DEOKJNANDAN PRASAD

STATE OF BIHAR & ORS.

(May 4, 1971)

[S. M. SIKRI, C.J., G. K. MITTER, C. A. V AIDIALINGAM,

P. JAGANMOHAN REDDY AND I. D. DUA, JJ.]

Constitution of India, 1950, Art. 32-Right to pension, if propmy- Petition to enforce-Maintainability.

Bihar Service Code. r. 76-A.utomatic termination without opportunity to show cause-If violates Art. 311.

Bihar Pension Rules, r. 46--Scope of.

Tho petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent-State. On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of tho petitioner. On March 5, 1960, be was reverted to the Lower Division of the Subo-rdinate Educational Service,

as a result of an inquiry into certain charges. He filed a suit challenging the two orders. On August 5, 1961, the Munsiff passed an order restrain ing the respondent from enforcing the order dated March 5, 1960. On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge. On April II, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960. This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and tho petitioner's second appeal was dismissed by the High Court on February 11, 1965. On August 5, 1966, the Director of Public Instruction passed an order that the petitioner 'having not been on his duties for more than fiveycars since March 1, 1960 has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code.' The petitioner bav ing completed 58 ye>rs of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arranae for the payment of bis pension, and on June 12, 1968 tho Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules be wu not entitled to any pension. The petitioner filed the present writ petition under Art. 32 challenging the various orders.

HELD: (I) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [6520-H ~

653A-B]

(2) The order dated August S, 1966, declaring, under r. 76 of th& Service Code that the petitioner had ceased to be in Government service should be set aside. [653-AB]

(a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence. from duty by the government servant was with or without leave so Iona as. it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March

DBOKINANDAN v. Bl.HAR (Vaidialingam, J.)

11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was On the face of it erroneous:• [643C-D, B; 644A-q

(b) Assuming that the order should be read that the petitioner waS not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order oven then, the order would be illegal: From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty iii the seniqt post in spite of several letters written by him. Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the .l!PPellate , court, and so, the decree of the trial court was in full fotce till it was set aside in appeal on June 24, 1964.

Quring that period; that is, from April 11, 1963 to June 24, 1964 the petitioner wrote sevet, a~ letters requesting the respondent' to permit him to join duty in the sen, iot S; rade, but the respondent did not permit him to do so. Therefore, ther~ was no question of the petitioner being continuously absent from service for over S years during the period referred to when he wiis willing but the respondent did not allow him to serve, and bencebr. 76 of tho .Service Code was not applicable. [644E-F ;

645A-D, 0 ; 646 -H; 647 A-B, E-F]. > •

(c) Even if the r. 76 was applicable and it was a question of automatic termination of service, Art. 311 applies to such cases also. According to the respondents a contintious 'absence from duty for over five years apart from resulting in the forfei.ture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office tO' receive pension.

The respondent did not give an opportunity to the petitioner to shO\V cause

against the order proposed. Hence there was violation of Art. 311. [647G-

H; 6480-E]

Jai Shankar v. Stale of Rajasthan, [1966] I S.C.R. 825, followed..

(3) The Order dated Jµne 12, 1968 stating that under r. 46 of the Pepsico Rules the petitioner was not entitled to any pension should also be set aside. f649q Payment of pension under the rules does not depend upon the discretion of the State Government but is g'overned by the rules aq, d a government servant, coming within .those rules is entitled to claim pension. fJnder r. 46 a Government servant dismissed or removed for misconduct, insolvency p or inefficiency is not eligible for pension. In the present case it was contended that the petitioner's absence for over five years, amounted to mis~ conduct and inefficiency in service. But when the order dated August 5, 1966 bas been held to be illegal then tho order dated June 12, 1968 based upon it also falls to tho ground. [649B-C; D-H ; 650A-B]

(4) The grant of pension dOes not depend upon any order. It is only for the J1urpose of quantifying the amount having regard to the service and G other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules. The right of the petitioner to receive pension is property under .Art. 31~1) ad. by a mere executive order the State had nopower to withhold it.

Similarly, the said claim is also property under Art. 19(1) (f). It, therefore follows. that the order dated June 12, 1968 denying the petitioner the. righ~. to receive pension affected bis fundamental right and as such the writ petition H was maintainable. [6500-H; 652B-C, D-F1

K. R. Erry v. State of Punjab, "1.1,..R. [1967] Punjab & Haryana !78, (F.B) approved.

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

.A (S)·The bar against the Civil Court entertaining any suit relating to tho matter& under the Pension Act does not stand in Hie way of a writ of mandamus being 'issued to the State to properly consider the claim of the .Petitioner for payment' of pension according to law.

ORIGINAL Jurusrncnm~:. Writ Petition No. 217 of 1968.

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

Bishan Narain, B. B. Sinha,. S. N. Misra, S . .S . .Jauhar and K. K. Sinha, for .the petitioner.

!J. P. Jha1 for the respondents, '

I The Judgment pf, the Court .w~, s delivered Sy ' Vaidialingam, J~In this writ petition under Art. 32 of the Constitution,· th~ petitioner P!'aJlS" for the issue of a writ to the respondents in -the nature of Certii'!rari .or any 'Other appropriate writ, direction or order quashing four orderg ctal!tod 'September 2, 1953, March 5, 1960,, August 5, 196~ and June 12, 1968. He fur: !her prays for issue of a writ in the nature of a Wrjt of .Mandamus directing the respondents to treat him as having retired at the age of 58 'and to pay him the pension that he is entitle(f io.

Though four orders are cough! to .be quashed, as we will show in due cou.rsMhe grievance of the .petitioner regarding tlie orders dated September 2, 1953 and March. 5, 1960 can no longer be considered by this C_ourt in thi~.writ petition. In consequence only the last two orders, mentioned above, survive for consideration.

We will refer liriefiy to the circumstances leading up to the passing of the orders, referred to above, in order to appreciate the circumstances under which the last two orders in particular came to be made as well as the ground of attack levelled againsi these orders. /

The petitioner joined service as an Assistant Teacher on September I. 1928 in the Patna Practising School and was promoted a~ Sub-Inspector of Schools, Lower Division, in tpe Sub• ordinateiEdur.ational Service from May 31, 1934. The petitioner later on was promoted as Deputy Inspector of Schools in Upper Division of the Subordinate Educational Service and was posted at Seraikella in the Singhbhum District in the Chhotanagpur Division, Bihar from November I, 1949. The State of Seriakella having merged in the erstwhile province of Bihar, the provincial

DEOKINANDAN v. BIHAR (Vaidialiogam, J.)

Government took over and assumed control directly of the education in the locality through its employeeS" of the Education Department unlike other parts of the province where the ed'ucation was under the control and management of the-District and Local Boards.

The service -rendered by the petitioner as Deputy Inspector of Schools, Seraikella was found satisfactory. by the supe- • rior officers .including the Director of Public Instruction and hence he was recommended to be appt>inted to a superior post of Education Officer in the Community Project.

By about. the end of 1951, he was transferred to Purnlia hr the district.of Manbhum as Additional Deputy Inspector of Schools. The petitioner. was later on transferred to Bettiah in or abput May, 1953.

At Bettiah the petitioner receivd a copy of the order dated September 2; 1953 from the Director of Public Instruction directing a censure to be recorded in the character roll "of the petitioner based on the report of one Shri Kanhaya Lal, District Inspector of Schools, who, according to the petitioner, was inimically disposed towards hirn. The attempt of the petitioner to have the order dated September. 2, 1953 cancelled proved unsuccessful.

This is the first order that is sought to be quashed by the petitioner.

The petitiorter on "'the .basis of certain allegations was placed under suspension on February 6, 1954 and relieved from his duty as Deputy Inspector of Schools, Bettiah. There was, a charge sheet issued to the petitioner on March 16, 1954 and he was found guilty.

But these inquiry proceedings ere later on ser aside and a fresh inquiry was ordered.

In consequence the order ofsuspension was cancelled, but immediately ther"1'fler a fresh inquiry was conducted In which he was again found guilty as per the report of the Inquiry Officer datect September 22, 1959. The Disciplinary Authority, who was the Director of Public Instruction. passed an order on March 5, 1960 accepting the finding of the fnquiry Officer recorded again5t the petitioner and held that the charges had been proved against him. Accordingly, by this order the petitioner was reverted, as punishment, to Lower Division of Subordinate Educational.Service and also directing a censure entry to be recorded in hiS' personal character roll. This is the second order that Is challenged in this writ petition.

It is not necessary for us to deal in any detail about the first and the second Oj'der as both those orders are now concluded against the petitioner by the decision of the High Court.

The petitioner filed t\tle suit No. 86 of 1961 in the Court of the Munsif, III, Patna, for a declaration challenging the order dated March 5, 1960 as well as the inquiry proceedings on the basis of which the said order was'passed. He also challenged the order ot' censure passed on September 2, 1953 and further incorporated in the order of March 5, 1960.

Though the suit was

-E

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

contested by the respondents, it was ultimately decreed on April 11,. 1963. The respondents filed title appeal No. 132/24 of 1963-64 <before the Subordinate Judge, II Court, Patna, challenging the decree of the Munsif. On June 24, 1964 the appeal was al!, pwed, with the result that the petitioner's. title suit No. 86 of

1\ftil stood dismissed. The petitioner's Second •'Appeal No. 6-10 of 1964 was 'dismissed by the High Court on May 4, 1967, From these proceedings it is clear that the ordr of censure .dated SeptelJlber 2, 1953 as well as of reversion dated March 5, 1960 have both been found to be correct by the High Court and it is no longer open to the petitioner to canvass those orders again. But it may be necessary for us to refer to certain proceedings connected with the title suit when we deal with die atta'.ck of t)le petitioner against the legality of the orders dated August 5, 1966 and June 12, 1968. When the order of reversion dnted March 5, 1960 was

passd. the petitioner was workil)g as Deputy Inspector of Schools, Deoghar. The office of the Deputy .Inspector of Schools was closed for Holi holidays from March '11, 1960 and the petitioner claims that he left the headquarters to go to Patna with the permission of the authorities.--.The order dated March. 5; 1960 was received by him at Patna on March' 23, 1960 when he was ill.

He applied tor leave.

According o "the petitioner, he obtained an order of temporaiy injunction on October 5, 1961 in hi~ title suit No. 86 of 1961 restraining. the respondents from giving effect to the order dated March 5, 1960reverting' him to the Lower Division in the Subordinate Educationaf Service.

Though he. offered to join th_e post to which he was entitled originally, he was not allowed by the respondents to join the Upper Division of the Subordinate Educational Service.

The action of the respondent in refusing to permit him to join duty was in flagrant violation of the order of temporary injunction granted by 'the Munsif, Patna.

On August 5, 1966 the Director of Public Instruction passed an order that the petitioner "having not been on his duties for more than five years since March 1, 1960, has ceased to be in Government employ since March 2, 1 ~65 under r. 76 of ihe Bihar Service Code''. The petitioner made representations for cancellation of this order but without any success.

This is the third order that is being challenged.

The petitioner having completed 58 years of age, addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange_ for the payment of the petitioner's pension. No reply was received by the petitioner for a long time inspite of repeated reminders.

Ultimately on June 12, 1968 the Director of Public Instruction passed ordrs on .the petitio°oer's

application dated July 18, 1967 regarding payment of pens10n.

DEO&INANDAN v. BIHAR-{Vaidialingam, J.) 639 • In this order it is stated that under r. 46 of the Bihar Pension Rules (hereinafter to be referred as the Pension Rules), the Department is unable to grant any pension to the petitioner. We will refer to this rule at the appropriate stage but it is enough to take note of the fact that under the said rule, no pension may be granted to a government servant dismissed or removed for misconduct, insolvency or inefficiency.

According to the petitioner this order is illegal and void. This is the fourth order that is under challenge.

According to the petitioner the order dated August 5, 1966 is , an order removing him from service and it is illegal and void as it has been passed in contravention of Art. 311 of the Constitution. Further the order is also not legal and not warranted by the Rules for the reason that the petitioner had not been absent from duty for over five years continuously. According to the petitioner there is a further infirmity in the order as the respondents are Inconsistent in their pleas regarding the date from which the period of continuous absence has to be calculated. This plea is based upon the different dates given in the order dated August 5, 1966 and the dates given in the counter-affidavit filed on behalf of the respondents. The attack on the order dated June 12, 1968 is two fold, namely, (a) that it is not warranted by r. 46 of tbe Pension Rules under which it Is purported to be passed; and (b) the petitioner's right to get pension is property and by the respondents not making it available to him, his fundamental rights guaranteed under Arts. !9(1)(f) and 31(1) of the Constitution, have been affected.

The Assistant Director of Education has filed a counteraffidavit on behalf of the respondents. According to the respondent the orders of censure passed on September 2, 1953 and of reversion dated March 5, 1960 are valid and legal and in passing those orders no violation of any rules has been made. The petitioner was given full opportunity to participate to the inquiry proceedings and it was after considering the report as well as the explanation furnished by the petitioner that the order of reversion was passed. The petitioner is not entitled to challenge any of those orders as they are concluded by the decision of the Patna High Court dated March 4, 1967 in Second Appeal No. 640 of 1964.

Regarding the order dated August 5, 1966, it is admitted by the respondents that the petitioner was on duty till March 10,

1960. He ceased to attend office only from March. IL 1960. It is further admitted that it has been stated by mistake in the order that the petitioner has not been on duty for more than five years since March !, 1960. The date "March I. 1960 should be read

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

as "March 11, 1960". The respondents dispute the averment of the petitioner that he left the headquarters from March 11, 1960 with the permission of the authorities. On the other hand . accord ing to them, the petitioner had put in an application in the office of the Sub-Divisional Educational Officer for leave on March 11, 1960 and that he did not obtain any prior permission for leaving the headquarters. It is further averred that the order dated March 5, 1960 reverting the petitioner came into effect imme diately and the petitioner was also informed of the same. It is specifically pleaded by the respondent as follows :

"In other words since 11·3-1960 till 5-8-1968 he was continuously not in service for more than 5 years.

By virtue. of rule 76 of Bihar Service Code of 1952 the petitioner ceased to be in the service of the Government as he remained absent from duty continuously for 5 years and this itself amounts to misconduct and inefficiency in the service. In the present case the provisions of article 311 do not apply to the facts of this case because his services are not terminated on account of any charge but are automatically terminated by virtue of the statute i.e. rule 76 of the Bihar Service Code 1952. Article 311 applies where the services of a governmen\ servant are terminated in respect of any charge. But it does not apply where a government servant ceases to be a government servant by virtue of any statute."

According to the respondent there has been no breach committed of Art. 311 of the Constitution when the order dated August 5, 1966 was passed on the basis of r. 76 of the Bihar Service Code, 1952 (hereinafter to be referred as the Service Code). It is to be noted at this stage that there is a variation regarding the dates of continuous absence for over five years mentioned in the order and in the counter-affidavit. They will be dealt with by us when the attack of the petitioner on the order dated August 5, 1966 is considered. It is further admitted by the respondents that even after the injunction order was passed by the Munslf, the Department was always insisting on the petitioner to join in the lower grade to which post he had been reverted and that the petitioner never joined that post.

Dealing with the order dated June 12, 1968 in and by which the petitioner was informed that the Department was unable under r. 46 of the Pension Rules to grant him pension, the respondents state that the order is valid and fails squarely under the said rule.

According to the respondents the order da<ed August 5, 1966 is an order removing the petitioner from service for not attending to his duty for more than five years and that by itself amounts to misconduct.

Therefore, the petitioner was not entitled to claim

DEOKINANDAN v. BIHAR (Vaidialingam, J.) 641

any pension. There is also an averment to the effect that there is A no question of any fundamental right of the petitioner being affected by the orders under attack and hence the writ petition is not maintainable.

The petitioner has filed a rejoinder wherein he has pointed out the inconsistent dates given in the order dated August 5, 1966 • and in the counter-affidavit filed on behalf of the respondents by the Assistant Director of Education. According to the petitioner in whatever manner the period is calculated either as per the dates given in the order or by the dates given in the counter-affidavit, rule 76 does not apply as he has not been continuously absent from duty for over five years. The petitioner further avers that he was absent from duty after taking the permission of the authorities. According to the petitioner he has not been continuously absent from duty for over five years if the period is properly calculated according to the various orders passed by the Munsif, Patna, in his title suit. According to the petitioner, when a court has restrained the respondenlii from giving effect to the order of reversion and when he offered to join duty in the post from which he was reverted, the respondents without any regard for the court orders, did not permit him to join duty, but, on the other hand, insisted that he should join duty in the lower rank to which he had been reverted.

This, according to the petitioner, is illegal.

The petitioner further reiterates his allegation that he was, entitled to pension and that withholding of the same affects his fundamental rights. According to the petitioner the respondents do not deny his right to get pension but, on the other hand, plead that as he has been removed from service .bY the order dated August 5, 1966, he is not entitled to pension by virtue of r. 46 of the Pension Rules. He further points out that as the order dated August 5, 1966 is illegal, the order dated June 12, 1966, which is based upon the earlier order, is also null and void.

The questions that arise for consideration are whether the orders dated August 5, 1966 and June 12, 1968 are legal and valid.

Before we consider that aspect, it is necessary to state that in order to sustain this petition under Art. 32, the petitioner will have to establish that either the order dated August 5, 1966 or June 12, 1968, or both of them affect his fundamental rights guaranteed G !O him. The.orde: of August 5, 1966, according to the petitioner,

1~ one removmg him from service and it has been passed in violaton of Art. 311: 1:hat the sai~ order is one removing Hie petilloner from. service 1s also adm1ted by the resoondents in paragraJ?h 11 o~ the connter-af!idav1t filed on their behalf by the Assistant Drrectoi: of. Education.

Assuming that the said order H

hs been passed In violation of Art. 311, the said circumstance Wiil not give a right to the petitioner to approach this Court under Art. 32. The stand taken by the petitioner is that his right to get 41-1 S.C. India/71

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

pension is property and it does not cease to be property on the mere denial or cancellation by the respondents. The order dated June 12, 1968 is one withholding the payment of pension or at any rate amounts to a denial by the respondents to his right to get pension. Either way, his rights to property are affected under Arts. 19(l)(f) and 31(1) of the Constitution. His right to pension cannot be taken away by an executive order.

In the counter affidavit, the respondents do not dispute the rights of the peti tioner to get pension, but they take the stand that the order dated June 12, 1968 is justified by r. 46 of the Pension Rules. This aspect will be dealt with by us later. There is only a bald averment in the counter-affidavit that there is no question of any fundamental right and therefore this petition is not maintainable. As to on what basis this plea is taken, has not been further clarified in the counter-affidavit. But before us Mr. B. P. Jha, learned counsel for the respondents, urged that by withholding the payment of pension by the State, no fundamental rights of the petitioner have been affected.

We are not inclined to accept the contention of Mr. Jha that no fundamental rights of the petitioner are affected by passing the order dated June 12, 1968. We will refer to the relevant Pension Rules bearing on the matter and also certain decisions.

In our opinion, the right to get pension is "property" and by withholding the same, the petitioner's fundamental rights guaranteed under Arts. 19(1)(f) and 31(1) are affected. As the matter is being discussed more fully in the latter part of the judgment, it is enough to state at this stage that the writ petition is maintainable. Even according to the respondents the order dated June 12, 1968 has no independent existence and that order bas been passed on the basis of the earlier order dated August 5, 1966. In our opinion, if the order dated August 5, 1966 cannot be sustained, it will follow that the order dated June l2. 1968 will also fall to the ground. Hence we will deal, in the first instance, with the validity of the order dated August 5, 1966. The full text of the order dated August 5, 1966 passed by the Director of Public Instruction, Bihar, Is as follows :

"Number-7 /-07 /60 Edn. 3791:

Sri' Devaki Nandan Prasad, Sub-Inspector of Schools, Deoghar, having not been on bis duties for more than 5 years since 1-3-60 has ceased to be in Government employ since 2-3-65 under rule 76 of the Bihar Service Code.

(Sd.) K. Ahmed

Director of Public Instruction Bihar.

DEOKINANDAN v. BIHAR (Vaidialingam, J.) 64 3

Memo No. 3791 Patna, dated 5th August, 1966.

A Copy forwarded to Sri Devaki Nandan Prasad, New Yarpur, Patna for information."

Rule 76 of the Service Code reads as follows:

"Unless the State Government, in view of the special circumstances of the case shall otherwise determine, A. Government servant after five years of continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, ceases to be in Government employ."

The essential requirement for taking action under the said rule is that the government servant should have been conti:iuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years.

We are referring to this aspect because it is the case of the petitioner that he availed himself of leave with effect from March II,

1960 and he left the headquarters after obtaining the necessary sanction from his superior officers. On the other hand, it is the case of the respondents that the petitioner merely putting in an application for leave from March 11, 1960 left the headquarters without obtaining the prior permission of the superiors. It is not necessary for us to deal with this controversy, as under the rules absence for the period stated therein, either with or without leave, are both treated on the same basis.

According to the dates given in the order, the petitioner has not been on his duties for more than five years from March 1. 1960 and that he ceased to be in government employ from March 2,

1965. According to the petitioner this order is illegal because he was on duty till March 10, 1960 in which case continuous absence of five years would not be completed on March 2, 1965.

But the more serious attack against this order is that there is no question of the petitioner not being on his duties continuously for more than five years. On the other hand, according to him, he has always been ready and willing to do his duty and the respondents have illegally prevented him from joining duty by ignoring orders of the civil court. In this connection, on behalf of the petitioner, Mr. Blshan Narain, learned counsel, has referred us to the details regarding the institution of the title suit No. 86 of 1961 by the petitioner as well as to certain orders passed by that court.

He has also drawn our attention to the letters written by the petitioner to the authorities offering to work and the respondents not sending any :eply and ultimately asking the petitioner to join duty in the reverted post, though the order of reversion has been declared illegal by the Munsif, Patna. We have already referred

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SUPREME COURT REPORTS

[1971] SUPP. S.C.R.

to the averments in the counter-affidavit filed on behalf of the respondents. So far as this aspect is concerned, it is admitted in paragraph 8 of the counter-affidavit that the petitioner was on duty till March 10, 1960 and that he ceased to attend to his duty only from March 11, 1960. Therefore, the averment of the petitioner that he was on duty till March 10, 1960 is accepted as correct by the respondents. Therefore, it follows that even according to the respondents, the petitioner was absent from duty continuoµsly for more than five years only from March 11, J960 and he ceased to be in govermnent employ on March 2, 1965. Without anything more it can be easily said that this calculation is absolutely erroneous because from the dates mentioned above, the petitioner cannot be considered not to have been on duty for more than five years.

There is a slight shift in the stand taken by the respondents in. the counter-,11ffidavit.

While they admit that the date from wh'ich the period of absence should be calculated is March 11, 1960 and not March I, 1960, they have stated that the petitioner was absent from March 11, 1960 till August 5, 1966, the date on which the order was passed and hence he was continuously not in service for more than five years. That is even the outer period given in the order dated August 5, 1966, namely, March 2, 1965 is changed by the respondents to the date of passing of the order dated August 5, 1966.

We will now proceed on the basis that the order dated August 5, 1966 should be read in such a manner that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966. If the respondents are able to establish this circumstance, it is needless to state that r. 76 of the Service Code will come into operation irrespective of the fact whether the petitioner was absent with or without leave. According to the petitioner, he has not been continuously absent for over five years even during the above period as stated by the respondents.

It is now necessary to refer to certain proceedings connected with the title suit No. 86 of 1961 instituted by the petitioner in the Court of the Munsif III, Patna. In that suit the petitioner challenged the order dated March 5, 1960 in and by which he was reverted to the lower division of the Subordinate Educational Service and a censure was directed to be recorded against his character roll. According to the respondents in this suit tbe order of censure passed on September 2, 1953 was also challenged. On August 5, 1961, the Munsif passed an order restraining the present respondents from operating the punishment order passed on March 5, 1960 by the Director of Public lnstruct!on on the petitioner till the disposal of the suit. It is now admitted by the respondents that the petitioner was on duty till March 10, 1960 and

.J80KINANDAN v. BIHAR (Valdlalingam, J.) 845

that he was absent only from March 11, 1960. That there was an order of temporary injunction passed by the court restraining the respondents from giving effect to the order of March 5, 1960 is not challenged in the counter-affidavit. Accordiing to the petitioner he went on October 13, 1961 to join his post from which he was illegally reverted, but in spite of the order of the Munsif, Patna, the respondents did not permit him to join duty. That he was prepared to join duty and work is clear from the letters written by the petitioner to the Director of Public Instruction on October 13, 1961, October 24, 1961 and November 1, 1961.

There was no reply by the respondents. It is no doubt true that on April 3, 1962, the temporary injunction granted by the Munsif, Patna, was vacated by the Subordinate Judge. On April 11, 1963 he title suit No. 86 of 1961 instituted by the petitioner was decreed and the respondents were prohibited from enforcing the order dated March 5, 1960 reverting the petitioner from the senior grade to the lower grade of the Subordinate Educational Service.

The petitioner again wrote a letter on April 18, 1963 to tlie Director of Public Instruction drawing the latter's attention to the decree passed in title suit No. 86 of 1961 and requesting him to pem1it the petitioner to join duty as Deputy Irispector of Schools.

There was a reply on November 27, 1963 by the Director of Public Instructions to the effect that the plea of the petitioner has been considered at all levels of the Directorate and the Government. The petitioner was directed to report himself to the Regional Deputy Director of Education, Bhagalpur Division and to join duty in "Lower Division of Subordinate Educational Service". The letter proceeds to state "in case of disobedience of 6lrder you will be charged with insubordination".

We are constrained to remark that the attitude taken in this letter on behalf of the State is not commendable at all.

Admittedly there was a decree passed by the Munsif in title suit No. 86 of 1961 on April 11, 1963 restraining the respondents from giving effect to the order dated March 5, 1960 reverting the petitioner from the post of Deputy Inspector of Schools to the Lower Division of Subordinate Educational Service.

Admittedly the respondents were parties to the said decree and they had not obtained any order of an Appellate Court staying the operation of the decree in the suit. The effect of the decree passed by the Munsif was that the petitioner was entitled to work in the original post which he was holding prior to his reversioJ'.l.

That these aspects have been missed by the respondents is evident from the reply of November 27, 1963 sent by the Director of Public Instruction .. The petitioner sent a further letter dated December 6, 1963 m reply to the letter of the Director of Public Instruction dated November 27, 1963. In this letter the petitioner again referred to the de.cree of the Munsif, Patna, dated April 11, 1963 and pointed out at

he was entitled to hold the original post which he was occupymg

SUPREME COURT REPORTI; . [1971] SUPP. s.c.R.

prior to the order of reversion, which has been directed not to be put into operation by the court. He further pointed out that the directions contained in the letter dated November 27, l963 sent by the Director of Public Instruction was not in conformity with the decree of the Munsif. He further made a request that he should be allowed to join duty in the original post in the senior grade and also made a further request for payment of arrears of his salary. There was no reply by the respondents and the petitioner was not allowed to join duty as desired by him.

The above correspondence is not at all disputed by the responde1,1ts.

In fact they have admitted in the counter-affidavit that even after the order of injuncfion, the Department was always insisting on the petitioner joining duty as Sub-Inspector of Schools, that is, in the lower grade and that the petitioner never joined duty in that post. To complete the narration on this aspect, the decree of the Munsif in favour of the petitioner restraining the respondents from enforcing the order dated March 5, 1960 was set aside on appeal by the Subordinate Judge on June 24, 1964 in title appeal No. 132/24 of 1963 /64. The petitioner's Second Appeal No. 640 of 1964 was dismissed by the High Court on February 11, 1965.

From the narration of the above facts, it will be clear that from October 5, 1961, the date of temporary injunction granted by the Munsif, till April 3, 1962, when the order of temporary injunction was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post, which he was entitled to occupy by virtue of the order of injunc tion. We have already referred to the fact that the petitioner sent letters dated October 5, 1961, October 13, 1961, October 20, 1961 and November 1, 1961 expressing his readiness and willingness to work in the senior post. The respondents did not permit him to j6in duty. Therefore, It cannot be said that the petitioner was absent from duty during this period Again on April 11, 1963, the Munsif granted a decree in favour of the petitioner in the suit.

The respondents did not obtain any stay order from the Appellate Court. So the decree of the trial court was in full force till it was set asicl;:l on appeal on June 24, 1964. During the period April 11, 1963, June 24, 1964, the petitioner wrote several letters and to which we have made a reference earlier, requesting the respondents to permit him to join duty in the senior grade. The respondents did not permit him to join duty in the senior grade ; but, on the other hand, insisted on the petitioner's joining duty in the lower grade on _threat of disciplinary action beng taken.

This attitude of the respondents, we have already pomted out, was in flagrant violation of the order of the Munsif.. Therefore, during the period April II, 1963 to June 24, 1963, 1t ann?t be said that the petitioner was absent from duty. Hence tt will be

I DEOKINANDAN v. BIHAR (Vaidialingam, J.)

seen that the claim made by the respondents in the counter-affidavit that the petitioner, since March 11, 1960 till August 5, 1966 was continuously not in service for over five years is fallacious.

There is no question of the petitioner not being in continuous service for over five years during the period referred to above.

On the other hand, the period during which it could be said that the petitioner was absent was from March 11, 1960, the date on which he claims to have gone on leave till October 5, 1961 when the order of temporary injunction was passed by the Munsif.

From October 5, 1961 to April 3, 1962, we have already pointed out, the petitioner cannot be considered to have been absent from duty. Therefore, the continuity of absence is broken during this period. The petitioner can again be considered to have been absent from duty from April 3, 1962, the date on which the order of temporary injunction was vacated by the Subordinate Judge, till April 11, 1963, the date on which a decree was granted by the Munsif in favour of the petitioner. During this period he was absent. But again the continuity of absence 'is broken during the period April 11, 196'3 the date of the decree of the Munsif, till June 24, 1964, the date when the Subordinate Judge reversed the decree of the trial court.

We have already referred to the various letters written during this period by the petitioner as well as the reply sent by the Director of Public Instruction on November 27, 1963. During this period he cannot be considered to be absent from duty. The third period from which he can be again considered to be absent from duty is June 24, 1964, the date of the decree of the Subordinate Judge till August 5, 1966, the date on which the order was passed purporting to be under r. 76 of the Service Code. The above circumstances clearly show that the petitioner cannot be considered to have been continuously absent from duty for over five years during the period March 11. 1960 to August 5, 1966. If that is so, the essential condition for the application of r. 7(; of the Service Code is lacking and, therefore, it follows that..the order dated August 5, 1966 is not supported by r. 76 of the Service Code. Therefore that order is illegal and has to be quashed.

A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Art. 311 of the Constitution.

According to the respondents there is no violation of Art. 311.

On the other hand, there is an automatic termination of the petitioner's employment under r. 76 of the Service Code. It may not be necessary to investigate this aspect further because on facts we have found that r. 76 of the Service Code has no application.

Even If it is a question of automatic termination of service for being continuously absent for ove~ a period of ve years: Art.. 311 applies to such cases as is laid down by this Court m Jar

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

Shanker v. State of Rajasthan (').

In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regula tions, which is as follows :

".13. An individual who absents himself without penniss1on or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority."

It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected the said contention and held that an opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it.

It was further held "to give no opportunity is to go against Art. 311 and this is what has happened here".

In the case before us even according to the respondents a continuous absence from duty for over five years, apart from resulting in the forefeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the said officer to receive pension. It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. Hence there is a clear violation of Art. 311. Therefore, it follows even on this ground the order has to be quashed.

The further question is about the legality of the order dated June 12, 1968 purporting to be passed under r. 46 of the Pension Rules. The petitioner wrote a letter dated July 18, 1967 request ing the Director of Public Instructions to arrange for payment of his pension as he had attained the age of superannuation. The order dated June 12, 1968 was passed in reply to the said request of the petitioner. Jn this order it is stated that under r. 46 of the Pension Rules, the Department is unable to grant pension to the petitioner. Rule 46 of the Pension Rules is as follows:

"46. No pension may be granted to a Government servant dismissed or removed, for misconduct, insol vency or inefficiency, but to Government servants so dismissed or removed compassionate allowance may be granted when they are deserving of special consideration, provided that the allowance granted to any Government servant shall not exceed two-thirds of the pension which

(I) (1966] I S. C. R. 825,

DBOKINANDAN v. BIHAR (Vaidia//ngam, J.)

would have been admissible to him if he had retired on medical certificate." It will be seen that under the said rule a Government servant who has been dismissed, or removed for misconduct, insolvency or inefficiency is not eligible for pension. The respondents have admitted in their counter-affidavit that the order dated August 5, 1966 purporting to be under r. 76 of the Sernce Code is an order of removal and it is further pleaded by them that tire petitioner's absence for over five years itself amounts to miscon- .duct and inefficiency in service. We have already held that the order dated August 5, 1966, is illegal. If that is so, it follows that the petitioner has not been continuously absent from duty for over five years and he is not guilty of any misconduct or inefficiency in service. Therefore, it will further follow that withholding of pension under tire order dated June 12, 1968 on the basis of r. 46 of the Pension Rules, is illegal.

The respondents have not taken up the position that the officers like the petitioner are not entitled to pension. A reference to r. 5 of the Pension Rules shows that the officers mentioned therein are entitled to pension. There is no controversy that the petitioner is an oflicer in the Education Department of the Bihar Education Service. It is item No. 3 of the Schedule to r. 5. Rule 42 declares that every pension shall be held to have been granted subject to the conditions contained in Chapter VIII. It is not the case of the respondents that Chapter VIII which applies to reemployment of pensioners, has any relevancy to the case on hand.

We have already referred to r. 46.

Under that rule a Government servant dismissed or removed for misconduct, insolvency or inefficiency is not eligible for pension. But that rule clearly contemplates that action by way of dismissal or removal in respect of the three matters mentioned therein has already taken place according to law. The bar under r. 46 will operate only when the conditions mentioned therein are satisfied. In fact the consequences envisaged under the rule flow from the action already taken. Rule 129 provides for the payment of superannuation pension to a Government servant entitled or compelled by the rules to retire at a particular age. Rule 134 clarifies the payment of retirement pensicn to a Government servant permitted to retire after completing qualifying service for 30 years or any such less time as may for any special class of Government servants be prescribed.

Rule 135 provides for Government servants mentioned in r. 5 to be entitled on their resignation being accepted to a retiring pension after completing qualifying service of not less than 25 years. Rule 146 provides the scale of pension for Government servants mentioned in r. 5. We have only referred to some of the important rules to show that the payment of pension .does not depend upon the discretion of the State ; but, on the

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

other hand, payment of pension is governed by the Rules and ll Government servant coming w'ithfa the Rules is entitled to claim pension. The order dated June 12, 1968 has to be quashed in view of the fact that the foundation for the said order is the one based on the order dated August 5, 1966, which has been quashed by us. When the order dated August 5, 1966 can no longer survive, the order dated June 12, 1968 quite naturally falls to the ground.

The last question to be considered, is, whether the right to receive pension by a Government servant Is property, so as to attract Arts. 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Art. 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.

According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension.

That order affects his fundamental rights under Arts. 19(1)(fl and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel fof the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances.

According to him. in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be tonsidered to affect the petitioner's right regarding property so as to attract Arts. 19(l)(f) and 31(1) of the Constitution.

We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules.

The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein.

I DEOKINANDAN v. BIHAR (Vaidia!ingam, J.) 651

The question whether the pension granted to a public ser- A vant is property attracting Art. 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India f). It was held that such a right constitutes "property" and any interference will be a breach of Art. 31( 1) of the Constitution. It was further held that the State cannot by an executive ordlr'-curtail or abolish altogether the right of the public B servant to receive pension. This decision was given by a learned Single Judge.

This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union df India v. Bhagwant Singh (approved the decision of the learned Single Judge. The Letters Patent Bench lleld that the pension granted to a public servant on his retirement is "property" within the meaning of Art. 31 (!) of the Constitu- C tion and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further beld that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.

The matter again came up before a Full Bench of the Punjab and Haryana High Court in K. R. Erry v. The State of Punjab <).

The High Court had to consider the nature of the right of an officer to get pension.

The majority quoted wrth approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant.

It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, neverthe-_ less, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances. a fyrther opportunity should be given to an officer when a red1!ctton m the amount of pension payable is made by te State. It 1~ not necessary for us in the case on hand, to consider the question whether

(I) A.LR. 1962 Punjab 503.

(2) I. L. R. 1965 Punjab J.

(3) LL. R. 1967 Punjab & Haryana 278

SUPRBMB' COURT REPORTS (1971] SUPP. s.c.R.

before taking action by way of reducing or denying the pension on th~ basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on tire other hand, the right to pension is a valuable right vesting in a government servant.

This Court in State of Madhya Pradeh v. Ranojirao Shinde and another (') had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Arts. 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".

Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Art. 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Art. 19(1)(() and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the funda mental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of

1871) there is a bar against a civil court entertaining any suit relat ing to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension accord ing to law.

To conclude : No relief can be granted in respect ot the orClers dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of the High Court, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953. Further, the representations made

(i) [1968]3 S. C. R. 489.

DEOK!NANDAN v. BIHAR (Valdialingam, J.) 653

by him for cancellation of the said order have been rejected long A ago. Further, there is no infringement of any fundamental right of the petitioner by that order. The order dated August 5, 1966 declaring under r. 76 of the Service Code that the petitioner has ceased to be in government employ is set aside and quashed. The order dated June 12, 1968 stating that under r. 46 of the Pension Rules, the Department is unable to grant the petitioner pension 8 is also set aside and quashed. As the petitioner himself claims that he has been retired from service on superannuation, a writ of mandamus will )le issued to the respondents directing them to consider the claim of the petitioner for payment of pension accord ing to law. The writ petition is allowed to the extent indicated above. The petitioner is entitled to his costs from the first respondent, the State of Bihar.

V.P.S.

Petition allowed.

DEOKJNANDAN PRASAD

STATE OF BIHAR & ORS

S. M. SIKRI, C.J.

G. K. MITTER

P. JAGANMOHAN REDDY

I. D. DUA, JJ.

Constitution of India

Art. 32

Bihar Service Code

Art. 311

Bihar Pension Rules

Art. 32

Art. 311

Art. 311

Art. 31

Art. 19(1)

Art. 32

Constitution of India

Art. 32

Bihar Service Code

Art. 311

Bihar Service Code

article 311

Bihar Service Code 1952

Article 311

Art. 311

Bihar Service Code, 1952

Art. 32

Art. 311

Art. 311

Art. 32

Arts. 19(l)(f) and 31(1)

Arts. 19(1)(f) and 31(1)

Art. 311

Art. 311

Art. 311

Art. 311

Arts. 19(1)(f) and 31(1)

Art. 32

Arts. 19(1)(fl and 31(1)

Arts. 19(l)(f) and 31(1)

Art. 31(1)

Art. 31( 1)

Art. 31

Arts. 19(1)(f) and 31(1)

Art. 31(1)

Art. 19(1)(()

Art. 19

Arts. 19(1)(f) and 31(1)

Art. 32


-AHMEDABAD MUNICIPAL CORPORATION OF THE CITY A

OF AHMEDABAD v.

HAJJ ABDULGAFUR HAJI HUSSENBBAl

March 18, 1971

II. 0. DUA AND V. BHARGAVA, JJ.]

Transfer of Property Act (4 of 1882), s. 100-App/icabi/ity to auction sales-Whether s. 141(1) of the Bombay Provincial Municipal Corporatiun Act, _1949, falls within the saving provision of s. 100, T P. Act-Constructive

notice of existence of arrears of municipal taxes-If and when can be im

puled to auction purchaser.

Jn 1950, a building vested in the receivers on its owner being adjudicat ed an insolvent. Jn 1951, the receivers secured necessary orJers frotn court for paying off municipal taxes then due, but the receivers did not pay and the municipal corporation did not also pursue the matter. Jn 1954, the property was brought to sale in execution of a mortgage decree obtained by a mort- &agee of the property and the respondent purchased it at the court sale. Before the purchase he made enquiries from the receiver if there were any dues D against the property, but he was not informed about the arrears of muni.:ipal taxes. In 1955, the municipal corporation attached the property f01 arrears of municipal taxes due from 1949, and the purchaser filed a suit for a declaration that the arrears were not recoverable by sale of the property.

On the questions: (!) whether under s. 141(1) of the Bombay Provin- E cial Municipal Corporation Act, 1949, read with s. 100 of the Transf¢r of Property Act, 1882, the property could be sold for the arrears in the hands of the respondent even if he was a transferee for consideration withuut notice, and (2) whether the respondent, who was an auction purchaser at a court sale, could be held liable to pay the arrears of taxes and the property could be held subject to the liability on the ground that he had

onstructive notice of the existence of the arrears.

HELD: (1) Section 100, Transfer of Property Act, lays down that no charge is enforceable against any property in the hands of a transferee for

considration without notice of the charge except when it is otherwise expressly provided by any law for the time being in force. The real core of the saving provision of law is not mere enforceability of the charge against the property but enforceability of the charge, against the property in tire hands of a transferee for consideraUon without notice of the charge.

S. 141 of the Bombay Municipal Act is not such a provision. rt merely creatE's a charge in express language. but apart from creating a statutory charge, it does not further provide that the charge is enforceable against the property in the hands of a transferee for consideration without notice

of the charge. (67 A-B ; 68E]

(2) (a) There is no basis for the contentions that s. 100 of the Transfer of Property Act does not apply to auction sales and that therefore the exeoution purchuers purchase the property subject to all the charges and encumbrances which would bind the judgment debtor.

This Court in Lanni Devi v. Mukand Kunwar, (1965] I S.C.R. 726 pointed out that s:

100 applies to proceedings by operation of law also. [69A-B]

SUPRElll! COURT REPORTS [1971] SUPP. s.c.R.

(b) According to s. 3, Transfer of Property Act, a person is said I<> have notice of a fact when he actuaUy knows the fact or when but for wilful absention from enquiry or search which he ought to have made, or gross negligence, he would have known it. In the latter case he is presum ed. to have constructive notice. For drawing the presumption in the prest>nt case, therefore, the question is not whether the purchaser had the means of obtaining, and might with prudent caution have obtained, knowledge of the charge but whether in not doing so, he acted with wilful abstentioa or gross negligence. There is no principle of law imputing, to all intend ing purchasers of property in municipal areas where municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. lt is a question of fact or a mixed question of fct and law deprn. ding on the facts and circumstances of the case.

The material in the present case does not justify that the respondent purchaser should be fixed with any constructive notice of the existence of the arrears. because (i) he could not reasonably have thought the municipal corporation had not cared to secure payment of the taxes due since 1949: (ii) the 1nunicipal corpooation was far more negligent and blameworthy than the respondent in allowing the arrears: to accumulate; (iii) though he 1nade enquiries from the receiver~ they did not give any intimation about the arrears; and (iv) the building was in the occupation of tenants and the rent was recovered by the receivers and the reasonable assumption would be that the n1unicipal tax. which '"'i!o. a charge on the property and given priority under s. 61 of the Provincial

Insolvency Act. 1920, had been paid by the receivers.

[71G-H; 72H;

730-G; 74C-H; 75B-D]

Nawal Kishore v. Municipal Board, Agra. I.LR. [1943] All. 453, Municipal Board. Lucknow v. Ramji/al, I.LR. [1916] 16 Luck. 607, Chamiu Ram v. Municipal Commissioner of Kurseong Municipality, A.l.R. 1951 Ca1. 398 and Municipal Board, Lucknow v. Lala Ran1ji Lal, A.l.R. 1941 Oudh 305, overruled.

Municipal Board, Cawnpore v. Roop Chand Jain, I.LR. [1940] All. 669. approved.

Akhoy Kumar Banerjee v. Corporation of Calcutta, 1.L.R. 4.:! Cal. 625, referred to.

ClvIL APPELLATE JURISDICTION : Civil Appeal No. 1161 of F 1967.

Appeal from the judgment and order dated April 28, 29, 1966 of the Gujarat High Court in Letters Patent Appeal No. 19 of 1961.

S. T. Desai and /. N. Shroff, for the appellant.

The respondent did not appear.

The Judgment of the Court was delivered by

Dua, J.-In this appeal on certificate granted by the High Court of Gujarat under Article 133(1)(c) of the Constitution of India the question raised relate to the liability of auction purchaser of property at court sale for the arrears of municipal taxes due on the date of sale to the municipal corporation of the City of Ahmedabad which dues are a statutory charge on the property sold and of which the purchaser had no actual notice.

On the

question of constructive notice there is a sharp conflict of judicial decisions in the various High Courts and in the Allahabad High Court itself there have been conflicting expression of opinion.

In this Court there being no representation on behalf of the respondent the appeal was heard ex parte.

The property which is the subject matter of controversy in this litigation originally belonged to one Haji Nur-Mahammad Haji Abdulmian.

He apparently ran into financial difficulties iir February, 1949, and insolvency proceedings were started against him in March, 1949.

By an interim order receivers took charge of his estate and finally on October 14, 1950 he was adjudicated insolvent. The property in question accordingly vested in the receivers.

This property had been mortgaged with a firm cailed Messrs. Hargovind Laxmichand.

In execution of a mortgage decree obtained by the mortgagee this property was auctioned and purchased at court sale by the. plaintiff Haji Abdulgafur Haji Hussenbhai, (respondent in this Court) for Rs. 22,300.

He was declared purchaser on November 28. 1954.

At the time of this purchase there were municipal taxes in respect of this property in arrear for the years 1949-50 to 1953-54, which means that the receivers had not cared to pay the municipal taxes durir.g all these years.

The property was attached by the municipal corporation by means of an attachment notice dated July 20, 1955 for the arrears of the municipa.l taxes amounting to Rs. 543.79 ps.

A~ the municipal corporation threatened to sell the property pursuant to the attachment proceedings the purchaser instituted the suit (giving rise to this appeal) for a declaration that he was the owner of the property and that the arrears of municipal taxes due from Haji Nurmohammad Haji Abdulmian were not recoverable by attachment of the suit property in the plaintiff's hands and that the warrant of attachment of the property issued by the mun). cipal corporation was illegal and ultra vires. Permanent injunction restraining the municipal corporation from attaching the property for arrears of municipal taxes was also sought. The trial court declined the prayer for a declaration that the property was not liable to be attached for recovery of the arrears of municipal taxes.

But the warrant of attachment actually issued in this case was held to be illegal and void with the result that an injunction was issued restraining the municipal corporation from enforcing the impugned warrant of attachment against the plaintiff in respect of the suit property.

Both parties feeling aggrieved appealed to the District Court.

The Assistant Judge who heard the appeals dismissed both of them.

The plaintiff thereupon presented a second appeal to the Gujarat High Court which was summarily dismissed by a learned single Judge.

Leave tn appeal to a Division Bench under cl. 15 of the Letters Patent was however granted.

The Divisioir Bench hearing the Letters

5-1 S.C. lndia/71

SUPRllM! COURT REPORTS

[1971] SUPP.

C.R

Patent appeal in a fairly lengthy order allowed the plaintilf's appeal and decreed his suit holding that the plaintiff is the owner of the suit property and the charge of the municipal corporation for arrears of municipal tax is not enforceable against his property and also restraining the municipa1 corporation by a permanent injunction from proceeding to realise from this property the charge in respect of the arrears of municipal taxes.

On appeal in this Court three main questions were raised by Shri S. T. Desai, learned counsel for the appellant.

To begin with it was contended that there is no warranty of title in an auction sale. This general contention seems to us to be well-founded because it is axiomatic that the purchaser at auction sale takes the property subject to all the defects of title and the doctrine caveat emptor Oct the purchaser beware) applies to such purchaser. The case of the judgment debtor having no saleable interest at all in the property sold such as is contemplated by O. 21, R. 91, C. P. C. is, however, different and is not covered by this doctrine.

The second point canvassed was that there is an express provision in Section 141 (!) of the Bombay Provin cial Municipal Corporation Act, 1949 (hereinafter called the Bombay Municipal Act) for holding the present property to be liable for the recovery of municipal taxes and, therefore, though the property was subject only to a charge not amounting to mortgage and, therefore, involving no transfer of interest in the pro perty, the same could nevertheless be sold for realising the amount charged, even in the hands of a transferee for consideration without notice.

Section 141 of the Bombay Municipal Act is an express saving provision as contemplated by Section 100 of Trans fer of Property Act, contended Shri Desai.

This submission has no merit as would be clear from a plain reading of Section 100 of the Transfer of Property Act, 1882 and Section 141 of the Bombay Municipal Act, the only relevant statutory provisions.

Section 100 of the Transfer of Property Act dealing with 'charges' provides :

S. 100 "Where immoveable property of one person is by act of parties or operation of Jaw made security for the payment of money to another, and the transaction does not amount to a mortgage, the later person is said to have a charge on the property ; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.

Nothing in this section applies to the charge of a. trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force,

.MUN!C CORP. v. ABDULGAPUR (Dua, J.).

no charge shall be cnforctd against any property in the hands of a person to whom such property ha1 been tranaferred for consideration and without notice of the charge." This section in unambiguous language Jays down that no charge is enforceable against any property in the hands of a transferee for consideration without notice of the charge except where it• is otherwise expressly provided by any Jaw for the time being in force.

The saving provision of law must expressly provide for enforcement of a charge against the property in the hands of a transferee for value without notice of the charge and not merely create a charge.

We now turn to Section 141 of. the Bombay Provincial Municipal Corporation Act, 1949 to sec if it answers the requirements of Section 100 of Transfer of Property Act. This section rcada ·: -

Section 14 I. "Property taxes to be a first charge on premises on which they are assessed : (!) Property taxes due under this Act in respect of any building or lllllld shall, subject to the prior payment of the land revenue, if any, due to the State Government thereupon, be a first charge, in the case of any building or land held immediately from the Government, upon the interest in such building or land of the person liable for such taxes and upon the moveable property, if any, found within or upon such building or land and belonging to such person ; and, in the case of any other building or land, upon the said building or land and upon the moveable property, if any, found within or upon such building or land avn he.lnnQiTIQ to the person liable for such taxes.

Explanation.-The term "Property taxes" in this section shall be deemed to include charges payable under section 134 for water supplied to any premises and the costs of recovery of property-taxes as soecified in the rules.

(2) In any decree passed in a suit for the enforcement of the charge created by sub-section (!), the Court may order the paiyment to the Corporation of interest on the sum found to be due at such rat& as the Court deems reasonable from the date of the institution of the suit until realisation, and such interest and the cost of enforcing the said charge, including the costs of the suit and the cost of bringing the premises or moveable property in question to sale under the decree, shall, subject as aforesaid, be a fresh charge on such premises and moveable property along with the amount found to be due, and the Court may direct payment thereof to.be made to the Corporation out of the sale proceeds."

&7.

SUPRBMB COUllT REPORTS [1971] SUPP. s.c.ll.

Sub-section (!), as is obvious, merely creates a charge in express language.

This charge is subject to prior payment of land revenue due to the State Government on: such building or land. The section, apart from creating a statutory charge, does not further provide that this charge is enforceable against_ the property charged in the hands of a transferee for consideration without notice of the charge.

It was contended that the saving provision, as contemplated by Section 100 of the Transfer of Property Act, may, without using expr!JSS words, in effect provide that the property is liable to sale in enforcement of !he charge and that if this liability is fixed by a provision expressly dealing with the subject, then the charge would be enforceable against the property even in the hands of a transferee for consideration without notice of the charge.

According to the submission it is not necessary for the saving provision to expressly provide for the enforceability of the charge against the property in the hands of a transferee for consideration without notice of the charge.

This submission is unacceptable because, as already observed, what is enacted in the second half of Section 100 of Transfer of Property Act is the general prohibition that no charge shall be enforced against any property in the hands of a transferee for consideration without notice of the charge and the exception to this general rule must be expressly provided by law.

The real core of the saving provision of law must be not mere enforceability of the charge against the property charged but enforceability of the charge against th6 said property in the hands of a transferee for consideration without notice of the charge.

Section 141 of the Bombay Municipal Act is clearly not such a provision.

The second contention accordingly fails and is repelled.

The third argument, and indeed this was the principal argument which was vehemently pressed with considerable force by Shri Desai, is that the plaintiff must be deemed to have constructive notice of the arrears of municipal taxes and as an auction purchaser he must be held liable to pay these taxes and the property purchased must also be held subject to this liability in his bands.

In support of this submission he cited some decisions of our High Courts.

The first decision relied upon by Shri Desai is reported as Arumilli Suravya v. Pinisetti Venkataramanamma(') in which relying on Creet v. Ganga Ram Gool Rai(') it was observed by Horwill J., that Section 100 of the Transfer of Property Act does not apply to auction sales because the transfer within the meaning of the Transfer of Property Act does not include an auction sale. It was added that the position of a purchaser at an execution sale is the same as that of the judgment-debtor and his position is somewhat different from that of a

(!) A.I.R. 1940 Mad. 701.

(2) I.LR. [1937] l Cal. 203.

purchaser at a private sale.

Execution purchasers, according to this decision, purchase the property subject to all the charges and encumbrances legal and equitable which would bind the debtors.

We do not agree with the view taken in this decision. We however, do not consider it necessary to go into the matter at length because we find that this decision was expressly overruled by this

Court in Laxmi Devi v. Mukand Kunwar(1) and the High Court, relying on this Court's decision, had also repelled a similar contention pressed on behalf of the Municipal Corporation there.

This Court pointed out in Laxmi Devi's case(1) that the provisions of Section 2(d) of the Transfer of Property Act prevail over Section 5 with the result that the provisions of Section 57 and those contained in Chapter IV of the Transfer of Property Act must apply to transfer, by operation of law. Section 100, it may be pointed out, falls in Chapter IV.

Reliance was next placed on a Full Bench decision of the Allahabad High Court in Nawal

Klshore v. The Municipal Board, Agra ('). According to this decision the question of constructive notice is a question of tact which falls to be determined on the evidence and circumstances of each case.

But that Court felt that there was a principle on which question of constructive notice could rest, that principle being that all intending purchasers of the property in municipal areas where the property is subject to a municipal tax which has been made a charge on the property by statute have a constructive knowledge of the tax and of the possibility of some arrears being due with the result that it becomes their duty before acquiring the property to make enquiries as to the amount of tax which is due or which may be due and if they fail to make this enquiry such fa, ilure amounts to a wilful abstention or gross negligence within the meaning of Section 3 of the Transfer of Property Act and notice must be imputed to them.

The reference to the Full Bench in the reported case was necessitated because of conflict of judicial opinion between that Court and Oudh Chief Court. The earlier decision of a Division Bench in Municipal Board, Cawmpore v. Roop Chand Jain (') was overruled and the Bench decision of Oudh High Court in Municipal Board, Lucknow v. Ramjilal (') was approved. The next decision to which reference was made by Shri Desai is reported as Akhoy Kumar Banerjee v.

Corporation of Calcutta (').

In this case, after distinguishing a mortgage from a charge, it was observed that the statutory charge in that case could not be enforced against the property in the hands of bona fide purchaser for value without notice.

While dealing with the question whether the appellants in that case were purchasers for value without notice, it was observed that they had

(I) [196S] I S.C.R. 726.

(3) J.L.R. [1940] All. 669. (S) l.L.R. 42 Cal. 625.

(2) l.L.R. [1943] All. 453.

(4) I.L.R. [1916] 16 Lucknow 607.

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

not pleaded in their written statement that they were purchasers for value without notice.

Having not pleaded this defence they were held disentitled to avail of it.

Having so observed the Court dealt with the case on the assumption that the defence though not expressly taken in the pleadings was available to the defendants. The Court said :

"But even if we assume that the defence, though not expressly taken in their written statement, is available to the defendants, they are in a position of difficulty from which there is no escape. The appellants are private purchasers of the property and if they had enquired at the time of their purchase, they would have discovered that the rates were in arrears; as ai matter of fact. they would be personally liable under Section 223 for the arrears of the year immediately prior to the date of their purchase, and they admit that they have satisfied such arrears, though they do not disclose whether by enquiry they had ascertained the existence of the arrears before th.ey made the purchase."

The Court then proceeded to deal with the position of the vendor from whom the appellants had purchased the property in order to see if he could raise the defence of being a purchaser for value without notice. The appellant's vendor was a . mortgagee who had acquired title by foreclosure-an involuntary alienation by his mortgagor-and it was held that to him constructive notice could not be imputed to the same extent as to a purchaser at a private sale.

But had he made enquiries from the municipal authorities he could still have ascertained whether any arrears of consolidated rates were due.

When he had taken the mortgage he was aware that if the rates were not paid the arrears would be first charge on the property with the result that before becoming full owner by foreclosure he should have ascertained the true state of affairs. On this reasoning he was held to have constructive notice and the purchasers from him could not claim greater protection.

These circumstahces clearly disclose that the reported case is not similar to the one before us and is of little assistance.

Cltandu Ram v. Municipal Commissioner of Kurseong Municipality (') was the next decision cffed. The Bench in that case followed the Full Bench decision of the Allahabad High Court in Nawal Kishores case (supra).

A Division Bench of the Oudb Chief Court in Municipal Board, Lucknow v. Lala Ramji Lal (') disagreeing with the Bench decision of the Allahabad High Court in Roop Chand Jain's case (supra) observed that it must be presumed that a person who buys house property situate in a municipality is acquainted with the law by which a charge is imposed

(1) A.I.R. 1951 Cal. 398.

(2) A.I.R. 1941Oudh305.

on that property for the payment of taxes.

The charge havini: been expressly imposed by the Municipal Act upon the property for payment of municipal taxes the municipality was entitled to follow the property in the hands of a transferee who had not cared to make any enquiry as to whether the payment of taxes was in arrears.

The Court approved the Calcutta decision in Akhoy Kumar's case (supra).

The next decision cited is reported as Laxman Venkatesh Naik v. The Secretary of State for India(') but being a case. of takkavi Joans it is of no assistance in the present case.

We may now tum to the Bench decision of the Allahabad High Court in Roop Chand Jain's case (supra).

The reasoning for the view adopted there may be reproduced :

"A bona fide purchaser takes property he buys free of all charges of which he has no notice actual or constructive.

He is said to have constructive notice when ordinary prudence and care would have impelled him to undertake an enquiry which would have disclosed the charge. If for instance the charge ia created by a registered document then the purchaser would be held to have cons

tructive notice of that charge inasmuch as a prudent purchaser would in ordinary course search the registers before effecting the purchase.

There is no register, as far as we know, of arrears of taxes or of charges in respect thereof. It has not been shown that the municipality of Cawnpore intimate to the public in the "Press" or by other publication a list of the properties which are charged in respect of arrears of taxes. There is nothing upon the record to justify the conclusion that the defendants could have demanded any information from the municipality in regard to charges on immovable property within the municipal limits."

The Court then noticed the fact that the Kanpur Corporation had allowed 11 years' arrears of taxes to accumulate and it was observed that no intending purchaser was bound to presume that taxes upon the property, he contemplates purchasing had not been paid in the ordinary course, in the absence of special intimation by the municipality.

On this reasoning the suggestion of constructive notice was negatived.

According to Section 3 of the Transfer of Property Act which is described as interpretation clause, a person is said to have notice of a fact when he actually knows that fact or when but for wilful abstention from an enquiry or search which he ought to have made or gross negligence he would have known it. There

(1) XU B. L.R. 2S7.

SUPREME COURT REPORTS [1971) SUPP. s.c.11..,

are three explanations to this definition dealing with three contingencies when a person acquiring immovable property is to be deemed to have notice of certain facts. Those explanations are:

"Explanation /.-Where any transaction relating to immoveable property is required by law to be and has been affected by a registered instrument, any person acquiring such property or any part of, or share of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under subsection (2) of Section 30 of the Indian Registration Act,

1908, from the earliest da.te on which any memorandum of such registered instrument has been filed by any Sub- Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated :

Provided that-

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder.

(2) the instrument or memorandum has been duly entered or filec!. as the case may be, in books kept under section 51 of that Act and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.

Explanation II.-Any person acquiring any immoveable property or any sha.re or interest in any such property shall be deemed tor have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Explanation lll.-A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material.

Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud."

Now the circumstances which by a deeming fiction impute notice to a party are based, on his wilful abstention to enquire or search, which a person ought to make or, on his gross negligence.

Thi~ presumption of notice is commonly known as constructive notice.

MUNIC CORP. V. ABDULOAFUR (Dua, J.)

Though originating in equity, this presumption of notice is now a part of our statute and we have to interpret it as such. Wilful abstention suggests conscious or deliberate abstention and gross negligence is indicative of a higher degree of neglect. Negligence is ordinarily understood as an omission to take such reasonable care l\S under tbe circumstances is tbe duty of a person of ordinary prudence to take.

In otber words it is an omission to do something which a reasonable man guided by consideration which normally regulate the conduct of hum11n affairs would do or doing •omething which a normally prudent and reasonable man would not do. TLe question of wilful abstention or gross negligence and, therefore, of constructive notice considered from this point of view is generaUy a question of fact or at best mixed question of fact and law depending primarily on tbe facts and circumstances of each case and except for cases directly falling within the tbree explanations, no inflexible rule can be laid down to serve as a straight-jacket covering aU possible contingencies. The question one ha.s to answer. in circumstances like the present is not whether the purchaser had the means of obtaining and might with prudent cautirn have obtained knowledge of the charge but whether in not doing so he acted with wilful abstention or gross negligence. Being a question depending on the behaviour of a reasonably prudent man, the Courts have to consider it in the background of Indian conditions. Courts in India should, therefore, be careful and cautious in seeking assistance from English precedents which should not be blindlv or too readily foUowed.

Adverting now to the case before us, as already noticed, the property in question had vested in the receivers in insolvency proceedings since March, 1949 by an interim order, and in October, 1950 the original owner was adjudicated as an ir.solvent and the property finally vested in the receivers in insolvency.

The plaintiff purchased the property in November, 1954 dnd in our opinion it could not have reasonably been expected by him that tbe receivers would not have paid to the municipal corporation since 1949 the taxes and other dues which were charged on this property by statute. According to Section 61 of the Provincial Insolvency Act, 1920 the debts due to a local authority are given priority, being bracketed along witb the debts due to the State.

Merely because these taxes are charged on the. property could not constitute a valid ground for the official receiver not to discharge tbis liability.

In fact we find from the record that on January 15, 1951 the receivers had submitted a report to the insolvency court about their having received bill~ for Rs. 62&-3-0 in respect of municipal taxes of the insolvent's property and leave of the court was sought for transferring the said property to the names of the receivers in the municipal and Government records.

The court recorded an order on February 8.

SUPR!J.I! COURT Rl!PORTs [1971] SUPP. s.c.lt.

1951 that the municipal taxes had to be paid.

On the receivers stating that they did not possess sufficient funds the court gave notice to the counsel for the opposite party and on February 24, 19 51 made the following order :

"Mr. Pandya absent. The taxes have to be paid. The Receivers state that they can pay only by sale of some properties of the insolvent from which they want. Sanctioned.

The property in which the insolvent stays should first be disposed of.

The terms are accordingly so authorised."

It is not known what happened thereafter.

It is, however, difficult to appreciate why after having secured the necessary order from the court municipal taxes were not paid off by the receivers ; md why the municipal corporation did not pursue the matter and secure payment of the taxes due.

May be that the municipal corporation thought that since these dues were a charge oa the property they need not pursue the matter with the receivers and also need not approach the insolvency court.

If so, then this, in our opinion, was not a proper attitude to adopt.

In any event the plaintiff could not reasonably have thought that the municipal corporation had not cared to secure payment of the taxes due since 1949.

On the facts and circumstances of this case, therefore, we cannot hold that the plaintiff as a prudent and reasonable man was bound to enquire from the municipal corporation about the existence of any arrears of taxes due from the receivers.

It appears from the record, however, that he did in fact make enquiries from the receivers but they did not give any intimation. The plaintiff made a statement on oath that when he purchased the building in question it was occupied by the tenants and the rent used to be recovered by the receivers.

There is no rebuttal to this evidence.

Now. if the receivers were receiving rent from the tenants. the reasonable , assumption would be that the municipal taxes which were a charge on the property and which wi!re also given priority under Section 61 of the Provincial Insolvency Act,

1920, had been duly paid by the receivers out of the rental income.

The plaintiff could have no reasonable ground for assuming that they were in arrears. From the plaintiff's testimony it is clear that he did nevertheless make enquiries from the receivers if there were any dues against the property though the enquiry was not made specifically about municipal dues.

Apparently he was not informed about the arrears of municipal raxes.

This seems to us explainable on the ground that the receivers bad, after securing appropriate orders, for some reasons not clear on the record, omitted to pay the arrears of municipal taxes and they were, therefore, reluctant to disclose this lapse on their part.

On these facts and circumstances we do not think that the plaintiff could reasonably be fixed with any constructive notice of the arrears of municipal taxes

MUNIC COl\P. P. ABDULGAFU!. (Dua, J.)

since 1949.

So far as the legal position is concerned we are inclined to agree with the reasoning adopted by the Allahabad High Court in Roop Chand Jain's case (supra) in preference to the reasoning of the Full Bench of that Court in Nawal Kishore's case (supra) or of the . Division Bench of Oudh Chief Court in Ramii Lal's case (supra).

We do not think there is any principle or firm rule of law as suggested in Nawal Kishore's case (supra) imputing to all intending purchasers of property in municipal area where municipal taxes are a charge on the property. constructive knoweldge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arreairs. The question of constructive knowledge or notice has to be determined on the facts and circumstances of each case. According to the Full Bench decision in Nawal Kishore's case (supra) also the question of constructive notice is a question of fact and we do not find that the material on the prCient record justifies that the plaintiff should be fixed with any constructive notice of the arrears of municipal taxes.

We may add before concluding that as the question of constructive notice has to be approached from equitable considerations we feel that the municipal corporation in the present case was far more negligent and blameworthy than the plaintiJI. We have, therefore, no hesitation in holding that the High Court took the correct view of the legal position with the result that this appeal must fail and is dismissed.

As there is no representation on behalf of the respondent there will be no order as to costs.

V.P.S.

Appeal dismissed.

AHMEDABAD MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD

v.

HAJJ ABDULGAFUR HAJI HUSSENBBAl

II. 0. DUA

V. BHARGAVA, JJ.

Transfer of Property Act

s. 100

s. 141(1)

s. 100

s. 141(1)

s. 100

Property Act, 1882

Section 100

Transfer of Property Act

S. 141

s. 100

Transfer of Property Act

s. 3

Transfer of Property Act

s. 61

Article 133(1)(c)

Constitution of India

cl. 15

Section 141

Section 141

Section 100

Trans fer of Property Act

Section 100

Transfer of Property Act, 1882

Section 141

Section 100

Transfer of Property Act

S. 100

Section 141

Section 100

Transfer of Property Act

Section 14

section 134

Section 100

Transfer of Property Act

Section 100

Transfer of Property Act

Section 141

Section 100

Transfer of Property Act

Transfer of Property Act

Section 2(d)

Transfer of Property Act

Section 5

Section 57

Section 100

Section 3

Transfer of Property Act

Section 223

Section 3

Transfer of Property Act

Section 30

Indian Registration Act

Indian Registration Act, 1908

section 51

section 55

Section 61

Provincial Insolvency Act, 1920

Section 61

Provincial Insolvency Act