

Chitra Ghosh & Anr. v. Union of India and Ors .. [1970] I S.C.R. 413 and Minor P. Rajendran v. State of Madras & Ors .. [1968] 2 S.C.R. 786, referred to.

ORIGINAL JURISDICTION: Writ Petition No. 606 of 1970.

Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights.

R. B. Datar, for the petitioner.

Niren De, Attorney-General and S. P. Nayar, for the respon dents .

The Judgment of the Court was delivered by

Dua, J.-The only question raised in this writ petition under Art. 32 of the Constitution relates to the constitutional validity of r. 3 of the Rules for Selection of candidates for admission to the Pre-Professional/B.Sc. Part I Course leading to M.B.B.S. in the Government Medical Colleges and for certain seats in the private Medical Colleges in the State of Mysore framed by that State on July 4, 1970 (hereinafter called "the Selection Rules").

The petitioner Kumari N. Vasundara claims to have passed the Pre-University Examination of the Bangalore University with physics, chemistry and biology as optional subjects securing 78 %

mrks in these subjects. She applied for adm'ission to the Pre Professional Course leading to the M.B.B.S. in the Government Medical Colleges, but the Selection Committee, after interviewing her on September 14, 1970, rejected her application on the ground that she had not resided in the State of Mysore for a period of ten years prior to the date of her application as required by r. 3 of the Selection Rules. It is not disputed that but for the condition requiring residence in Mysore State for a period of ten years prior to the date of her application she was otherwise eligible for admission under the Selection Rules in all other respects. Rule 3 reads as under : ·

"No person who is not a citizen of India and who is not domiciled and resident in the State of Mysore for not

VASUNDARA ' MWORB (Dua, J.) 383

less than ten years at any time prior to the date of the application for a seat, shall be eligible to apply:

Provided that this provision shall not apply (a) in the case of persons applying for seats referred to in clauses (a), (b), (c), (d) and (e) of sub-rule (!) of rule 4,

(b) in the case of children of Central Government employees serving on duty in the State on the date of making the application and (c) in the case of children of Mysore Government employees including children of members of all India Services borne on the Mysore State Cadre who--

"(i) are serving or have served outside the State of Mysore on deputation during the relevant period, and

(ii) are in the service of the State on the date of making the application or have retired from service not more than four years prior to the date of making the application."

Shri Datar, the learned counsel for the petitioner, challenged the constitutional validity of r. 3 on two grounds. The first challenge is founded on the ground of violation of the right to equality guaranteed by Art. -14 of the Constitution. According to his argument the impugned rule has, by imposing the condition of residence for a minimum period of ten years in the State of Mysore in addition to the condition of being domiciled in that State, created an artificial classification which suffers from unconstitutional discrimination, between the Indian citizens domiciled in the State of Mysore who have resided there for ten years or more and those who have resided there for less than ten years. The period of ten years of residence selected in this rule is not only arbitrary but is highly unreasonable, based on no rational or Intelligible principle, said the counsel. Its unreasonableness was illustrated by submitting that students normally. pass the Pre- University Examination at the age of 16 or 17 years. To expect such students to have resided in the State of Mysore for ten years in order to be eligible for admission to the Pre-Professional/ B.Sc.

Part I Course leading to M.B.B.S. would mean that the children of those Indian citizens having their domicile in the State of Mysore who happen, for compelling reasons, to reside in other States in the Indian Union before their children have completed ten years of residence in the State of Mysore would be deprived of the opportunity of having medical education in their own State of domicile.

This argument was elaborated by submitting that if all other States in the Union were also to frame similar rules

SUPREM!l COURT REPORTS (1971] SUPP. s.c.R.

insisting on residence for ten or more years, then the children of those citizens, who are compelled by the necessity of earning their livelihood, to shift their residence from one State to another at short intervals, without completing ten years of residence in any one State, would never be able to get admission in any State.

Fixing a period of ten years of residence in the State, according to Mr. Datar, is arbitrary and fanciful having no rational relationship or nexus with the object or purpose of framing the rules, namely, of selecting the best talent or the most meritorious students for admission to the Medical Colleges.

The learned Attorney-Oeneral on behalf of the respondents submitted that by the Impugned rule the State has attempted to select those students who are more likely to serve as doctors in the State after they pass out. In this connection our attention was drawn to the counter-affidavit filed by the State. The Attorney-Oeneral further contended Iii.at it was for the State to determine the sources from which to select candidates and the selection so made deserves to be upheld. In support of the validity of the rule he drew our attention to the deciSion of this Coun in Chitra Ghosh & Another v. Union of India and Others(') and to a decision of the Mysore High Court in K. Shivashankar v. University of Mysore & Others(').

This Court in Minor P. Rajendran v. State of Madras & Ors.(') while dealing with the rules made by the State of Madras for the selection of candidates for admission to the First Year integrated M.B.B.S. course, struck down, as violative of Art. 14, the rule which allocated seats on district-wise basis. A bench of five judges observed in that case :

"The question whether district-wise allocation is violative of Art. 14 will depend on what is the object to be achieved in the matter of admission to medical colleges.

Considering the fact that there is a larger number of candidates than seats available, selection has got to be made.

The object of selection can only be to secure the best posSible materrial for ad!miS&!on to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best

(1) [197011 S. C.R. 413.

(3) [196812 S. C.R. 786.

(2) (1970] 1 Mys.L.J. 47S.

VASIJNDAJ.A v. llYSOR.B (Dua, J.)

possible talent from the two sources. If that is the object. it must necessarily follow that that object would be defeated if seats arc allocated district by district It can not be and has not been denied that the object of selec lion is to secure the best possible talent from the two sources so that the country may have the "best possible doctors". If that is the object, the argument on behalf of the petitioners I appellant is that jhat object cannot possibly be served by allocating seats district-wise. It is true that Art. 14 docs not forbid classification, but the classi fication has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reason able classification. The fact however that the classifica tion by itself is reasonable is not enough to support it un less there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are con cerned is to get the best talent for admission to professional colleges, the allocation of seats district-wise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources."

The argument that candidates coming from various districts would settle down in those districts to serve the people there was not accepted, because there was no material on the record giving facts and figures suggesting that candidates from a particular district would generally settle down in that district. It was not even so stated in the affidavit filed on behalf of the State of Mysore in that case. 'The Court, however, took care to clarify the legal position by adding :

"We may add that we do not mean to say that territorial classification is always bad under all circumstances. But there is no doubt that district-wise classification which is being justified on a territorial basis in these cases is violative of Art. 14, for no justification worth the name in support of the classification has been made out."

In Chitra Ghosh's case r> this Court said:

"The main purpose of admission to a medical college is to impart education in the theory and practice of me-

(I} [1970] 1 S. C.R. 413.

25-1 S.C. India/71

Sa&

SUPREMB COURT REPORTS [1971] SUPP, s.c.ll.

dicine.

As noticed before the sources from which students have to be drawn are primarily determined by the authorities who maintain and run the institution, e.g., the Central Government in the present case. In Minor P. Rajendran v. State of Madras-(1968) 2 S.C.R. 786it has been stated that the object of selection for admission is to secure the best possible material. This can surely be achieved by making proper rules in the matter of selection but there can be no doubt that such selection has to be confined to the sources that are intended to supply the material. If the sources have been classified in the manner done in the present case it is diflicult to see how that classification has no rational nexus with the object of Imparting medical education. and also of selection for the purpose."

The decision in Minor P. Rajendran's case ('J was distinguished on the ground that in that case the classification made districtwise had been considered to possess no reasonable relation wi&h

the object sought to be achieved. It was also observed in Chitra Ghosh's case(').

"It is the Central Government which bears the financial burden of running the medical college. It is for it to Jay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The .Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide facilities for medical education.

If the sources ate properly classified whether on territorial. geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification."

According to this observation which merely re-affirms the settled law, if the sources are properly classified on reasonable basis. then courts are not expected to interfere with the manner and method of making the classification. Reasonable basis of course must mean that the basis is not arbitrary or fanciful, but bears a just, rational and intellible. relation with the object sought to be achieved by the classification.

(I) [1968) 2 S.C.R. 786. c2> [19101 1 s.c.R. 413.

In D. P. Joshi v. The State of Madhya Bharat and Another (') this Court had while uphofding by majority the rules, made by the State of Madhya Bharat, for admission to the Mahatma Gandhi Memorial Medical College, Indore, charging capitation fee from non-Madhya Bharat students laid down that in those rules the word "domicile" was used in its popular sense convey ing the idea of residence. Venkatarama Ayyar, J., speaking for the ma jotity said : .

"It was also urged on behalf of the respondent that the word "domicile" in the rule might be construed not in its technical legal sense, but in a popular sense as meaning "residence", and the following passage in Wharton's Law Lexicon, 14th Edition, page 344 was quot ed as supporting such a construction :

"By the term 'domicile', in its ordinary acceptation, is meant the place where a person lives or has bis home.

In this sense the place where a person has his actual residence, inhabitancy, or commorancy. is some times called '.his domicile".

In Mcmullen v. Wadsworth (1880) 14 A. C. 631it was observed by the Judicial Committee that "the word 'domicil' In article 63 (of the Civil Code of Lower Canada) was used in the sense of residence, and did not refer to international domicile". What has to be considered is whether in the present context "domicile" was used in the sense of residence. The rule requiring the payment of a capitation fee and providing for exemption therefrom refers only to bona fide residents within the State. There ls no reference to domicile in the rule itself, but in. the Explanation which follows, clauses (a) and (b) refer Jo domicile, and they occur as part of the definition of "bona fide resident".

In Corpus Juris Secundum, Volume 28, page S, It is stated:

"The term 'bona fide residence' means the residence with< domiciliary intent."

There is therefore considerable force in the contention of the respondent that when the rule making authorities referred to domicile in clauses (a) and (b) they were thinking really ofi ; residence. In this view also, the contention that the rule is repugnant to article 15(1) must fail." ·

(I} [19SS] I S. C.R. 121S.

988 SUl'REM!I COURT REPORTS

(1971) SUPP.S.C.R.

A Under the impugned rule in that case no capitation fee was to be charged from the students who were bona fide residents of Madhya Bharat, and the expressio11 "bona fide resident" for the purpose of the rule was defined as (to quote the relevant portion):

"one who is-

(a) a citizen of India whose original domicile is in Madb.ya Bharat, proVided he has not acquired a domicile elsewhere, or

(b) a citizen of India, whose original domicile is not in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for not less than 5 years at the date, on which he applies for admission, or

(c) a person who migrated from Pakistan before September 30, 1948 and intends to reside in Madhya Bharat permanently, or

(d) ............................................. " In our view the word "domicile" as used in r. 3 in the present case is also used to convey the idea of intention to reside or remain in the State of Mysore. If classification based on residence does not impinge upon the principle of equality eru.irined in Art. 14 as held by this Court in the decision already cited which is binding upon us, then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that seleotion of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia. The object of framing the impugned rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. It is true that it is not possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors : they have indeed a fundamental right as citirzens to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise. But these possibilities are permissible and inherent in our constitutional set-up and these considerations cannot adversely affect the constitutionality of the otherwise valid rule.

The problem as noticed in Minor P. Rajendran's case(') and as revealed by a large number of cases which have recently come to this Court Is that the number of candidates desirous of having medical educa-

<lion is very much larger than the number of scats available in medical colleges. The need and demand for doctors in our c0un- .try is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has therefore to formulate with reasonable

fonight a just scheme of classification for imparting medical education to the available candidates which would serve the object and puipose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Art. 14. The Impugned rule has not been shown by the petitioner to suffer from t4e vice of unreasonableness. The .counter-affidavit filed by the State on the o'..her hand discloses the purpose to be that of serving the interests of the residents of the State by providing medical aid for them.

The petitioner's argument that candidates whose parents have of necessity to remain out of Mysore State and who have also by compelling reasons to shift their residence frequently from one

State to another without completing ten years in any one State. would suffer because their parents cannot afford to arrange for their children's residence in Mysore State for ten years during the fust 17 years cif their age, merely suggests that there is a likeli

hood of some cases of hardship under the impugned rule.

But -cases of hardship are likely to arise in the working of almost any Tule which may be framed for selecting a limited number of can- <lidates for admission out of a long list.

This, however, would not render the rule unconstitutional. For relief against hardship in the working of a valid rule, the petitioner has to approach else where because it relates to the policy underlying the rule .. Redress for the grievance against the wide gap between the number of seats in the medical colleges and the number of candidates aspiring to become doctors for earning their own livelihood and for serving the needs of the country, is also to be sought elsewhere and not in this Court, which is only concerned with the costitutional!ty of the rule.

For the aforesaid reasons this petition fails and is dismissed but with.out costs.

IC. B. N.

Petition dismissed.

KUMARI N. V ASUNDARA

STATE OF MYSORE & ANR

M. SHELAT

I. D. DUA

V. BHARGAVA, JJ

Constitution of India

Art. 14

Art. 14

Art.

14

[1968] 2 S.C.R. 786

Art. 32

Constitution of India

Art. 32

Art. 14

Art. 14

Art. 14

Art. 14

[1970] 1 S. C.R. 413

(1968) 2 S.C.R. 786

[1968) 2 S.C.R. 786

article 63

article 15(1)

Art. 14

Art. 14


HUSSAIN BHAI AND OTHERS

COMMISSIONER OF INCOME TAX, MADRAS.

April 16, 1971

s rs. M. s1i;:R1, c. 1 .• G. K .. MrITER, K. s. HEGDE, A. N. GRovEil:

AND P. 1AGANMOHAN REDDY, 11.J

Income tax Act, (II of 1922), s. 34(1)(a) and lncome-ta'1: (Amendment) Act, 1959, s. 4--Effer:t on bar of limitation.

Notioe under s. 34(1) (a) of the Income-tax Act, 1922 was served in February 1957 on the appellant with respect to escaped income of Rs. 40,000 for the assessment year 1948-49. On appeal the Appellate Assistant Commissioner held that the proceedings were illegal. On July 9. 1958,. the Income-tax Officer issued another notice and assessed the assess.:e's income including therein the Rs. 40,000, to tax.

. When the matter came up before the High Court on reference, the High Court held that the notice dated July 9, 1958 was a fresh notice but that it was saved from the bar of limitation by s. 4 of the Income tax (Amendment) Act, 1959.

In appeal to this Court,

HELD: Section 4 of the 1959-Act refers to all notices issued under s. 34(1) la) of the 1922 Act at any time before the commencement of the

1959-Act. The notice dated July 9, 1958, in the present case, fell within that description. But s. 4 of the 1959-Acl. does not save such notices from attack on all grounds whatsoever; the only ground of attack which cannot be taken is that at the time the notice 'Nas issued. the period prescribed by s. 34(1) (a) of the 1922-Act, as in force before its amendment by the Finance Act, 1956, had expired. But in the present case, what the assessee was saying wa.s, that a notice under s. 34(1) (a) as amended by the Finance Act of 1956, could have been issued under that Act in respect of the assessment year 1948-49 till April l, 1957; but when the Finance Act "f 1956, came into force, he came to be governed by the 8 year period prescribed by

the Act as amended by the 1956 Act and not the 8 year period prescribed by the Act as it stood before the amendment in 1956. Accordingly the escaped income being less than a lakh, the assessee's ground of attack was that the 8 years prescribed by s. 34 as amended after 1956 had already expired before July 9, 1958. The assessee"s stand was correct, and the

notice was barred. (3958-F].

Observations of Sarkar, J. in S.C. Prashar v. Vasantani Dwan1kadas, [1964] I S.C.R. 29. 90, applied.

CIVIL APPELLATE JURISO!Cf!ON : Civil Appeal No. 1097 o( 1967.

Appeal from the judgment and order dated December I, 1965 of the Madras High Court in Tax Case No. 17S of 1963 (Reference; No. 49 of 1963).

T. A. Ramachandran, for the appellants.

Jagadish Swarup, Solicitor-General, S. Mitra, P. L. Juneja and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Sikri, C. 1~ This appeal by certificate granted by the Madras B High Court under Section 66A (2) of the Indian Income-tax Act.

1922, hereinafter referred to as the Act, is from the judgment of the Madras High Court in a reference made to it under Section 66 (I) of the Act by the Income-tax Appellate Tribunal, Madras Bench.

The Tribunal referred the following question .

"Whether the present proceedings initiated under Section 34(1) (a) of the Act against the assessees are valid in law?"

The relevant facts may now be stated.

For the assessment year 1948-49 (accounting year ending November 12, 1947) an assessment was made on Abdullabhai Fazalali in the status of an individual on September 30, 1948, on a total income of Rs. 9,102.

The soures of income consideted in the assessment were share income from the firm of S. A. Bhagat and Co., and property income.

Subsequently, it came to light that Abdullabhai Fazalali had deposited Rs. 40,000 in cash on July 28, 1947 in the branch of the Bank of India Ltd. at Palanpur, now in North Gujarat.

Abdullabhai Fazalali died on August I, 1954.

Notice under Seetion 34 (1) (a) of the Act was served on February 9. 1957 on Hussainbhai Abdullabhai as legal heir and representative of the estate of the late Abdullabhai Fazalali. On March 9, 1957 a return was filed showing the income as Rs. 8,237. but in Column 'D' the sum of Rs. 40,000 aforesaid was mentioned.

While the proceedings were pending under Section 23(2) of the Act a petition was filed in the High Court challenging the validity of the proceedings under Section 34(1)(a).

On March 15, 1957 assessment was made.

An appeal to the Appellate Assistant Commissioner under Section 30 of the Act was filed on April 15, 1957.

On March 15, 1958 the High Court dismissed the writ petition on the ground that the assessee had already availed himself of the ordinary remedies provided under the Act. It appears from the order of Appellate Assistant Commissioner dated April 29, 1958 that the High court expressed the view that the proceedings under Section 34 (!) (a) were illegal. The appellate Assistant Commissioner, by this order following the finding of the High Court regarding the illegality of the proceedings under Section 34

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

set aside the assessment on the ground that the proceedings intiated under Section 34 were illegal and not valid.

The Income Tax Officer then issued a fresh notice under Section 34 (1) (a) on July 9, 1958 to all the legal representatives of the deceased Abdullabhai Fazalali.

By his order dated December 14, 1960, the Income-tax Officer held that the cash deposit of Rs. 40,000 in the Bank of India in Palanpur came from undisclosed sources of income of the assessee in the then taxable territories and assessed it accordingly.

We may mention that no reference was made to the lncometax (Amendment) Act, 1959 (I of 1959) by him-

The assessee appealed to the Appellate Assistant Commissioner and inter alia contended that the assessment was time-barred.

The Appellate Assistant Commissioner held that the Appellate Assistant Commissioner's order passed in respect of the original proceedings under Section 34 did not conUlin any finding or direction within the meaning of Section 34 (3) and accordingly the assessment order dated December 14, 1960 was vitiated.

The Revenue then filed an appeal, before the Incomo-tax Appellate Tribunal.

The Appellate Tribunal set aside the order of the Appellate Assistant Commissioner holding that the proceedings under Section 34 (!) (a) had been properly initiated by the notices issued on July 9, 1958, and directed him to decide the other is.ucs raised according to law.

We may mention that on the point of limitation the only _point debated before the Appellate Tribunal was regarding the effect of the proviso to Section 34(3) of the Act.

The Appellate Tribunal came to the conclusion that the order of the Appellate Assistant Commissioner dismissing the original proceedings under Section 34 (!) (a) against Hussainbhai Abdullabhai, who legally represented the assessee, could be construed as giving a direction to the Incometax Officer to initiate fresh proceedings.

The High Court in the reference, however, came to the conclusion that the second proviso to Section 34 (3) would be inapplicable. The High Court observed :

"There was no direction or finding in the Order of the Appellate Assistant Commissioner dated April 24, 1958 as would attract that proviso._ A finding for the purpose of that proviso should be one on a point at issue ill the assessment proceedings or in the appeal".

It was contended before the High Court that a fresh notiL'C A served under Section 31 (4) (a) beyond eight years of the assessment order was barred by time.

The Revenue contended that Section 4 of the Income Tax (Amendment) Act, 1959 (I of 1959) saved a fresh notice from the bar of limitation.

The High Court held that Section 4 of Act I of 1959 saved the notice under Section 34 (1) (a) issued on July 9, 1958 from the bar of limitation, B .and accordingly answered the question against the assessee.

The short question before us is whether Section 4 of the Indian Income-tax (Amendment) Act, 1959 saves the fresh notice from the bar of limitation. But in order to fully deal with thl:

point it is necessary to set out the relevant portion of Section 34 (!) (a) as it existed at various times.

The relevant portion of Section 34 (I), as amended in 1948, :reads as follows :

34. (!). H

(a) The Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year . . . .

he may in cases falling under clause (a) at any time within eight years and in cases falling under clause (b) at any time within four years of the end of that year, serve on the assessee, or, ... a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22 . . . . "

The relevant portion of Section 34 (I) as amended by the Finance Act, 1'56 (Act XVIII <,>f 1956) reads thus :

"34. (!) If

(a) the Income-tax Officer has reason to believe that

by reason of the omission or failure on the part of an G assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year. . ..

he may in cases falling under clause (a) at any time H and in cases falling under clause (b) at any time within four years of the end of that year, serve on the assessee

394 SlJPRBMB COURT RBPORTS

[1971] SUPP. S.C.S..

11. • • . • • • a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22.

. F

Provided that the Income-tax Officer shall not issue a notice under clause (a) of sub-section (!)-.

(i) for any year prior to the year ending on the 31st day of March, 1941;

(ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income-tax which have escaped assessment . . . . . . .

amount to, or are likely to amount to, one lakh of rupees or more in the aggregate; either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending before the 31st day of March, 1941 ..

Section 34(4) of the Act as inserted by the Indian Incometax !Amendment) Act. 1959 reads as follows :

"(4) A notice under clause (a) of sub-section (1) may be issued at any time notwithstanding that at the time of the issue of the notice the period of eight years specified in that sub-section before its amendment by clause (a) of section 18 of the Finance Act, 1956 (18 of 1956) had expired in respect of the year to which the notice relates."

Section 4 of the Indian Income-tax (Amendment) Act, 1959 .. provided :

"4. Saving of notices, assessments, etc., in certain cases.-No notice issued under clause (a) of sub-section

(1) of section 34 of the principal Act at any time before the commencement of this Act and no assessment, re-asessment or settlement made or other proceedings taken in consequence of such notice shall be called in question in any court, tribunal or other authority merely on the ground that at the time the notice was issued or at the time the assessment or re-assessment was made, the time within which suohnotice should have been issued or the assessment or re-assessment should have been made under that section as in force before its amendment by clause (a) of section 18 of the Finance Act 1956 ([8 of 1956), had expired."

The learned counsel for the State quite rightly does not rely on Section 34 (4) of the Act to validate the notice because this contemplate a notice issued after the coming into force of the 1959 Act.

It seems to us that Section 4 of the Amending Act of 1959 does not save the notice under Section 34 (1) (a) issued on July 9, 1958.

In this case we are concerned with an income less than l lac mentioned in Section 34 as amended by Finance, Act, 1956.

It is no doubt true, as urged by the learned counsel for the Revenue, that the first sentence of Section 4 includes all notices issued under Clause (a) of sub-section (1) of Section 34 of the Act at any time before the commencement of the 1959 Act and the notice dated I uly 9, 1958 falls within this description.

But in our view the section does not save such notices from attack on all grounds whatsoever ; the only ground which cannot be taken to attack the validity of the notice is that at the time the notice was issued the period prescribed under Section 34 (I) (a), as in force before its amendment by Section 18 of the Finance Act, 1956, had expired.

Is the assessee then raising this ground ? It seems to us that he is not.

What he is saying is that a notice under Section 34 (!) (a), as amended by the Finance Act of 1956, could have been issued under that Act in respect of the assessment year 1948-49 till April I, 1957, and when the Finance Act of 1956 came into force he came to be governed by the 8 year period prescribed by

the Act as amended by the 1956 Act and not the 8 year period pre>cribed by the Act as it existed before the amendments made in 1956.

Accordingly the assessee's ground of attack .is that the 8 years prescribed by Section 34 as amended after 1956 have exrired and not that 8 years prescribed by Section 34 before il• amendment by Finance Act, 1956 have expired.

In our view the stud taken by the assessee is correct.

We are supported in the view we have taken by certain observation of Sarkar, J., as be then was, in S. C. Prashar, I. T. C. v.

JI as1111tsen Dwarkadas ('). The Court in that case was not concerned with assessment years in respect of which a notice could be issued under Section 34 (1) (a) of the Act as amended by the Finance Act of 1956, but the present case was visualised by

Sarkar. J., in that case.

He observed :

"So though Section 4 of the 1959 Act freed a notice from the bar of limitation in respect of it imposed by the 1948 amendment, it did not altogether do away with all prescriptions of time. In spite of Section 4, a notice contemplated by it would be subject to the prescription of

(1) [1964] IS. C.R. 29, 90.

SUPRBME COURT REPORTS

(1971) SUPP. S.C.R.

lime as to its issue under the 1939 Act and may be, under Section 34 as it stood before the 1939 amendment. If the notice was issued after the 1956 amendment it would also be subject to the prescription as to time provided by that amendmelll. (emphasis supplied.).

Then it was said that if Section 4 applied to a notice issued more than eight years after the year in which the income escaped assessment bu\ before the 1956 amendment came into force in a case where the escaped income of the year was less than Rs. 1,00,000 the position would be curious. A notice issued in a similar case after the 1956 amendment would be bad under Section 34 as it then stood and Section 4 could not save it for it saved notices only from the effect of the 1948 amendment. The position then would be that in a case involving the same amount of escaped income for the same year, a notice issued before 1956 amendment and invalid under the 1948 amendment would be validated and a more recent notice equally invalid under both the earlier and present laws would remain invalid. Assume that the position is somewhat curious or incongruous. But that seems to me to be the result of the words used.

For all we know that might have been intended. However strange, if at all, the result may be, I do not think the Courts can alter the plain meaning of the language of the statute only on the ground of incongruity if there is nothing in the words which would justify the alteration.

As I have said earlier, in this case there is nothing to justify the alteralion of the plain meaning."

We agree with the ebservations of the learned Judge.

But, as we have said, this Court was not concerned with a case governed by period of limitation as prescribed in 1956 and acoordingly we do not find it necessary to refer to the reasoning of the other learned Judges.

Accordingly we set aside the judgment of the High Court and answer the question in favour of the assessee, with costs through out.

V. P. S.

Appeal alluwe4l.

HUSSAIN BHAI AND OTHERS

COMMISSIONER OF INCOME TAX, MADRAS

K. s. HEGDE

P. 1AGANMOHAN REDDY

s. 34(1)(a)

s. 4

s. 34(1)

Income-tax Act, 1922

s. 4

Section 4

s. 34(1)

s. 4

s. 34(1)

Finance Act, 1956

s. 34(1)

s. 34

Section 66A

Income-tax Act

Section 66

Section 34(1)

Section 23(2)

Section 34(1)(a)

Section 30

Section 34

Section 34

Section 34

Section 34

Section 34

Section 34

Section 34

Section 34(3)

Section 34

Section 34

Section 31

Section 4

Section 4

Section 34

Section 4

Section 34

Section 34

section 22

Section 22

Section 34

section 22

section 22

Section 34(4)

section 18

Finance Act, 1956

Section 4

section 34

section 18

Finance Act 1956

Section 34

Section 4

Section 34

Section 34

Section 4

Section 34

Section 34

Section 18

Finance Act, 1956

Section 34

Section 34

Section 34

Finance Act, 1956

Section 34

Section 4

Section 4

Section 34

Section 4

Section 34

Section 4


FIRM OF HARBANSLAL JAGMOHANDAS & ANR.

PRABHUDAS smvLAL

April 16. 1971

(C. A. VAIDIALINGAM AND A. N. RAY, JJ.J

Practice and Proced11re-Application for special leave to this Court-- A verment giving inipression that attention of High Court was drawn to the conflicting decision of another High Court, when in fact it 'tt'O.\' not so drawn-c; rant of llave-lf may b~ revoked on the gro1111d that this Court was mi.~/ed.

The respondent who was the landlord of certain premises in Surat, filed a suit for the eviction of the petitioners, who were the tenants, on the ground of non payment of rent. The petitioners filed a written statcn1ent in which they raised a dispute regarding the standard rent. and also con

tended that they had raised such a djspute within the time allowed by law. that is, one month of service of the suit notice. The trial court a~ well as thr appellate court found that a dispute regarding standard rent wcu; not rilised within one month of service of the suit notice and held. following a decision of the Gujarat High Court, that the respondent was entitled to recover posession under s. 12(3)(a) of the Bombay Rents. Hotel and Lodging House Rates (Control) Act, 1947. The High Court of Gujarat also rejected the petitioners' revision petition. Thereupon, the petitioners filed an application in this Court. for special leave. contending that the High Court of Bombay had held that it was sufficient if the dispute regard ing standard rent was raised in the written staten1ent, and that, in such a ca.6r eviction could not be ordered under s. 12(3) (a); and since there was a direct conflict between the High Courts of Gujarat and Bombay an important question of law relating to the scope and applicability of s.. t~(J)

(a) arose. This Court granted special leave and stay.

The respondent filed an application for revocation of the grant of special leave on the ground that the averments in the special leave petition gave the impression that the attention of the Gujarat High Court was dra9.'D to the decision of the Bombay High Court, while in fact. it was not so. and that therefore the petitioners had misled this Court.

HELD: Assuming that the grounds in the special leave applicatil)O gave the impression that the attention of Gujarat High Court was drawn to the decision of the Bombay High Court, it could not be stated that there was any mis-statement or untrue averment in the grounds. The contetinn rai!lled was a legal contention. and there was no other manner in which a pany could draw the attention of this Court to the conflict het\\'en the two High Courts. [405E-G].

It is but proper that if a party wants to have a particular legal position settled io a High Court, reconsidered on the basis of a different view taken by another High Court, he should draw the attention of the High Court, \\'h"n the quetion is raised. to the conflicting decisions. Even if he has or1itted to do so it cannot be said that when the correctness of the judgment so given, is concerned before this Court he should not be allowed. to challenge the decision on the ground that another High Court has takell

a different view. Such a ground on a legal point should not be confused

398 SUPREME COURT llBPO!lTS [1971] SUPP. s.c.R.

or mixed up with averments regarding material facts or matters of impoi .. lance. [405G-H; 406A-C].

The statements in the special leave petition could not be considered to be untrue or false on material facts or matters of importance, and therefore, the prayer for revoking the special leave would have to be

tejected. [4060].

CIVIL APPELLATE JUIUSDICTION : Civil Misc. Petition Nus. 854 and 2282 of 1971.

Applications for stay and for amendment of the prayer in C. M. P. No. 854 of 1971.

Civil Appeal No. 282 of 1971. c Appeal by special leave from the judgment and order dated December 22, 1970 of the Gujarat High Court in Civil Revision Application No. 1353 of 1970.

S. T. Desai, S. V. Tambwekar for S. K. Dholakia, for the petitioners and appellants.

D I. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

Vaidialingam, J.-The petitioners in both these applications have taken on lease the ground fioor portion of property in Ward No. V. Nondh No. 1088 of Surat.

The respondent became the owner of the said property by purchasing it from the previous owner by a registered sale deed dated September 18, 1958.

The petitioners who were the tenants of the premises even prior to the date of purchase by the respondent, have continued to be his tenants and they are using the premises for their business pur- .poses.

The respondent landlord filed on February 12, 1967 a civil suit No. 144 of 1967 in the court of the Third Joint Civil Judge, Junior Division, Surat for evicting the petitioners.

According to the landlord the petitioners had not paid the rent for a period of over six months and had also not complied with the notice issued under Section 12 of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (Act 57 of 1947) (hereinafter called the Bombay Rent Act). The respondent bad alleged that he had terminated the tenancy of the petitioners by notice dated November 24, 1966.

The respondent sought eviction of the petitioners on two grounds namely, (!) default in payment of rent, and (2) premises being required for bonafide personal lllC and occupation.

The petitioners contested the suit on various grounds and denied that they were in arrears and pleaded that they bad raised a dispute in respect of the standard rent within the time allowed

FIRM ff, J. v. SfflVLAL (Vaidialingam, J.) 399

~Y law.

They also contended that the landlord's requirements for use of occupation was not bonafide.

Both the trial court as well u the Appellate Court, the Extra Assistant Judge, Surat, have concurrently rejected the plea of the respondent that he required the premises bonafide for personal use.

Both the courts held that the petitioners have not raised any dispute about the standard rent within one month of service of suit notice either by prefering a standard rent application or by sending a reply to the suit notice raising such a dispute.

On t1$ basis both the courts held that the respondent-plaintilf is entitled to recover possessio11 of the premises on the ground of non payment of rent under Section 12

(3) (a) of the Bombay Rent Act and accordingly passed an order directing ewction of the petitiioners from Che suit pi'emises.

The petitioners filed Civil Revision Application No. 1353 of 1970 before the Gujarat High Court challenging the decison of the two subordinate courts ordering their eviction. The High Court summarily rejected the said application by its order dated December 22, 1970.

The petitioners filed Special Leave Petition No. 342 of 1971 seeking special leave to appeal against the decision of the Gujarat High Court.

In the special leave petition it has been stated that the appeal raises important questions of law relating to the scope and applicability of Section 12 (33) (a) of the Bombay Rent A.ct. which applies in all material particulars to both the States of Maharashtra and Gujarat.

It has been further stated that there is a direct conflict regarding the interpretation of this section between the Full Bench of the Bombay High Court and the Gujarat High Court.

According to the petitioners, the >lombay High Court has held that the matter will not fall under Section 12 (3) (a) even in those cases where a dispute in respect of standard rent has been raised in the written statement, whereas the Gujarat High Court has held to the contrary and, therefore, there is a direct conflict between the two High Courts on this point.

Along with the special leave petition the petitioners have filed C. M. P. No. 854 of 1971 praying for the stay of operation of the order of the Gujarat High Court in Civil Revision Application No. 1353 of

1970.

In view of the conflict between the Bombay and Gujarat High Courts regarding the interpretation of the above section, this Court granted special leave by its order dated February IS, 1971.

This Court further granted exparte stay pending disposal of the notice of motion, which was made returnable within three weeks.

The respondent entered appearance and filed his count~ aflidavit in C. M. P. No. 854 of 1971.

In the counter-affidaVlt the respondent has made. two prayers, namely. (I) to revoke the

400 SUPREME COURT REPOR'lll [1971] SUPP. s.c.R.

special leave granted to the petitioners and (2) to dissolve the order of stay granted exparte.

In order to clarify the prayers made in C. M. P. No. 854 of 1971, the petitioners have filed C. M. P. No. ' 2282 of 1971 requesting permission to amend their original application C. M. P. No. 854 of 1971 by stating that the relief asked for is for, stay of eviction of the petitioners from the suit premises and to gran't stay of operation of the judgments of the trial court as well as of the Appellate Court. Reading the two applications it is clear that too petitioners seek relief from dispossession pending the disposal of the appeal by this Court.

We will deal with the prayers for grant of stay of dispossession after disposal of the plea raised by the respondent that the special leave granted by this Court should be revoked.

The grounds on which the respondent requests for cancellation of special leave are that the petitioners have completely misled this Court in regard to the true facts of the case and that they are guilty of suppressio veri or suggestitJ /al~ ..

The bone of contention in this regard as pointed out by Mr.

I. N. Shroff, learned counsef for the respondent is that the Full Bench decision of the Bombay High Court, which is stated to be in direct contlict with the decision of the Gujarat High Court has never been placed before the Gujarat High Court when it dismissed. in limine C. R. P. No. 1353 of 1970.

Mr. S. T. Desai, learned counsel for the petitioners, pointed out by reference to the special leave petition that there bas been no attempt by his clients to mislead this Court and he further urged that all the facts have been stated correctly. He admitted that it has been mentioned in the special leave petition that there is a direct contlict between the Bombay and Gujarat High Courts in the matter of interpretation of Section 12 (3) (a) of the Bombay Rent Act.

This plea, being a legal contention was available to the petitioners and they were perfectly justified in placing before this Court the contlict so that it may be resolved one way or the other.

The statement regarding the contlict made in the special leave petition is also true.

At the outset we may clear the ground by stating that Mr.

S. T. Desai, learned counsel for the petitioners, desired us to proceed on the basis that there is nothing on record to show that the Full Bench decision of th~ Bombay High Court was placed before the Gujarat High Court when C. R. P. No. 1353 of 1970 was being heard.

We will now refer to the statements made in the special leav~ petition, which are relevant for the purpose of deciding whether there has been any untrue statement made by the petitioners. Jn.

FIRM H. ], v. SHJYLAJ. (Y, aldialing<nn. J.)

paragraph 2, it is stated that the special leave petition raises important question of law relatipg to the scope and applicability of Section 12 (3) (a) of the Bombay Rent Act, which applies in all malerial particulars to both the States of Maharashtra and Gujarat and that there is a direct conflict between the Full Bench of the Bombay High Court and the Gujarat High Court. It is further stated that the Bombay High Court has held that a matter will not fall in Section 12 (3 (a) not only in those cases for which a dispute in respect of standard rent has been raised within one month of the service of notice but also in those cases in which a dispute in respect of standard. rent is raised in written statement filed in reply to the plaint of the landlord.

In paragraph 2 it is further stated :

"This important decision given by the Full Bench of the Bombay High Court, it is respectfully submitted, is in direct conflict with the authorities of the Gujarat High .

Court, and the present decision of the Gujarat High Court from which this special leave is being filed has also proceeded on the basis which is in direct conflict with the judgment of the Bombay High Court. This is because the petitioners who are the tenants had in any event and accepting all findings of fact of the Courts below, raised a dispute regarding standard rent in the written statement and therefore on the ratio of the Bombay High Court judgment the petitioners cannot be ordered to be evicted from the premises."

Paragraphs 4 to 13 give the facts and circumstances leading to the filing of the petition for special leave.

In those paragraphs facts relating to the tenancy, the notices that passed between the parties, as well as the findings of the two subordinate courts and the dismissal by the High Court of C. R. P. No. 1353 of 1970 are stated.

Paragraph 14 enumerates the various grounds wh.ich, according to the petitioners, will enable them to obtain special leave.

Grounds which according to the respondent, amount to statements of facts and which are not true are Nos. 2, 3 and 16. They are as follows :

"II. That the High Court ought to have examined the aspect as to whether in view of the judgment of the Full Bench of the Bombay High Court in Special Civil Application No: 718 of 1968 decided on 17th August, 1970, a case is made out as to whether Section 12 (3) (a) of the aforesaid Act applied when a dispute about standard rent is raised at the time of. written statement.

26-1 S.C. lndia/71

SVPllF.llB COURT REPOR'Ill (1971] SVPP. s.c.R.

III. That the High Court ought to have considered the reasons on the basis of which the judgment of the Full Bench of the Bombay High Court was delivered, particularly in view of the fact that there was a clear confiict between the judgments of the High Court of Bombay and the High Court of Gujarat on the question of the scope and applicabiility of section 12 (3) (a) of the aforesaid Act

XVI. It is respectfully submitted that the , petition involves substantial questions of law of public importance and the decision on which would affect a large number of pending cases both in the Maharashtra and Gujarat Courts which deal with identical section 12 (3) (a) of the aforesaid Act.

In view of the direct conflict between the Bombay and Gujarat High Courts it is respectfully submitted that it is a fit case for this Hon'ble Court, or otherwise the same scetion would be interpreted by both the courts in contradictory manner. In fact if the petitioners had b, een in Mahar<M>htra then he would have succeeded in view of the Full Bench judgment of the Bombay which squarely applies to the facts of this case, even accepting all findings of fact against the petitioners.

A true copy of the Bombay Higb Court Full Bench judgment is annexed hereto as Annexure B and a true copy of the judgment of the lower appellate court is annexed hereto to as Annexure C."

The true copy of de Full Bench judgment of the Bombay High Court, referred to in ground No. XVI is the one in Special Civil Application No. 781 of 1968 decided on August 17, 1970.

In the counter-affidavit filed by the respondent in C. M. P. No. 854 of 1971 in paragraph S, after referring to the fact that the petitioners are making a grievance about the summary dismissal of the C. R. P. No. 13~;3 of 1970 by the Gujarat High Court on the ground that' the said decision is in conflict with the Full Bench decision of the Bombay High Court, referred to above, it is stat ed:

"The enquiries made by me show that the Petitioners had not produced bc:fore the Gujarat High Court a Certifl. ed or even an Ordinary copy of the said Full Bench Jud~ ment of the Bombay Hjgh Court nor had the petitioners at the admission st1ge of the Petitioners' Civil Revision Petition before the Gujarat High Court cited or referred to the said Full Bench decision.

If the information received by me is o>rrect and I believe it to be correct, it is wholly improper for the Petitioners to approach this

FIRM H. J, J, SHIVLAL (Yaidiall11gam, J.) 403

Hon'ble Court and to contend that the Gujarat High A Court is in error in not examining and following the Full Bench decision of the Bombay High Court."

In Paragraphs 8 and 9 it is stated :

"8. The conduct of the Petitioners would further appear to be improper because they do not appear to have taken up this point in their Civil Revision Petition No. 1353 of 1970 filed by them in the Gujarat High Court.

9. It, therefore, appears that the Petitioners have completely misled this Hon'ble Court in regard to the true facts and have thereby obtained from this Hon'ble Court Special Leave to Appeal, which, in all probability, this Hon'ble Court would not have been pleased to grant had the Petitioners placed before this Hon'ble Court true facts of the case."

Therefore, it will be seen from the material averments of the respondent that his bone of contention regarding the statements of fact by the petitioners is that the statements contained in the relevant paragraphs of the special leave petition, adverted to earlier, give the impression that the Full Bench decision of the Bombay High Court was placed before the Single Judge of the Gujarat High Court when C. R. P. No. 1353 of 1970 was being disposed of.

That thesaid judgment was not brought to the notice of the High Court is clear from the fact that no grounds were taken in the Civil Revision Petition regarding any conllict between the Gujarat and the Bombay High Courts on identical provisions of the statute.

The petitioners have in their rejoinder affidavit controverted the allegation that they have, in any manner misled the Court.

They have, on the other hand, stated that the conllict between the two High Courts has been stated in the special leave petition, which is a fact and it was mainly on that basis that the special leave was asked for and granted by this Court.

They have further stat ed that there has been no suppression of many material facts or

mis-statement of facts which misled the Court in granting the special leave.

Mr. I. N. Shroff has referred us to the decisions of this Court wherein it has been held that when there has been an untrue stall> ment of a matter of importance or when there has been a misstatement as to valuation so as to mislead the Count to exercise its

dilcretion in a party's favour or when a false statement has been made on material facts, this Court had revoked the special leave already granted.

S_UPREME COURT REPORTS

(1971) SUPP. s.c.R.

There can be no controversy that if the petitioners have made an untrue averment ie1arding material statements or false state-· ment of matters of importance or a deliberate untrue statement of material facts so as to mislead this Court or if there has been any suppression on any poi:nt of importance, the special leave granted by this Court will have to be revoked.

But the question is whether in the circumstances of ithe case the petitioners have made any such mis-statement or untrue. statement of matters of importance.

In S. R. Shetty v. Phirozeshah Nusserwanji Golabawalla and another

(') special leave was revoked on the ground that the valuation had been deliberately inflated by the parties with a view to getting over the preliminary hurdle regarding valuation.

In Hari Narain v.

Badri Das (1), it was observed by this Court :

"It is of utmost importance that in making material statements and se~:ing forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and mis-leading.

That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked."

In Rajabhai Abdul Rehman MW1shi v. Vasudev Dhan; ibhai Mody (') this Court after referring to the previous decision, cited above. observed as follows :

"Exercise of the jurisdiction of the Court under Art. 136 of the Constitution is discretionary : it is exercised sparingly and in eceptional cases, when a substantial question of law falls to be determined or where it appears to the Court that interference by this Court is necessary to remedy serious injustice.

A party who approaches this Court invoking: the exercise of this overriding discretion of the Court must come with clean bands. .If there appears on his part any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of t.he discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal."

(0 C.A.No. 155of1963 decided on S-4·1963. (2) [1964] 2 S. C.R. 203.

(3) [1964) 3 S. C. R. 480.

PIRM H. j, •• SH!VLAL (llu{dialingam, J.)

In Sita Bai (dead) by her legal representative and another v.

Sonu V anji W ani and others (i) this Court revoked special leave on the ground that on matter of importance the appellants therein had made untrue statements before this Court.

Recently in Shankar Mtidhoji Nemade v. Chisuji ]anaji Bhadke and others (') this Court reiterated the principles laid down in the above decisions.

But on facts it was held that there has been no untrue or false averment regarding material facts.

Having due regard to the principles laid down above and applying them to the case on hand, we are of the opinion that the request of the respondent for revoking special leave granted has to be rejected.

We are also satisfied that there bas been no false or untrue averment on material facts made by the petitioners for the purpose of misleading this Court.

Paragraph No. 2 of the special leave petition refers to the conflict between the Gujarat and Bombay High Courts with regard to the scope and apr!icability of Section 12 (3) (a) of the Bombay Rent Act.

The contrary view taken by the Gujarat High Court is the one reported in Chuni/al Shii/kJ/ v. Chimanlal Nagindas ('), which has been followed by the two subordinate courts.

No doubt the High Court bas summarily rejected the Civil Revision Petition. Therefore, what is stated in paragraph No. 2 is a pure statement of the legal position and factually it is correct. We have also referred to the grounds Nos. 2, 3 and 16 which are purely legal contentions.

The contention of Mr. Shroff, learned counsel for respondent is that a reading of these grounds gives the impression that the attention of the Gujarat High Court was drawn to the Full Bench decision of the Bombay High Court when the Civil Revision Petition was disposed of.

Assuming it is so, in our opinion, it cannot be stated that there is any mis-statement or untrue averment contained in these grounds.

It must be remembered that they are legal contentions taken in the grounds attacking the judg ment of the Gujarat High Court.

We fail to see in what other manner a party can draw the attention of this Court to a conflict between two High Courts with regard to the interpretation of a substantially similar provision of a statute. It is needless to state that if a party wants to have a particular legal position settled in a High Court, reconsidered on the basis of a different decision on identical point by another High Court and specially with regard to the same statute, he must draw the attention of the learned Judge to that decision bearing on the point in question. This will be a very proper thing for a party to do.

But that is far from saying

(I) C. A. No. 982of1965 decided on 25-4-1968.

(2) C. A. No. SS of 1967 decided on 8-9-1970.

(3) 7 C. L. R. 945.

406.

SUPRllMB COURT REPORTS f/911] SUPP. s.c.a

that if he has omitted t•> place a particular decision of another High Court on an identical matter, but nevertheless when the judgment so given is before a. higher Tribunal, he should not be allowed to challenge the decision on the ground that the other High Courts have taken a difforent view.

For instance, if a matter is disposed of by a Division Bench of the same High Court and a similar matter is disposi:d of by a Single Judge on the next day without being made awa.re of the decision of the Division Bench in our opinion, it will be: perfectly open to the party aggrieved by the judgment of the Single Judge, when filing an appeal against that judggment to urge that it is contrary to the Division Bench decision of the same court. though that judgment was not brought to the notice of the Single Judge.

The grounds taken on legal points should not, in our opinion, be confused or mixed up with the averments regarding material facts or matters of importance.

We are of the opi11ion that none of the statements in the special leave petition relied on by Mr. Shroff can be considered to be untrue or false statements on material facts or matters of impor lance.

Therefore, the prayer of the respondent for revoking the special leave granted will have to be rejected. The C. M. Ps.

Nos. 2282 of 1971 is allowed and the prayer in C. M. P. No. 854 of 1961 will stand suitably amended.

Regarding the stay application, it is ordered that there will be a stay of dispossession of the petitioners from the premises pend ing disposal of the app1l3l by this Court provided, (!) the petitioners deposit in the trial court within one month from today the entire arrears of rent ; and (2) the petitioners deposit in the trial court rent for every month on or before the I 0th of the succeed ing month.

The respondent will be at liberty to withdraw the rents so deposited unconditionally and without prejudice to his contentions in the appc:l. If the petitioners fail to deposit the arrears or COil!mit two consecutive. defaults in depositing the monthly rent, the stay granted will stand vacated and the respondent will be entitled to take delivery of the properties. It is also recorded that Mr. S. T. Desai, learned counsel for the petitioners, has undertaken on behalf of the firm and its partners ihat they will deliver possession of the premises within three months from the date of judgment in th.e appeal, in case the appeal is dismissed.

There will be no order as to costs.

V.P.S.

Appeal dismissed.

FIRM OF HARBANSLAL JAGMOHANDAS & ANR

A. N. RAY, JJ

s. 12(3)(a)

s. 12(3)

Section 12

Section 12

Section 12

Section 12

Section 12

Section 12

Section 12

Section 12

section 12

section 12

Art. 136

[1964] 2 S. C.R. 203

[1964) 3 S. C. R. 480

Section 12


STATE OF MADRY.<\ PRADESH

11.

SHIV KUNWARBAI ETC.

April 20, 1971.

[S. M. SIKRI, C. J., G. K. MiTrER, K. S. HEGDE, A. N. GROVB!I.

AND P. JAGANMOHAN REDDY, JJ.]

Madhya Pradsh Government Premises (Eviction) Act, 1952, JJ. 3 and 4-Eviction can be only from Governmenr premises-Former ruler oJ Indian State claiming certain properties to be hi• private property-Acceptance of hi~ claim in respect of some of these propertieJ does not mean that the properties in respect of which the claim ha.t not been accepttd become property of Government.

The ruler of the erstwhile State of Jhabua granted jagirs to N and R.

The Jagirs were forfeited in 1943.

On March 30, 1948 tho Ruler mado sn order purporting to declare a large number of immovable properties, including certain houses in the occupation of N and R as his private properties. On April 1, 1948 the Ruler made another order purporting to grant to N and R the right to continue to occupy the said houses during their life time without any right to sell, mortgage or create any charge thereon. On June 29, 1948 the State of Jhabua merged in the State of Madhya Bharat.

The Government of the State of Madhya Bharat did not recognise the claim of the erstwhile Ruler of Jhabua to all the properties claimed by him as his private properties. The properties in the occupation of N and R were among those not recognised as the Ruler's private property. The possession of N on the Properties in her occupation was not disturbed in her lifetime. On April 30, 1962 the Executive Engi neer District Dhar, submitted an application under s. 3 read with s. 4 of the Madhya Pradesh Government Premises (Eviction) Act, 1952 for the eviction of R and the successorin interest of N from the properties res pecfjveiy occupied by them. Orders of eviction made by the SubDivisional Officer were upheld by the Collector in the appeals filed before him. The High Court however allowed tho writ petitions filed by N's successors-in interest and by R and quashed the orders of eviction against them. The State of Madhya Praesh appealed.

HELD: The appeal must be dismissed

The evidence showed that some only of the properties set forth in the declaration of April, I, 1948 and claimed by the Ruler as private property "were accepted as such" by tho Government of Madhya Bharat: there was no finding with regard to the others that they appertained to G the Ruler as distinct from his private properties. In order to succeed tho appellant had to show that the properties had been confiscated by tho Ex

ruler and bad ceased to belona to N aild R. [4101!-GJ.

As the properties originally belonaed to N and R there mnst be some

idence of the displacement of their title before the Eviction Act could be made applicable to them. The order of April 1, 1948 passed by the Ruler could not be interpreted as an order of conliscation. It wu not H proved that tho ownership of the properties bad passed to the Ruler and thereafter fint to tho State of Madhya Bharat and then to tho State of

Madhya Pratlelb. [4.lOO,.JQ.

SUPREME COURT RBPORTS [1971] SUPP. s.c.R.

.l In order to enable Go•,.rol!ieilt to take ptoceedings successfully under either s. 3 or 4 of the Act, it must satisfy the Court that the premises iD respect whereof action was taken was Government premises. As the State failed to establish thlS fliet. thCS question of eviction under the Act could never arise. [411B].

CML APPELLATE JURISDICTION : Civil Appeals Nos. 1164 Ji and 1165 of 1967.

Appeals from the judgment and order dated December l, 1965 of the Madhya Pradesh. High Court, Indore Bench in Misc. Petition Nos. 18 and 19 of 1%4. ·

M. S. K. Sastri, M. N. Shroff for I. N. Shroff, for the appel- C !ant (in both the appeali.).

B. R. L. Iyengar, R. A. Gupta and K. B. Rohatgi, for the respondent (in C. As. No. 1164 of 1967).

P. C. Bhartari, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondent (in C. A. No. 1165 of 1967).

The 1 udgment of the Court was delivered by Mitter, J~ The St1te of Madhya Pradesh has come up in appeal to this Court from two orders of the State High Court allowing two writ petitions filed by the two respondents herein for quashing the orders of eviction made against them under Section 3 of the Madhya Pradesh Govemmen Premises (Eviction) Act.

The facts in Civil Appeal No. 1164 of 1967 are as follows.

Many years back, a former Ruler of the Indian State of Jhabua in Central India had given a jagir to his mistress, Paswanji Smt.

Navratanbai.

Navratanbai had either purchased or constructed two houses on Collegi: Marg.

According to the Writ Petition filed in the High Court the acquisition was out of her private funds.

This was not however admitted in the return to the petition. The successor of the forme:r Ruler Dilipsingh purported to forfeit the jagir in the year 1943 The order of forfeiture is not on record but is sought to be heme out by an order dated !st April, 1948, evidently made in anticipation of the merger of the State in the Union of Madhya harat which took place on June 29, 1948. The order addressed to Paswanji Navratanbai ran :

"In September 1943 your jagir was confiscated to the State and you were granted Rs. I 00 per month by way of allowance vide Parwana No. 1735 dated 23-9-1943 and this amount was being paid to you on behalf of the Huzur from the civil list because such types of 11llowances etc. are paid from it. But now as new arrangements arc being

ll. p, STA11 v. KUNWARBAI (Mitfer, J.) 409

made regarding Ilic states of Malwa: arid tliere is li'.keli- A hood of reduction in the percentage of the civil list, therefore, the aforesaid montJily allowance shall henceforth be paid to you every month from State Treasury from generation to generation.

You may reside i'n the two big houses of Khasgi dur- B ing your lifetime in which you are residing at present.

After your lifetime both these houses shall be taken in possession of the Huzur. You shall have no right to sell or mortgage or create any charge on these houses."

There is another Huzur order on record dated 30th March, 1948

purporting to declare a large number of imll!ovable properties as C 1hc private property of the Ruler and the rulmg family.

Among the properties set out at the foot of the order are mentioned : "6. (e) All houses which are occupied by Bapu Ram singh.

(f) All houses which are in the occupancy of Navra- D' tanbai".

When the question of settling the list of private properties of the Rulers of the integrating Estates in Madhya Bharat came up before the Government of India. the Political and External Department of the Madhya Bharat Secretariat passed an order recording a E decision regarding the settlement of private properties of the State of Jhabua. The memorandum dated July 25, 1949 of the Madhya Bharat Secretariat, Political and External Department, shows that each department concerned had to take action for handing over all the property to the Ruler concerned and to see that no property out of the properties belonging to the Ruler and/ or the State before the formation of Madhya Bharat was left with the Ruler F excepting the properties in the enclosed list. The relevant list for the Ruler of Jhabua did not include the properties occupied either by Hapu Ramsingh or Paswanji Navratanbai.

Paswanji Navratanbai protested against the inclusion of her houses in the list of private properties made out by the Ruler of Jhabua and addressed a memorandum to the Raj Pramukh of Madhya Bharat Union for G .amendment of the inventory submitted by the said Ruler: No steps cappear to have been taken to evict Navratanbai from the said premises in her lifetime.

On 30th April 1962 the Executive Engi ncer District Dhar, submitted an application under Section 3 read with Section 4 of the Madhya Pradesh Government Premises !Eviction) Act, 1952 for eviction of the respondents in Appeal No. ti 1164 of 1967 from the two propertle4 formerly. belong~ to Navnitanbai before the Sub Divisional Offieer, .Ttia'bwi, eonstitufed the competent authority under the Act.

An order of eviction made

SUPRBMI! COURT REPORTS [1971] SUPP. s.c.ll.

by the Sub Divisional Olli1; er was upheld in appeal to the Collector.

Shivkunwarbai, widow of late Bapu Gordhansinghji, son of Navratanbai filed a writ petition in the High Court for quashing the said order. Appeal No. ll64/ 1967 is from the said order.

The facts in the other appeal i.e. 1165 of 1967 are similar to the facts just narrated.

In this case the same former Ruler had granted a jagir to his so:n Ramsingh by his mistress Paswanji Bhagirathibai.

The succeeding Ruler purported to forfeit the jagir and granted a monthly allowance of RS. 100.

An order similar to the one dated 30th March 1948 already mentioned was passed while the order of April l, 1948 affected Ramsingh as it

id Navratanbai in the other case.

There was an order of eviction as in the other case followed by a writ petition to the High Court.

The central question in these two appeals is, whether the State of Madhya Bharat ever became entitled to these properties in the facts and circumstances mentioned which justified its attempt to evict the respondents under the provisions of the Act of 1952. This would depend on the finding as to whether these properties were taken over by the Union of Madhya Bharat following the merger of the State of Jhabua therein in 1949.

The fact that some only of the properties set forth in the declaration of 1st April 1948 and claimed by the Ruler as private property "were accepted as such" by the Government of Madhya Bharat does not lead to the inference that all the other items of property in the said declaration were taken over by an Act of State. There must be some positive evidence of such Act.

It is also possible that the list had wrongly included properties belonging to citizens of the State of Jhabua about which there was no adjudication.

The records only show that out of the list of properties submitted by the Ruler, a certain number of them was tre11ted by the Government of India as being his private properties.

There was no finding with regard to the others that they appertained to the Ruler as distinct from his private property.

As these proptrties originally belonged to the predecessors-in-interest of the respondent i.e. in C. A. 1166/1967 and the respondent in C. A. 1165/1967 there must be some evidence of displacement of their title before the Eviction Act could be made applicable to them.

In order to succeed in the appeals the appel- Jan t must first establish that the properties had been confiscated by the Ex-Ruler and had ceased to belong to Navratanbai or Bapu Ramsingh.

The order of April l, 1948 records the confiscation of the jagirs and does not record that the houses in the possession of Navratanbai were similarly confiscated, assuming that confiscation was possible by a mere order of this type.

On the other hand, the order shows that Bai Navratanbai was to have full use of the houses for her lifetime but she was not to sell or mortgage the

14. p, STATE' ICUNWAl!.BAI (Mitter, /.)

same.

The declaration that after her lifetime the property would be taken possession of by the Huzur does not amount to an order of confiscation and a re-grant thereof for the donee's lifetime. If the properties remained the property of Navratanbai after the passing of the said order of 1948 nothing was done thereafter to show that she lost her interest in the properties or that the same passed to the Union of Madhya Bharat and from the said Union to the State of Madhya Pradesh. When attempts are made to deprive a person of his lawful inheritanee it must be shown by irreprochable evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking to eject the former lawful possessor. There is no such evidence in this case.

It follows that the properties, the subject matter of the two appeals. never became the properties of the Ruler of Jhabua ownership whereof passed to the Union of Madhya Bharat and from the Union to the State of Madhya Pradesh.

Section 3 of the Madhya Pradesh Premises \Eviction) Act, 1952 enables the competent authority under the Act to order inter alia that the person in unauhorised, occul\llt'ion of any Governmll!lt premises to vacate the same within 30 days of the date of the service of the notice in terms of the section.

Section 4 empowers the competent authority to assess damages on the ground of use and occupation by any person in unauthorised occupation of any Government premises.

In order to enable Government to take proceedings successfully under either of these sections, it must satisfy the Court that the premises in respect whereof action was taken was Government premises.

As the State failed to establish this fact the question of -eviction under the Act could never arise.

In tb.e result, the appeals are dismissed with costs.

G.C.

Appeals dismissed.

STATE OF MADRY.<\ PRADESH

SHIV KUNWARBAI ETC

S. M. SIKRI

K. S. HEGDE

P. JAGANMOHAN REDDY, JJ.

s. 3

s. 4

s. 3

Section 3

Section 3

Section 4

Section 3

Section 4