STATE OF MAHARASHTRA

LAXMAN ABAJI Ii: ANR.

A.j1rll 20, 1!171

[C. A. VAIDIALIMGAM AND A. N. RAY, JJ.)

Hyderabad Abolition of Inams Act, 1954 (Act VIII of 1955)- Lant1 lord and Tenant-Relationship if continued to subsist between date of abolition of lnams vesting land in .rhe state and date of coming into force uf the entire A.ct.

On tho question whether tho relationship of landlord and tenant continued to subsist between July 20, 1955 when tho inams wore abolished and tho land vested in tho State under tho Hyderabad Abolition of loams Act, 1954 (VIII of 19.SS) and July I, 1960 when a notification under '

1(3)(b) of the Act made the entire Act applicable,

HELD: Though the loams were abolished and the land vested in the State bv reason of s. 3(1) of the Act the rights and interests ol landlord and tenant mentioned in s. 3(2) (b) wore preserved by s. 33 inasmuch as s. 3(2) els. (d), (g}, (h) and (i) did not come into effect until July I, 1960.

The crucial date for grant of o'cupancy rights under the 1955 Act is July 1, 1960 when the entire Act including, in particular, the provisions regard ing grant of occupancy rights and els. (d), (g), (h) and (i) of s. 3(2) came into effect. The relation between landlord and tenant ceased on July J,

1960 and if any tenant surrendered possession prior to July I, 1960, and the inarndar accepted such surrender and remained in possession of the land on the relevant date, i.e., July I, 1960, the inamdar would be entitkd to grant of occupancy rights. On the other hand if the tenant claimed to be in possession of the land on the relevant date and the inamdar also claimed to be in possession the Government will have to ascertai:t as to who was lawfully in possession on the relevant date. [416E; 417G].

Dattatraya Sadashiv Dand v. Ganpati Raghu Gao/I, 67 B.L.R. 521, approved.

Ji'

CIVIL APPELLATE JuRISDICTION : Civil Appeals Nos. 2531

and 2533 of 1966.

Appeals from the judgments and orders dated April I, 1965 of the Bombay High Court in Special Civil Applications Nos. 804 and 697 of 1964 respectively.

M. C. Bhandare, Badri Das Sharma for S. P. Nayar, for the appellant (in both the appeals).

W. S. Barlingay and A. G. Ratnaparkhi, for respondent No. 1 (in C. A. No. 2533 of 1966).

B The Judgment of the Court was delivered by Ray, J.-These two appeals are by certificate from two judgmts dated I April, 1965 of the Bombay High Court.

M~ASHTllA V. LAXMAN{.Rqy, J.) 41~

lloth the appeals turn on the question as to wJleUier the la- A. tionsbip of llindlord and tenant continued to subsist between 20 J .uly, 1955 when the irt<Ulls were abolisl)ed by and the land vested

in the State under the Hyderabad Abolition of loams Act, 19.54 being Act VIII of 1955 (hereinafter referred to as the 1955 Act) and I July, 1960 when a notification under section 1(3) (b) of the• 1955 Act made the entire 1955 Act applicable. , B

The contention on behalf of the State was that when the 1955 Act C<Ulle into existence on 20 July, 1955 in<U11s were abolished and theland vested in the State, and, therefore, the relationship between the in<U11dar landlord and the tenant in respect of the in<Ull land ceased.

The contention on behalf of the in<U11dar and the tenant on the other hand was that though inams were abolished and the !! land vested in the State on the coming into force of the 1955 Act on 20 July, 1955 the relationship of inamdar landlord and tenant continued upto 1 July, 1960 because all the provisions of the 1955 Act did not come into effect until 1 July, 1960 and those which did not come into operation had the effect of saving and preserving the relationship between in<U11dar landlord and tenant. The D High Court upheld the contention of the in<U11dar landlord and the tenant.

The 19.55 Act received the assent of the President on 16 July, 1955 and was published in the Hyderabad Gazeue Extra-ordinary on 20 July, 1955.

Under section 1(3) (a) of the said 1955 Act :E sections l, 2, 3 (except clauses (d), (g), (h) and (i) of sub-section

(2) of section 3), sections 30 to 34 .(both inclusive), section 35 to the extent to which it enabled rules to be made for the purposes of the aforesaid sections, section 36 and section 37 of the 1955 Act came into force on the date of the publication of the 1955 Act in the official Gazette.

The other important provision is section I (3) (b) .of Uie 19.55 Act which enacted that !he rest .of the Act J' "shall come into force on such date as the Government may, by

notifi.qi, tion in the oltiial Gazette, appoint in this behalf".

It may be stated here that the short title of the 1955 Act was Hrabad Abolition of loams Act, 1954.

By .!he Hyderabad AAbolition haof Inedams (AmH edndmbent) AAct, 1!959 the title of the 1955 G ct was c ng to y era ad bo 1tion of loams and Cash Grants Act, 1954.

The Amendment was by reason of the Act being made applicable to "cash grants and inams in the nature of community serv'ce, inams and watans" by introducing >"Uh-section

(2A) in section _ of the 1955 Act The 1959 Amendment Act came into force on 1 July, 1960 by a gazette notification dated 3 June, 1960. !here was another 'gazette notification on 3 June, ll 1960 No. HDA-1060-IV-(b)..L-that in exercise of the powers conferred by clause <bl of sub-section (3) of section 1 of the Hyderabad

SUPRElllB OOURT REPORTS [1971] SUPP. s.c.R.

Abolition of Inams and Cash Grants Act, 1954 the Government of Maharashtra appointed l July, 1960 to be the date on which the rest of the said Act "shall come into force".

That is how all the provisions of the 19.55 Act came into force on l July, 1960.

The State relied on section 3(1) of the 1955 Act in support of the proposition that the inams were abolished and the land vested in the State, and, the1-efore, the relationship of landlord and tenant came to an end.

It is noticeable that section 3(2) of the 1955 Act provided "save as expressly provided by or under the provisions of the Act and with effect from the date of vesting, the consequences mentioned in clauses (a) to (i.) will ensue". The important clauses in section 3(2) of the 1955 Act are as follows:-

"(b)-All rights, title and interest vesting in the inamdar, kabiz-e-kadim, permanent tenant, protected tenant and non-protected tenant in respect of the inam land, other than the interests expressly saved by or under provisions of this Act and inclt1ding those in all communal lands, cultivated and uncultivated lands .whether assessed or not), waste lands, pauture lands, forests, mines and minerals, quarries, rivers and streams, tanks. and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State free from all encumberances ;

(d) -all rents artd land revenue including cesses and royalties, accruing in respect of such inam lands, on or after the date of vesting, shall be payable to the State and not to the inamdar, and any payment made in contravention of this clause shall not .be valid.

(g) -the inamdar and any other person whOse rights have vested in the State under clause (b) shall be entitled only to compensation. from the Government as provided for in this Act ;

(h) -the relationship with regard to inam land as between the inamdar and kabiz-e-kadim, permanent tenant, protected tenant or non-protected tenant shall be extinguished ;

(i) - the inamdar, kabiz-e-kadim, permanent tenant, protected tenant, and a non-protected tenant of inam lands and .any persont holding under them and a holder of a inam, shall as against the Government, be entitled only to such rights and privileges and be subject to such conditions as are pmvided for under this Act and any other rights and privifoges which may have accrued to any

of them in the inam before the date of vesting against the inamdar shall cease and shall not be enforceable against the Government or the inamdar".

Among these clauses, clause (b) which came into effect on 20 July, 1955 saved from vesting in the State the interests expressly saved by or under the provisions of the 1955 Act.

As to what interests were saved or protected from being vested in the State would be found in section 33 of the 1955 Act and clauses (b), (d), (g), (h) and (i) of section 3(2) of the 1955 Act.

Section 33 of the .1955 Act is as follows :-

"Nothing in this Act shall in anyway be deemed to affect the application of the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950, to any inam or the mutual rights and obligations of an inamdar and his tenants, save in so far as the said provisions are in anyway inconsistent with the express provisions of the AcC'

Section 33 therefore provided first that the application of the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950 to any inam was not to be affected by the 1955 Act save in so far as the said provisions were inconsistent with the provisions of the said 1955 Act Secondly, section 33 saved the mutual rights and obligations of an inamdar and his tenant.

It would, therefore, follow that the combined effect of clause (b) of Section 3(2) and of section 33 of the 1955 Act is that the mutual rights and obligations of the inamdar and the tenant were not affected by the 1955 Act.

The rights and obligations of the inamdar would be inter alia to receive rent and land revenue.

The rights of the tenant on the other hand would be primarily to continue in possession of the land and to enjoy its income subject to liability to pay rent and deliver possession to the inamdar in accordance with the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950 in so far as the same were applicable.

Oauses (d), (g), (h) and (i) of section 3(2) of the 1955 Act did not come into effect on 20 July, 1955. Those clauses came into effect only on 1 July, 1960.

These clauses dealt with some of the mutual rights and obligations of the landlord and tenants which were preserved until 1 July, 1966.

Gause (d) deals with rent and land revenue including cesses and royalties in respect of inam lands on or after the date of vesting -to be payable to the State and not to the inamdar. In view of the fact that this clause was not brought into operation until

S_UPRllJ, IE COURT REPORTS

[1971] SUPP. S.C.R.

l July, 196() rent jn respect of inam lam! was not payable to the State on or after tb~ date of vesting, namely, 20 July, 1955 until the coming into effect of clauses (d), (g), (h) and (i) on I foly, 1960.

Clause (h) dealt wiith extinction of relationship as between landlord and kabiz-e-kaclim, permanent tenant, protected tenant or non-protected tenant wi.th regard to inam land.

Kabiz-e-kadim, permanent tenant, prote:cted tenant and non-protected tenant are all defined in section 2 of the Act.

Broadly stated, they are all different categories of tenant.

In view of the fact that clause (d)- did not come into effect on 20 July, 1955 it follows that the legislative intention was that the _relationship between inamdar and tenant with regard to inam land would continue and be not extinguished until the provision was made applicable on I July, 1960.

Clause (i) provided that with effect from the date of vesting rights and p_rivileges which might have accrued to any person in inam before the date of vesting against the inamdar would cease and would not be enforceable against the Government or the inamdar.

Clause (i) did not con; ie into elfect until I July, 1960 and is another illustration of the saving of mutual rights and obligations .of -the landlord _and the t!mant.

It therefore follows that though the inams were abolished _and the land vested in !he State by reason of section 3(1) of the 1955 Act the rights and internsts of landlord and tenant mentioned ln section 3(2) (b) of the 1955 Act were preserved by section 33 of the 1955, Act inasmuch as section 3(2) clauses (d), (g), (h) and \i) of the 1955 Act did not come into effect until I July, 1960.

Clause (b) of si:otion 2 of the 1955 Act defined the expression "date of veting".

The Hyderab<1d Abolition of lnams (Amen<;!- ment) Act, 1956 (Act .10 of 1956) (hereinafter called the 1956 Amendment Act) which was deemed to have come into force on 20 July, 1955 provi<;!ed as follows :-

"Notwithstanding anything contained in the principal Act, with effect from the date of publication of that Act in _the official Gazette and till !he comwencement of the provisions mentioned in clause (b) of sul>-section (3) of section I of that Act, the full Jan(! revenue, nayaable in respect of every inam abolished and vesting in the Government und•!r section 3 of that Act, shall be recovered from !he inamdar of such inam as if he were the occupant of such land and, .on the commencement of the said provisions of that Act, it shall be recovered in acco.rdanc.e with those provisions".

Section 4 of the 1956 Amendment Act provided for recovery of land revenue from the inamdar with effect from the date of publication of the 1955 Act, namely, 20 July, 1955.

Section 4 -of the 1956 Amendment Act was to remain effective and operative till the commencement of the provisions mentioned in section l (3) (b) of the 1955 Act, namely, 1 July, 1960.

Section 4 of the 1956 Amendment Act provided for recovery of land revenue from' the inamdar as if he were the occupant of such land.

The words "as if he were the occupant of such land" indicate that the inamdar was to be treated in possession of the inam.

This was necessary because the grant of occupancy rights mentioned in sections 5 and 6 of the 1955 Act did not come into effect until 1July,1960.

The dominant idea was to continue the relationship of landlord and tenant in respect of the inam land and to look to the inamdar only for land revenue by treating him to be an occupant.

Sections 4, 5, 6, 7 and 8 of the 1955 Act deal respectively with registration of inamdars, kabiz-e-kadim, permanent tenant, protected tenant and non-protected tenant as occupants.

These occupancy rights under sections 4 to 8 could not be granted before l July, 1960 when those sections came into force. Upto 1 July.

1960 the mutual rights _and obligations of the landlord and the tenant were preserved by providing inter alia in section 33 of the 1955 Act, the application of the Tenancy Act. Again, after the abolition of the inams by the 1955 Act the right of the landlord to be in possession was preserved. Similarly, the right of the tenant to continue in possession was preserved. Neither the right of the landlord nor the right of the tenant was any right which flowed from any authority or grant of the Government. , These rights emanated from the protective provisions of the statute. It is be;; ause of the continuance of the mutual rights and obligations of the landlord and the tenant that section 4 of the 1956 Amendment Act recognised the inamdar "as if he were in occupation of the land" for the purpose of land revenue.

This liability of the inamdar to pay land revenue was provided in order to enable !lie inamdar to enjoy all his rights including that of revenue in the inam land.

It may also be noticed here that although the scheme of the 1955 Act was to abolish the inams and to vest the land in the State, there was no provision in the Act empowering the Government to resume possession.

The relationship between inamdar and his tenant came to an end on 1 July, 1960 when the State by reason of the coming into force of sections 4 to 8 of the 1955 Act granted occupancy rights to persons mentioned in those sections.

In Civil Appeal No. 2531 of 1966 respondent No. 2 Gajya was inamdar of survey No. 22 measuring 28 acres 15 guntbas 27-1 S.C.!ndia/71

4i8 SUPREME COURT 11.BPORlll [1971] SUPP. s.c.R.

situated at Azambag Village, '!aluka Gangakhed at Hyderabad.

Respondent No. 1 Laman claimed to be a tenant on the basis of the lease executed by respondent No. 2 on 9 April, 1950. After I July, 1960 the Tahsi!dar of Gangakhed too)<: necessary steps to co.nfer the occupanc)'. nghts on respondent No. 2 in regard to the said land as he was m -possession of the land on the date of vesting, namely, 20 July, i 955.

Respondent No. 1 objected to the same and . claimed that he was entitled to the occupancy rights under section 6 of the Act as he was lawfully in possession of the said land on 1 July, 1960.

The Tahsildar by his order dated 20 October, 1962 rejected the application of respondent No. 1 and conferred the occupancy rights on respondent No. 2 as the latter was .in possession of the disputed land on the date of vesting. Res pondent No. I being aggrieved by the order preferred an appeal to the State Government.

The appeal was dismissed on 24 January, 1964.

Respondent No. 1 thereafter filed an application under Article 227 of the Constitution in the Bombay High Court.

The High Court by an orde1 dated 1 April, 1965 set aside the order made by the Government and the Tahsildar and remanded the matter to the Tahsildar to hear all parties , in<.1uding the inamdar and thereafter decide who was .lawfully in possession of the land on I July, 1960.

The High Court took the view that the crucial date for conferment of occupancy rights under the 1955 Act would be 1 July, 1960 when the entire 1955 Act came into operation and the relationship of landlord and tenant which was preserved even after the date of vesting,. namely, 20 July, 1955 came to an end on 1 July, 1960.

In Civil Appeal No. 2533 of 1966 respondent No. 1 was the inamdar of three pieces of land measuring In all 69 acres and 3 7 gunthas situated at village Paranda, Taluka Paranda, district Osmanabad.

Respondent No. 2 was the tenant of respondent No.

I in respect of those lands and was in possession of those lands on 20 July, 1955.

Some time in the months of May and June, 1956 respondent No. 2 'oluntarily surrendered his tenancy rights in the land to respondent No. 1.

The surrender was accepted by the inamdar. The posse:>sion of the land was delivered to respondent No. !.

After the coming into effect of the entire 1955 Act on I July, 1960, the Tah:>ildar notified that respondent No. 2, the tenant was entitled to o:cupancy rights under the provisions of the 1955 Act.

Respondent No. 1 objected and claimed that he was entitled to the occupancy rights of the land under section 6 of the 1955 Act as he was lawfully in possession of the land on 1 July, 1960 and the respondent No. 2 had surrendered his tenancy rights in 1956.

The Tahsildar by his order dated 30 June, 1963 conferred the occupancy :rights on respondent No. 2, the tenant as he was in possession on 20 July, 1955. Respondent No. I, the inamdar preferred an appeal to the State Government. The State

MAHARASHTRA V. LAXllAN (Ray, J.)

Government rejected the appeal on 24 January, 1964. The inam- .dar thereafter made an application to the Born bay High Court under Article 227 of the Constitution.

The High Court by an order dated 29 March, 1965 held that the material date for the purpose of grant of occupancy rights was 1 July, 1960 and not the date of vesting of the land in the State on 20 July, 1955.

The High Court further held that on I July, 1960 the inamdar was lawfully in possession of the land.

The High Court directed that the Government should recognise the inamdar as occupant under section 6 of the 1955 Act.

The High Court was right in both the orders.

The crucial date for grant of occupancy rights under the 1955 Act is I July,

1960 when the entire 1955 Act including in particular the provisions regarding grant of occupancy rights and clauses (d), (g), (h) and (i) of section 3(2) of the 1955 Act came into effect. The Government became entitled to the possession of the land. The Government became entitled to -grant of occupancy rights.

The relationship between landlord and tenant ceased on I July, 1960.

If any tenant had surrendered possession prior to 1 July, 1960 as happened in Civil Appeal No. 2533 of 1966 and the inamdar accepted such .. surrender and remained in possession of the land

on the relevant date 1 July, 1960 the inamdar would be entitled to grant of occupancy rights.

On the other hand, if the tenant claimed to be in possession of the land as in Civil Appeal No. 25311

of 1966 on the relevant date 1 July, 1960 and the inamdar also claimed to be in possession, the Government will have to ascertain as to who was lawfully in possession on the material date I July, 1960.

The Bombay High Court in Dattatraya Sadashiv Dhand v. <Janpati Raghu Gao/I (') held that the relationship of landlord and tenant continued up to 1 July, 1960. We are in agreement with the decision on that point.

For these reasons the appeals fail and are dismissed with costs, as of one hearing fee.

K. B. N.

Appeals dismissed.

G ---------

(I) 67 Dom. L. R. 521.

STATE OF MAHARASHTRA

A. N. RAY, JJ.

Hyderabad Abolition of Inams Act, 1954

s. 3(1)

s. 3(2)

s. 33

s. 3(2)

s. 3(2)

section 1(3)

section 1(3)

section 3

sections 30 to 34

section 35

section 36

section 37

Cash Grants Act, 1954

section 1

section 3(1)

section 3(2)

section 3(2)

section 33

section 3(2)

Section 33

Section 33

section 33

Section 3(2)

section 33

section 3(2)

section 2

section 3(1)

section 3(2)

section 33

section 3(2)

section 3

Section 4

Section 4

Section 4

sections 5 and 6

Sections 4, 5, 6, 7 and 8

sections 4 to 8

section 33

section 4

sections 4 to 8

section 6

Article 227

section 6

Article 227

section 6

section 3(2)


M. GURUMOORTHY

ACCOUNTANT GENERAL ASSAM & NAGALAND & ORS.

April 21, 1971

(S. M. SIKRI, C. J., G. K. MITTER, K. S. HEGDE, A. N. GROVE!\ ANO.

P. JAGANMOHAN REDDY, JJ.J

Constitution of India, 1950, Art. 229-Appointment of Court emptu. yee1 by High Court-Government while sanctioning posts cannot lay dow1r condiiions on which appointments are to be made to said posts.

The appellant was appointed Secretary to the Chief Justice of Assam with effect from August z~., 1956 against a permanent post sanctioned by the State Government. Thereafter the stenographers' service in the High Court 'Nas reorganised with the sanction of the State Government. Under

the reorganisation scheme one of the seven posts of stenographer was to be that of Selection Grade Stenographer. On April 27, 1958 the Government informed the Registrar that a stenographer whether of Selection Grade, Grade I (Senior) or Grade II when attached to the Chief Justice as Private Secretary was to have gazetted status. The letter went on to say: "Government's sanction for the selection Grade Stenographer was for the post of the Secretary to the Chief Justice-cum-Stenographer only and not for an additional Selection Grade Post." On May 7, 1959 the Chief Justice appointed the appe.llant as Secretary-cum-Selection Grade Stenographer after merger of the two posts. The order was to take effect retrospectively from the date of the appellant's appointment as Secretary. The State Government objected to the appointment on the ground that the appointment of the appellant -was to the post of Private Secretary exclusively and that the post of Secretary could not be merged with that of Selection Grade Stenographer. The controversy not having been resolved the Accountant General under the Government's instructions withheld the appellant's pay-slips. In a wrl! petition filed by the appellant Nayudu J. and Dutta J. took different views, the former against the appellant and the latter in his favour. The third Judge dismissed the appellant's petition.

In appeal by certillca!e,

HELD: (i) Dutta J. was right in holding that the Government bad authority to sanction the post but it could not interfere with the choice of the incumbent which undoubtedly was to be of the Chief Justice under Art. 229 of tho Constitution. [430G-H].

Clause (I) of the Art. 229 provides that appointments of officers and servants of a High Court shall be made by the O>ief Justice of the Court or such other Judge or oflicer of the Court as he may direct i.e. his nominee. The proviso emp::>wers the Governor of the State to require by Rule in certain cases to 1nake appointments after consultation with the State Public Service Commission. Clause (2) of the Article contains twr; important provisions.

The first is that conditions of service of officers and servants of a High Court shall be such as may be prescribed by Rules made by the Chief Justice or his nominee. This is however subject to provisions of any law made by the legislature of the St!.te. The second is that the Rules so far as thcy relate to salaries, allowance and pensions require the approval of the Governor. [427H-428BJ.

Thus cl. (1) read with cl. (2) of Art. 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court This is subject to any legislation by the

State Legislature but only in respect of conditions of service.

[429AJ

Ia the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under cl. (1). The •P proval of the Governor as noticed in the matter of the Rules is confined only to such rules as relate to salaries, allowances, leave or pension. This exception had to be made because the finances have to be provided by the Govern1r:ent and to the extent there is any involvement of expense the Government has to 'approve of it.

[429B; 430A]

The object of Art. 229 is to secure and maintain the indepeodenre of the Higl! Courts. The anxiety of the Constitution makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension to or in respect of officers and servants of the Court at the same level as the salaries and

allowancs of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Under the provisions of Art. 229(3) and Arts. 202, 203 and 204 all these expenses are charged on and appropriated from tho Consolidated Fund of the State.

[428C-H]

[Provisions of Art. 229 contrasted with those of Art. 148 relating to Auditor General of India and Art. 187 relating to the staff of the House o.f Legislature.] [429E-H]

(iii) On the facts of the present case it could not be said that there was any financial burden involved in tho appointment of tho appellant as Secretary-cum-Selection Grade Stenographer and it was difficult to understand ho\v the Government could interfere in the choice of the person who was appointed or insist on his having certain type of qualifications. The post of selection grade stenographer-cum-secretary to .Chief Justice had been sanctioned vide the letter dated April 27, 1959. The appellant was appointed to that post by the Chief Justice who was competent to do so under Art. 229. If there were any technical difficulties they could be easily sorted oui by mutual cooperation which is essential between the Chief Justice of, the High Court and the State Government in such matters.

The unusual step of tho Accountant General withholding the pay slips under the d!rections of the Government bad no legal justification or warrant. [431G-432A]

OVJL APPELLATE JURISDICTION : Civil Appeal No. 2023 of 1968.

Appeal from the judgment and order dated May 9, 1968 of the Assam and Nagaland High Court in Civil Rule No. 377 of 1965.

S. V. Gupte, R. B. Datar and S. N. Prasad, for the appellant.

M. N. Phadke and Naunit Lal, for respondents Nos. I and 2.

SUPRE;\IE COURT RBPORTS .[1971) SUPP. S.C.ll.

A The Judgment of the Court was delivered by

Grover, J.-This is an appeal by certificate from a judgment of the High Court of Assam & Nagaland dismissing a petition filed by the appellant unde:r Article 226 of the Constitution.

It is necessary to set out the facts and the relevant correspon dence in order to determine the points which have to be decided.

The Assam Government had sanctioned the post of Secretary to the Chief Justice on a temporary basis with a pay scale of Rs. 400- 2().500 for a period of one year with effect from July 13, 1948. It appears from the letter of the Registrar of the High Court to the Secretary, Judicial Department, dated August 25, 1955 that although the said post had been sanc:tioned but there was hardly sufficient work for a whoile time Secretary at that time.

The post was not filled up and the: duties of the Secretary were performed by the Stenographer attached to the Chief Justice. He got a special pay of Rs. 50 per mensem which had been sanctioned by the Government in 1950.

This arrangement continued till February 20.

1955. From February 21, 1955 a Lower Division Assistant was appointed to perform the duties of Private Secretary in addition to his own duties. He also got a special pay of Rs. 50 per mensem.

By the aforesaid letter th~ view of the Chief Justice was conveyed that services of a whole time Secretary were indispensible and necessary for proper discharge of administrative functions and work of a confidential character which had gradually Increased.

Request was, therefore, made to the Government to sanction the post of a whole time Secre:tary to the Chief Justice permanently on the same scale which had been sanctioned in 1948.

It may be mentioned that at that time the Stenographers' Service in the High Court consisted of 7 permanent posts.

There was one temporary post of Secretary to the Chief Justic1:.

Out of the 7 permanent posts there were 4 posts of Stenographer Grade I, and 3 posts of Stenographer Grade II.

It seems that the Government had reorganised the Secretariat Stenographers Service with effect from May 21, 1955.

The Selection Grade Stenographer was given the scale of pay of Rs. 400-20-600 plus allowances.

On February 14, 1956 the Registrar addressed a letter to the Chief Secretary saying that the Chief Justice had reorganised the Stenographers Service in the High Court (presumably on the same lines as had been done by the Government) with a view to providing them with sufficient incentive.

There was to be a selection grade Stenographer in the scale of pay of Rs. 400-20-600 plus allowances and there were to be 3 posts of Stenographer Grade I (Senior).

One post of Stenographer Grade I (Junior) and 2 posts of Stenographers Grade II.

In other words there wer:~ 7 posts of permanent Stenographers in addition to the post of a Secretacy. On April 16, 1956 the Government wrote to the Registrar conveying the sanction of

the Governor to the creation of a post of Secretary to the Chief Justice for the time being in the same scale as before subject to the revision by the Pay Committee.

The appellant was originally working as a Stenographer in the Ministry of Law, New Delhi, and had been confirmed as a Stenographer in the Income tax Appellate Tribunal. Delhi Branch, with effect from July I, 1952.

It is stated that on the basis of a competitive examination and interview the Chief Justice appoint ed him as his Secretary temporarily with effect from the date on which he was appointed to the post on a scale of Rs. 400-20-500,

by an order dated July 30, 1956. By a letter dated April 6, 1953 the Government intimated to the Registrar that the Governor had agreed to the proposed reorganisation of the Stenographers Service in the High Court with effect from May 21, 1955 "subject to the condition that the procedure of recruitment, promotion etc. should be in the same or similar manner as laid down in the Government resolution ............ dated October 22, 1955". The pay scales were to te same as accepted by the Government on the recommendation of the Pay Committee. • The Registrar addressed a letter on October 3, 1958 to the Government pointing out that the conditions which had been imposed relating to the procedure of recruitment, , promotion etc. could not be so imposed in view of the provisions of Article 229 of the Constitution as it was for the Chief Justice to regulate the conditions of service of the officers and employees of the High Court.

The Court had framed its own Rules in that behalf.

The Government was requested to waive the conditions as laid down , in Government resolution in so far as the reorgani sation of the Stenographers Service of the court was concerned and to issue revised orders.

The High Court also asked for a clarification on the point whether the Government sanction referred to the post of the Secretary to the Chief Justice-cum-Stenographer or the separate post in the selection grade of Stenographer (letter from the Registrar dated December 16. 1958).

On, April 27, 1958 the Government informed the Registrar that a Stenographer whether of the selection grade, Grade I (Senior) or Grade II when attached to the Chief Justice as Private Secretary was to have the Gazetted status.

The following portion of that letter deserves to be parti cularly noticed :

"Government's sanction for the Selection Grade Stenographer was for the post of the Secretary to the Ch!ef Justice-cum.Stenographer only and not for an addi tional Selection Grade post"

On May 7, 1959 Shri C. P. Sinha the then Chief Justice of the High Coun of Assam passed two orders which may be reproduc ed :- (I) "In exercise of the powers conferred on me under Art 229 of the Constitution of India, read with (I) Rule

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

11 of the Assam High Court Appointment and Conditions of Service Rules; (2) Letter No. LLJ. 74/56/26 dated the 6th August 1958; and (3) Letter No. LLJ 74/56/36 dated the 27th Ap1il 1959 of the Government of Assam, Law Dept!., I hereby direct that the post of Secretary to the Hon'ble Chief Justice be merged into the post of Selection Grade Stenographer, with effect from 24th August, 1956 the date when the present incumbent, Sri M. Gurumoorthy was appointed.

I further direc1: that the pay scale of the Secretary to the Hon'ble Chief Justice be revised to Rs. 450-30..600 p.m. with effect from 1st October 1956 as recommended by the Pay Committee and accepted by the Government."

(2) "In exercise of the powers conferred on me under Article 229 of the Constitution of India, read with Rule 5(i) Part II of the Assam High Court Appointment and Conditions of Service Rules, I hereby appoint Sri M.

Gurumoorthy, as Secretary to the Hon'ble Chief Justice of Assam-cum-Selection Grade Stenographer, in a substantive capacity in the pay scale of Rs. 450..30-600 p.m. with effect from 24th August, 1958. Shri M. Gurumoorthy will be deemed to have been placed on probation with effect from 24th August 1956, under Rule 4(ii) Part II of the Assam High Cottrt Appointment and Conditions of Service Rules."

The Jetter of the Registrar dated December 23, 1959 to the Government referred to the material correspondence which led to the passing of the order by the Chief Justice dated May 7,. 1959 by which the appellant was a.ppointed as Secretary to Chief Justicecum-Selection Grade Stenographer substantively with effect from August 24, 1956. In this letter sanction was asked for the post of one pre-reorganisation Grade I Stenographer (Grade I Junior) with effect from August 24, 1956.

It is noteworthy that prior to the orders of the Chief Justice dated May 7, 1959 there were seven posts of Stenographer of all grades and one temporary post of Secretary to the Chief Justice. After the appointment of the appellant as Secretary-cum-Selection Grade Stenographer substantively only 6 posts of Stenographer were left and therefore the High Court asked for sanction for the post of a Stenographer as above.

As stated in para. 27 of the: writ petition the Accountant General was fully satisfied about tbe validity of the order dated May 7, 1959 passed by the Chief Justice and the necessary pay slips authorising the appellant to draw salary in the scale of Rs. 450-30..600 were issued from time to time by the Accountant General with effect from October l, 1956.

This was admitted in the return,

GURUMOORTHY \'.ACCT. GENERAL (Grover, J.)

para. 12, but it was added that the Accountant General was simultaneously corresponding for a formal sanction for the creation of a permanent post of selection grade Stenographer and a definie assurance had been given by the High Court in its Jetter dated September 1, 1959 that action was being taken separately to make the necessary modification in the High Court Appointment and Conditions of Service Rules.

By a letter dated January 12, 1961 the Finance Minister, Assam, wrote to the Chief Justice in reply to the Jetter dated November 15, 1960 from him saying that from the Charge Report of the appellant dated August 28, 1956 his appointment was exclu, sively to the post of Private Secretary and he could not be held to have been appointed in any other post.

That post was a separate one and could not be merged with any other post as was ordered by the High Court.

He made certain suggestions for consideration of the High Court.

It was pointed out that if those suggestions were accepted the position would be as follows :

Existing pots

Private Secy. to Chief Justice 1

Grade I Steno 4 Grade II Steno 3

TOTAL 8

New posts ~!S resulted of re-organisation

Privltc Secy. to Chief Justice Selection Grade Steno (By upgrading) I Grade I Steno 3 Grade I! Steno 3

TOTAL 8 No new creation of a post as proposed by the High Court was stated to be necessary.

The following portion from that letter may be set out:-

"I am however to point out once more that the main difficulty in the matter, lies on the question of appointing Sri Gurumoorthy as a Selection Grade Steno from his original appointment as Private Secretary to the Chief Justice which was a separate post."

This Jetter was addressed to Shri H. Deka who had become Chief Justice by that time. After receipt of this Jetter the Chief Justice _passed an order vacating the orders of his predecessor dated May 7, 1959. He expressed the view that the post of the Secretary 10 the Chief Justice could not be merged with that o! the Selection Grade Stenographer inasmuch as the incumbent was not a Selection Grade Stenographer.

He agreed with the Govern ment's suggestion contained in the aforesaid letter and vacated the order merging the post of Secretary with that of Selection Grad~

Stenographer and of absorbing the appellant substantively in the

SUPREME COURT REPORTS

(1971] SUPP.S.C.R.

permanent cadre and in the post of Secretary-cum-Selection Grade Stenographer.

He asked for sanction to revise the pay scale of the Secretary to Rs. 450-30-600 with effect from October 1 1956 in view of his order which was likely to result in reduction f pay which was being drawn by the appellant.

In September 1961 Shri Gopalji Mehrotra who had suce<:eded Shri H. Deka as Chief Justice re-examined the whole matter and observed that from the orders of his predecessor dated February g, 1961 two consequences wo!lld flow; firstly the appellant would have to refund the salary which he had overdrawn and secondly even if the sanction was granted from August 24, 1961 or hi; post was made permanent he might get salary on the old scale.

In his view the appointment vf the appellant by the 01ief Justice Shri C. P. Sinha on May 7, 1959 was a valid appointment and the Chief Justice had fult powers to pass the said order under Article 229 of the Constitution.

He, further considered that once th: appellant had been appointed substantively he could not be asked to vacate that post in violation of the provisions of Article 311(2).

He, therefore, vacated the order made by Shri H. Deka and restored that of Shri C. P. Sinha.

Once an order had bi:en passed by the Chief Justice of the High Court in exercise of his power under Article 229 of the Constitution the only course open to the Government, if it wanted to challenge those orders, was to take appropriate proceedini:s either by way of persuading the Chief Justice to rescind or amend his order on the adminstrative side or to file a writ petition challenging his orders in the High Court.

But the Government took the extraordinary and somewhat unusual step of directing the Accountant General not to issue any pay slip to The appellant until final orders of the Government were issued.

This is clear from the letter of the Government to the Accountant General dated October

7. 1961.

It appear~ that t11e appellant challenged the directions given by the Government to the Accountant General by a petition under Article 226 of the Constitution. That petition was, however, withdrawn on July 12. 1963 in view of an assurance given by the Advocate General that if a proposal was sent to the Government by the High Court on the following lines it would be accepted:-

"(l) Creation of a permanent post ot Secretary to the Hon'ble Chief Justice, outside the cadre of Stenographers, in the scale of Rs. 450-30·600 with retrospective effect, the date with reference to which this would take effect being decided by the Govemment in consultation with the Hon'ble Chief Justice.

(2) Pending finalisation of the above proposal, the petitioner would be allowed to draw pay in the above

mentioned grade at Rs. 570 per month subject to adjustment in the light of tlie finalisation of the matter''.

On July 23, 1963 the Registrar wrote to the Government enclosing a copy of the High Court order dated July 12, 1963.

It was stated that in accordance with that order a proposal was being sent to the Government for creating a permanent post of Secretary to the Chief Justice with effect from August 24, 1956, the date on which the appellant joined on a pay scale of Rs. 450-30-600. On October I, 1963 the Government wrote to the Registrar intimating sanction of the Governor to the creation of a permanent post of Secretary . with effect from May 7, 1959. The Registrar in his Jetter of November 12, 1963 pointed out that the sanction was inconsistent with the High Court's proposal.

This was followed by a long correspondence but the Accountant General revived his demand for refund of a sum of Rs. 15,621.2nP. on account of the salary which was stated to have been overdrawn by the appellant.

On November 15, 1965 the appellant filed a petition under Article 226 of the Constitution which was heard on January 2, 1967 by a division bench consisting of C. S. Nayudu and S. K. Dutta

JJ.

The learned Judges differed in their decision.

Nayudu J. dismissed the petition where Dutta J. allowed it.

The petition was referred to a third Judge Goswami J ., who agreed with the judgment of Nayudu J.

The main point raised in the petition related to the ambit of the powers of the Chief Justice of a High Court under Article 229 of the Constitution and the authority of the State Government to interfere with or override those orders of the Chief Justice by directing the Accountant General not to issue the pay slips to the officer whose appointment had been made by the Chief Justice as F his Secretary-cum-Stenographer.

Indeed, it was stressed, this had been done after the State Government had accorded sanction in clear terms for such a post.

The position taken up by the appel~ !ant was controverted in every way by the respondents.

We may now refer to the constitutional provisions for deter- G mining the power and authority of the Chief Justice of a High Court in the matter of appoinmens of officers and servants of that court.

Clause (1) of Article 229 provides that appointments of officers and servants of .a High Court shall be made by the Chief Justice of the Court or such other judge or officer of the court as he may direct i.e. his nominee. The proviso empowers the Gover- H nor of the State to require by Rule in certain cases to make appointment after consultation with the State Public Service Commission.

Qause (2) of the Article contains two 'important provisions. The

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

first is that conditions of service of officers and servants of a High Court shall be such as may be prescribed by Rules made by the Chief Justice or his nominee.

This is, however, subject to the provisions of any law made by the legislature of the State.

The second is that the Rules so far as they relate to salaries, allowances and pensions require the approval of the Governor.

Clause (3) declares that the administrative expenses of a High Court includ ing all salaries, allowance:; etc. in respect of officers and servants of the court shall be charged upon the Consolidated Fund of the State.

Under Article 202 the Gol'

rnor shall, in respect of every financial year, cause to be laid before the House or Houses of the legislature of the State a statement of the estimated receipts and expenditure for that year.

Under clause (2) the estimates of expenditure shall show separately

(a) the sums required to m"et expenditure described by the Constitution as expenditure charged upon the Consolidated Fund of the State and (b) the sums required to meet other expenditure. Clause

(3) gives the expenditure which shall be charged on the Consolidated Fund of each State.

Clause (f) reads "any other expenditure declared by this Constitution or by the legislature of the State by law to be so charged".

Under Article 203 the estimates which relate to expenditure charged upon the Consolidated Fund of the State shall not be submitted to the vote of the legislative assembly.

Article 204 relates to Appropriation Bills.

The bill to provide for appropriation out of the Consolidated Fund of the State must include the expenditure charged on that Fund.

Clause (2) prevents any amendment being proposed to an Appropriation Bill which will have the effect, inter alia, of varying the amount or altering the destination of any grant or varying the amount of expenditure charged on the Consolidated Fund of the State.

Article 146 con tains provisions relating to officers and servants of the Supreme Court in terms analogous to Article 229 the other provisions being also similar.

The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and .iervants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article.

This was essentially to secure and maintain the independence of the High Courts.

The anxiety of the constitution makers to achieve that object is fully ; hown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the court at the same level as the salaries and allowances of the judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause (!) read with clause (2) of Article 229 confers

GURUMOORTHY v. ACCT. GENERAL (Grover, J.) 429

exclusive power not only in the matter of appointments but also A with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (!).

Tile B apprnval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. Even under the Government of India Act the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chief Justice of the Court under Section 242 (4) read with Section 241 of the Govern- C ment of India Act, 1935. By way of contrast reference may be made to Article 148 relating to the Comptroller and Auditor General of India. Gause (5) provides :

"Subject to the provisions of this Constitution and of any law made by Parliament the conditions of service of D persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General."

It is significant that the Comptroller and Auditor General unlike fhe Chief Justice of a High Court has not been given the power to prescribe the conditions of service of persons servingin the Indian Audit and Accounts Department in the same terms as are embodied in Article 229 (2).

There the Rules 'have to be made by the President after consultation with him.

Article 187 may also be noticed. Clause (2) of that Article provides that the legislature of a state may by law regulate the recruitment and conditions of service of persons appointed to thy secretarial staff of the House or Houses of legislature. Gause (3) is to the' effect that until provision is made under clause (2) the Governor may, after consultation with the Speaker of the legislative assembly or tile Chairman of the Legislative Council, make rules regulating tile recruitment and the conditions of service or persons appointed to the secretarial staff of the Assembly of Council. Th'iis Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers' and sel'Vants of the High Court and their conditions of service. These can be prescribed by rules made by him.

Apart from the special situation contemplated by the proviso to clause (!) the only exception is that the Governor's approval must be sought to the extent the rules relate to salaries, leave or pension.

..c:io

SUPREMB COURT RBPORTS (1971] SUPP. s.c.R.

This exception; it is abundantly clear, has to be made because the

financs hav~ to be provided by the Govern11Jent and to the extent

thee IS any mvolvement of expense the Government has to approve Of II.

Dutta J., in his judgment considered that there was no dispute on the following po:iition. There were originally 7 sanctioned posts of stenographers in the High Court. The Court sent a proposal the Stenographers' Service should be reorganised. This included the post of one selection grade stenographer.

There was also a separate proposal to make the post of Secretary to Chief Justice permanent with a pay scale similar to that of a selection grade stenographer. The Government accepted the proposal with regard to the reorganisation of the Stenographers Service..

The pay scales of the selection grade stenographer was first fixed at Rs. 400.600 with effect from May 21,

1955. It was revised to Rs. 450.600 from October l, 1956 but it was afterwards fixed at Rs. 600-900 with effect from September 1, 1959. The Government had made it clear that the person holding the post of selection grade stenographer should also work. as Secretary to the Chief Justice and that the temporary post of the Secretary to the Chief Justice should cease to exist.

Dutta J. repelled the contention of the counsel for the State that no. post of Secretary-cum-selection grade stenographer had lx:en created by the Government or that such a post could not be created except by means of framing rules.

Jt was pointed out by the learned judge that a number of posts had been created with different pay scales by the Government or the High Court and several of these posts and pay scales were never integrated in any rule.

The Government never took up the position that all those posts did not legally exist.

When a post was created with the approval of the Government in the High Court and the pay scale was sarn:tioned for it, its inclusion in the rules was a mere formality.

It was also held by him that the conditions laid down while sanctioning the post of selection grade stenographer in the letter of the Government dated August 6, 1958 that the procedure of recruitment should be on the same or similar lines as laid down in the Government Resolution dated October 22, 1955 came into conflict with the powers of the Chief Justice under Art. 229 and it was so accepted by the Government itself in the letter dated April 27, 1959.

His view finally was that the Government had the authority to sanction the post.

But it could not interfere with the choice of the incumbent which undoubtedly was to be of the Chief Justice under Article 229 of the Constitution. We are inclined to concur with the reasoning and conclusion of Dutta J.

It is unnecessary to refer to the decision of Nayudu J., who acceded to certain contentions raised on behalf of the State which were wholly untenable and have not been sought to be supportea

GURUMOORTl!Y v. ACCT. GENERAL tGrover, J.)

before us.

By way of illustration, one of the arguments which was accepted was that the letter annexure-R dated April 27, 1959 from the Secretary to Government of Assam, Law Department, to the Registrar and which he was obviously writing on behalf of the Government, which meant, the Governor, did not satisfy the requirements of Article 166 of the Constitution. In view of the tenor and contents of that letter such a contention could never .have been sustained.

Goswami J., did not fall into the same errors as Nayudu J. and his comprehension of the true legal position was substantially correct.

But he erred in coming to the conclusion that the Government had not accorded sanction for the post to which the appellant was appointed by the orders of Sinha C. J. dated May 7, 1959.

His reasoning was that there were seven permanent stenographers holding seven posts.

By the appointment of the appellant as selection graqe stnographer-cum-secretary the strength was raised to eight for which no sanction of the Government existed. Goswami J. further took into consideration the fact that the Government had made it clear that the selection grade post should be filled by promotion strictly on merits from among the stenographers grade I.

It may be stated at once that any restrictions imposed by the Government of the above nature while communicating the sanction could not bind the Chief Justice in view of Article 229 of the Constitution.

This was recognised by the Government itself in its letter dated April 27, 1959.

Even as regards the strength of the cadre of stenographers which was seven there was evidence that at the relevant time all the posts were not filled up (see the .affidavit filed by the appellant in the High Court dated August 7, 1967 together with annexure I).

At any rate the Government had itself taken up the position in para 6(viil of the affidavit dated December 12, 1965 that as a result of the order of the Chief Justice of May 7, 1959 one post of grade I stenographer stood automatically retrenched.

If that be the correct position there was no additional financial burden involved in the appointment of the appellant as secretary-cum-selection grade stenographer and it is difficult to understand how the Government could interfere in the choice of the person who was appointed or insist on his having certain type of qualifications, as seems to have been emphasized in some of the letters.

It may also be pointed out that the post of selectioq,; grade stenographer-cum-secretary to Chief Justice had been s; itis; tjolled vide the letter dated April 27, 1959.

The appellant was appointed to that post by the Chief Justice who was competiJt;.!fo do so under Article 229.

If there were any technical diffkUltics they could be easily sorted out by mutual cooperation which is, essential between the Chief Justice of the High Court and

H ' '<

43.3

SUPRBME COURT ltBPORTS [1971] SUPP. s.c.R.

the State Government in such matt1:rs. But instead of doing so the unusual step of the Accountant General withholding the pay slips under the directions of the Government was taken for which there was no legal justification or warrant. ·

The appeal is cons1:quently allowed and the judgment of the High Court is-set aside An appropriate writ or direction shall issue to the respondents to give effect to the orders of Sinha C. 1. dated May 7, 1959 and Mehrotra C. J. dated September 27, 1961.

The appellant will get his costs in this Court.

G.C.

Appeal allowed.

M. GURUMOORTHY

S. M. SIKRI

G. K. MITTER

K. S. HEGDE

P. JAGANMOHAN REDDY, JJ

Constitution of India

Art. 229

Art. 229

Art. 229

Art. 229

High Court by Rules

Art. 229

Art. 229(3)

Arts. 202, 203 and 204

Art. 229

Art. 148

Art. 187

Art. 229

Article 226

Article 229

Art 229

Constitution of India

Article 229

Constitution of India

Article 229

Article 311(2)

Article 229

Article 226

Article 226

Article 229

Article 229

Article 202

Article 203

Article 204

Article 146

Article 229

Article 229

Article 229

High Court by Rules

Even under the Government of India Act

Section 242

Section 241

Govern- C ment of India Act, 1935

Article 148

Article 229

Article 187

Article 229

Art. 229

Article 229

Article 166

Article 229

Article 229


RAJA SBATRVNR

MOHAMMAD UMAT AZIM KHAN " ORS.

April 21, 1971 [C. A. VAlOIALINGAM AND A. N. RAY, JJ.)

U.l'. Zamintiara D•bt R•duclion Act (15 of 1955), •· 4 a.iam•nd•d by th• Amtndment Act of 1962-Efject of amendment, Cod• of Civil l'roct

dure (Act 5 of 1908), O. 41-Rtvi•-l'rinclp/t1 for granting wh•n siaiute am•nded.

.03

An application for tho reduction of the decretal amount of a decree passed under tho U.P. Encumbered Estat .. Act, 1934, filed by the rC8pon- 0 dents unde1 s. 4 of tho U.P. Zamindars' Debt Reduction Act, 1953, was rejected by the Special Judae actina under 1953-Act, on the ground that unless and until the decree charged the mortgaged property no reduction of debt could be orderd under the 1953-Acl The appeal to the High Court was dismissed. The 1953-Act was amended by the U.P. Zamindars' Debt Reductio11 (A!llendment) Act, 1962, by deleting the words 'charged under the decree' from the section. Thereafter, the judgment debtor filed an application for review in the High Court, and the High Court set aside D the order of the Special Judge, and remanded the matter.

On the questions: (1) whether the section as amended could be invoked ~Y the respondents, and (2) whether the High Court could grant the application,

HELD: (I) Tho Amendment Act provided that the amendment took effC('t as if the amendment had been in force on all material dat, s, that is, the words 'charged under the decree' in s. 4(2) of 1953-Act were never there. The consequence is that the only statutory requirement is whether tho mortgaged proprty consists of an estate which bas been acquired under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950. In the present case, the decree related to a secured debt and the mortgaged property conSisted ot an estate which had been acquired under the provisions of Abolition Act, and therefore, the section could be invoked. [436F; 437E-F; H, 438A-B]

State of Bombay v. l'andurang Vinayak Chapha/kar & Or.. [1953] S.C.R. 773, referred to.

(2) It was not a case where, when the High Court decided the matter, it applied the law as it stood and there was a subsequent change of law, which would not be a ground fof review. [438E-F] G

(a) The law in s. 4 of the 1953-Act as amended was not a subsequent Jaw, but a law which was there from the inception of the Act. The deeming provision makes it fully effective from the date when the 1953-Act can1e into force. The result is P1ut the High Court in the first instance should have applied the law as it always stood and not having done so it would be an error on the face of the record. [438F-H]

(b) Moreover, s. 4 of the 1953-Act confers power on the Court to lll'PIY the law notwithstanding any provision contained in the Civil Procedure Code. It is a special legislation conferrina riahts and reliefs within 28-1 S.C. Indla/71

SUPRBMB COURT RBPORTS [1971) SUPP. l;(l.I:.

a specially created jurisdiction and it is the substance and not the form that would be decisive, in such a case .. [439 C-D]

(c) The Si>ecial Judge could not have ordered the application after 1t was affirmed by !ho High Court in tho first instance and therefore the respondents rightly applied to tho High Court. [438H ;' 439A] '

Rajah Kotagir Venkata Subbamma Rao v. Rajah Ve/lanki, 21 I.A. 197, referred to.

QVJL APPBLLATB JURISDICTION : Civil Appeal No. 1007 of 1967.

Appeal from the judgment and order dated April 30, 1963 of the Allahabad High Court, Lucknow Bench in Review Application C No. 2 of 1963.

C. B. Agarwala and Akhtar Husain, for the appellant.

Danial A. Latifi, and M. l. Khowaja, for respondent No. I.

D The Judgment of the Court was delivered by

Ray, J.-This appeal is by certificate from the judgment of the Allahabad High Court dated 30 April, 1963.

Leave was granted by the Allahabad High Court on 21 February, 1966.

The facts are these.

On 4 October, 1939 the appellant obtained a decree under the U. P. Encumbered Estates Act, 1934 against Sardar Mujibul Rahman Khan for the sum of Rs. 1,31,040-1-0 with costs and future interest at 3!% p.a. on the basis of a secured debt Sardar Mujibul Rahman Khan the judgment debtor died on 24 April, 1949.

Thereafter the judgment debtor's sons who were brought on record on 21 April, 1953 applied for reduction of tfie decretal amount under section 4 of the U. P. Zaminpars' Debt Reduction Act, 1952 (Act XV of 1953).

The application was rejected by the Special Judge, Kheri on 18 February, 1957.

The Special Judge held that unless and until the decree charged the mortgaged property no reduction of debt could be ordered under the U. P. Zamindars' Debt Reduction Act, 1952 and that the decree was not one such.

The judgment debtor filed an appeal against the said order of the Special Judge. The appeal was heard on 27 November, 1962 by the Full Bench of the Allahabad High Court upholding the order of the Special Judge and dismissing the appeal which was treated as revision.

Shortly after the dismissal of the revision petition the U. P. Zamindars' Debt Reduction Act, 1952 was amended by U. P. Zamindars' Debt Reduction (Amendment) Act, XX of 1962.

The Amendment Act of 1962 received the assent of the President on 27 November, 1962 which happened to be the date of the order of the High Court

SHATRUNJI V, AZIM KHAN (Ray, J.)

on the revision application.

The !llDendment was published in the Gazette on 4 December, 1962 and came into iorco on that date. The judgment debtor thereafter on 20 February, 1963 filed an application for review against the order of the Full Bench dated 27th November, 1962.

The High Court in accordance with the order of the majority .accepted the review application of the judgment debtor and set aside the order of the Special Judge rejecting the judgment deb tor's application under section 4 of the Zamindars' Debt Reduction Act, 1952 and remanded the case to the Special Judge for disposal of the same in accordance with the provisions of the U. P. Zamin dars' Debt Reduction Act, 1952 as amended by Act 20 of 1962.

Two questions arise in the present appeal.

First, whether section 4 of the U. P. Zamindars' Debt Reduction Act, 1952 could be invoked by the judgment debtor, secondly, whether the High Court could accede to the application of the judgment debtor.

Section 4 of the U. P. Zamindars' Debt Reduction Act, 1952 (hereinafter referred to as the 1952 Act) in so far as it is necessary for the purpose of the present appeal is as follows :

"Powers to reduce debts after passing of decree: (!) Notwithstanding anything in the Code of Civil Procedure, 1908 or any other law, the court, which passed a decree to which this Act applie.s relating to a secured debt, shall on the application either of ihe decree-holder or judg ment-debtor, proceed as hereinafter stated.

(2) Where the mortgaged property (charged under the decree) consists exclusively of estat.e and such estate has been acquired under the provisions of the U. P. Zamin dari Abolition and Land Reforms Act,. 1950, the court shall-• . . . .

(3) Where the mortgaged property (charged under the decree) consists partly of estate and partly of property other than e.state, the court shall- • . . . .

!l'he words 'charged under the decree' are shown in brackets

only to indicate that these words were deleted by Amendment Act

20 .of 1962.

It is because of the amendment that the judgment debtor made an application to the High Court for i:eviow of the order dated 27 November, 1962 rejecting the judgment debtor's application under section 4 of the 1952 Act.

As to what the Court shall do under sub-sections (2) and (3) of section 4 of tbc

1952 Act are calculation of the amount and teduction of the same

'35

in accordance with the provisions of the Act.

The working out of these details for calculation and reduction of debt does not arise in the present case.

The Amendment Act 20 of of 1962 which deleted the words "charged under the decree" occurring in both sub-sections (2) and

(3) of section 4 of the 1952 Act immediately after the words "mortgaged property" was made effective as from the date of enforcement of the U. P. Zamindars' Dehl Reduction Act, 1952, namely, 25 May, 1953.

The reason for this amendment given in the objects and reasons of the U. P. Zamindars' Debt Reduction (Amendment) Act, I 962 was because the High Court of Allahabad in the case of Bannu Mal & Ors. v. Bashir Ahmad Khan & Ors.(') held that the court was powerless to reduce debts after tile passing of the decree unless the mortgaged property was charged under the decree.

The effect of the Amendment was to give relief to mortgaged property within the contemplation of the Act.

As a result of the amendment first it is to be a decree to which the 1952 Act applies, secondly, it is to be a decree relating to a secured debt and, thirdly, the mortgaged property is to consist of estate which has been acquired under the provisions of the U. P.

Zamindari Abolition and Land Reforms Act, 19 50. If these tests are satisfied the decree holder or the judgment debtor has the right to apply to the court and the court shall on the application prcr ceed in accordance with the provisions of the Act.

The Court under this section is the court of the Special Judge which passed the decree. In the present case, it is indisputable that it is a decree relating to secured debt, and the mortgaged pro~ consists of an estate which has been acquired under the prov1Sions of the U. P.

Zamindari Abolition and Land Reforms Act, 1950.

The respondents applied under section 4 of the 1952 Act as it stood prior to its amendment by Act 20 of 1962 on 24 / 25 August, 1955 in the court of the Special Judge, first-grade, Kheri. The Special Judge held that the decree against the respondents was not one which could be said to be against the mortgaged property charged under the decree.

The respondents also lost before the High Court under the order dated 27 November, 1962. The respondents made an application for review of the judgment of the High Court dated 27 November, 1962.

(1) 1962 A. L. J. R. 88

SHATRUNJI V. AZUf KHAN (Ray, J.)

The effect of the amendment of the 1952 Act is embodied in section 2 of the Amendment Act. 1962 which is as follows :-

"The U. P. Zamindars' Debt Reduction Act, 1952 shall as to the date of this enforcement have effect subject to the amendments made by this Act as if this Act had been in force on all material dates :

Provided that nothing in this section shall apply to a debt which has been discharged prior to the date of

enacent of this Act".

The Amendment Act therefore provided that the amendment took effect as if the Amendment Act had been in force on all material dates.

The effect of such a deeming clause was stated by this Court in State of Bombay v. Pandurang Vinayak ChaphalkllT' & Ors. (1) as follows: -

"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effeci must be given to the statutory fiction and it should be carried to its logical conclusion".

The statutory fiction was introduced to give full effect to section 4 of the 1952 Act by conferring on the debtors and creditors the right to apply to the court for calculation and reduction of debt.

It was realised that courts always passed simple decrees.

It was noticed that mortgaged property was not and could not be charged under the decree.

It was therefore appreciated that unless the words "charged under the decree" were deleted the section could never give any relief to any landlord whose estate had been acquired.

This Court in the Bombay case referred to the observations of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council (') that "If you are bidden to treat an imagi nary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real to consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ........ The statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggle when ii comes to the inevitable corollaries of that state of affairs".

These observations indicate that the words "charged under the

- decree" in section 4(2) of the 1952 Act were never there with the

(I) [19s3J s.c.R. 773,778

(2) [1952] A.C. 109

inevitable consequence that the only statutory requirement is whether the mortgaged property consists of estate which has been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950.

On 27 November, 1962 when the matter was heard by the High Court, this amendment did not come into the statute book.

That is why the judgment debtor made an application to bring it to the notice of the High Court that the law was that the words "charged under the decree" were always deemed to have been deleted and this law was effective from the date of coming into force of the 1952 Act on 25 May, 1953.

The High Court by a majority opinion was of the view that the judgment debtors should be given relief.

Under Order 47 of the Code of Civil Procedure the principles of review are defined by the Code and the words "any other sufficient reason" in Order 47 of the Code would mean a reason sufficient on grounds analogous to those specified immediately previously in that order.

The grounds for review are the discovery of new matters or evidence which, after the exercise of due diligence, was not within big knowledge or could not be produced by him at the time when the decree was passed or order made, or the review is asked for on account of some mistake or error apparent on the face of the record.

In Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao (') Lord Davey at page 205 of the Report said that "the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event".

Counsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review.

The appellant's contention is not acceptable in the present case for two principal reasons; first, it is not a subsequent law. It is the law which all along was there from 1952.

The deeming provision is fully 'effective and operative as from 25 May, 1953" when the 1952 Act came into force.

The result is that the Court is to apply the legal provision as it always stood.

It would, therefore, be error on the face of the record.

The error would be that the law that was applied was not the law which is applicable. Secondly, section 4 of the 1952 Act confers power on the court to apply the law notwithstanding any provision contained in the Code 0f Civil Procedure.

Therefore the application though intituled an application for review was not be so.

The substance and not the form of the application will be decisive.

The respondents could not have applied to the Special Judge at Kheri after the decision of the High Court on 27 November, 1962 to apply the law as it stood to the facts and circumstances of

(I) 271. A. 197.

SHATRUNII v. AZIM KHAN (Ray, J.) 439

of the case.

The appeal from the order of the Special Judge, A Kheri was heard by the High Court and, therefore, the respondents rightly applied to the High Court. It appears from the record of the case that when the matter was heard before the High Court the respondents' counsel brought to the notice of the High Court that the Act was going to be amended and awaited assent of the President.

In the present case, it is a pre-eminent consideration to be kept in the forefront that the 1952 Act was amended to confer benefit on judgment debtors of the type of the respondents. This is a special legislation conferring rights and reliefs within a specially created jurisdiction.

The decree is treated like a decree of the Civil Court.

The execution of the decree is not within the province of the provisions of the Code of Civil Procedure.

There are special Acts for execution of decrees of the type in the present appeal.

The Special Courts have been given power to grant remedies or reliefs to the judgment debtor as well as the decreeholder.

Section 4 of the 1952 Act conferred right to apply to the court notwithstanding any provision contained in the Code of Civil Procedure.

The High Court was, therefore, right in making the order as a court could have made at the date on which the appeal was heard.

For these reasons the appeal fails and is dismissed.

Each par:y will pay and bear their own costs.

V.P.S.

Appeal dismissed.

SBATRVNR

MOHAMMAD UMAT AZIM KHAN " ORS

A. N. RAY, JJ.

s. 4

Debt Reduction Act, 1953

Tho Amendment Act

s. 4(2)

s. 4

s. 4

Encumbered Estates Act, 1934

section 4

Debt Reduction Act, 1952

Debt Reduction Act, 1952

Debt Reduction Act, 1952

section 4

Debt Reduction Act, 1952

Debt Reduction Act, 1952

section 4

Debt Reduction Act, 1952

Section 4

Debt Reduction Act, 1952

Code of Civil Procedure, 1908

section 4

section 4

section 4

Dehl Reduction Act, 1952

section 4

section 2

Debt Reduction Act, 1952

section 4

section 4(2)

the Code of Civil Procedure

section 4

the Code of Civil Procedure

Section 4

the Code of Civil Procedure


AZMAT AZIM KHAN

BOARD OF REVENUE, UTTAR PRADESB, ALLAHABAD

& ORS.

A.pril 21, 1971

(C. A VAIDIALINGAM AND A N. RAY, JI.)

U.P. Encumbertd Estates Act, 1934-U.P. Abolition of Zamindari and Land Reforms Act, 1950 (Act I of 1951)--Compensation bonds payable to intermediary whether can be withheld and payment on them wlrc!- ther can be stopped in order to satisfy decree against intermediary under 1934 Act--Effect of ss. 23A, 23B of 1934 Act and s. 70 of 1950 Act.

There was a decree under the provisions of the U.P. Encumbered Eatates Ac~ 1934 against the appellant's father on the basis of a mortgage deed. The decree was transferred to the Deputy Commissioner for liquidation of debts. Meanwhile the U.P. Zamindari Abolition and Land Reforms Act, 1951. came into force.

Compensation for proprietary ri&hts as an intermediatery vested in the State_ Government became payable to the judgment debtor.

On the death of his father th .. appellant and his brother became entitled to his property as well as the compensation payable to him. The appellant and his brother received bonds of the aggregate value of Rs. 64,000. Bonds of the face value of Rs. 32,000 remained with the compensation officer. In 1959 tb:e decree-holder applied to the Collector for an order that the appellant and his brother do return the bonds which they had received from the compensation officer failing which their properties were to be attached. The matter went up to the Board of Revenue.

Tho Board asked the Collector to take one or the other of three steps, namely, (I) to stop payment of instalment money on tho bonds by the treasuries or (2) direct the compensation officer \o hand over bonds of the face value of Rs. 32,000 remaining with him for the liquidation of the

debts or (3) to attach the movable properties of the appellant and hi• brother for the liquidation of debts. The appellant thereafter made an application to the High Court under Art. 226 of the Constitution for an order quashing the order and direction to the Board of Revenue. The Division Bench, in appeal against the order of the Si.ogle Judge, quashed the direction of the Board of Revenue according to which the properties of the appellant and his brother were to be attached. The High Court upheld the other two orders of the Board of Revenue in regard to stoppage of payment of instalment money on the bonds by the treasuries and direction to the Compensation Officer to hand over the bonds of the face value of Rs. 32,000 remaining with him for liquidation of the debts.

In appeal to this Court the appellant contended that the Board Of Revenue did not have power to issue the said directions.

HELD: By reason of the provisions contained in s. 70 of the U.P.

Zamindari Abolition and Land Reforms Act, 1950 and s. 23A of the U.P.

Encumbered Estates Act, 1934 the compensation money is sent for by the Collector for the purpose of liquidation of secured debts on which decree is passed. The Compensation Officer under r. 77(1) of the Zamindari Abolition and Land Reforms Rules, 1953 could issue notices to the intermediary directing him to take the bonds becauSe under s. 18 of the 1934 Act the decree holder becomes entitled to recover the amount of the liecree in the manner and to the extent mentioned in 1934 Act. The proviso

lt.ZllAT ll:Hlt.N v. BOit.RD OF llVBNUB (/"ly, I.) 441

te s. 18 of the .1934 Act enacts that the secured debt shall bo recoverable A from tho compensation and rehabilitation grant as thou&h the security had

.not been extin&uished. [445C-D]

Furtll•r, s. 23A and s. 23B of the 1934-Act require that the amount from the bonds on account of compensation or rehabilitation grant received by Collector shall bo expended or utilised by the Collector in liquidation, of the amount of the secured debt. Under s. 23B of the 1934-Act the bonds are received by Collector in pursuance of tho requisition under s.

B 23A of the 1934 Act. The absence of the service of a requisition cannot confer a right on the judgment debtor to take away the compensation .money or bonds. The principle is actus curia neminem gravabit. [445E-F]

Tho decree holder under the provisions of the relevant statutes was

nfitled to bo paid out of the compensation grant monies in satisfaction of tho decree. If the Collector had required the Compensation Officer under C •· 23A of the 1934 Act to place at his disposal pursuant to s. 70 of the 1950 Act the compensation money, the bonds could not have been taken <leliverv of by the appellant. The Board of Revenue rightly gave the directions to secure compliance with the prOvisions of the statute and performance of the statutory duty by the Collector as well as the ComlJOnsation Officer. The appellants were not entitled to receive the bonds 'Without satisfying the decree. That is why the Board of Revenue correctly directed tho stoppage by the treasuries of payment of instalment on D 1ho bonds. [445G-H]

The other direction of tho Board of Revenue requiring the Compen sation Officer to hand over bonds remaining with the Compensation Officer was in aid of valid compliance with ss. 23A and 23B of the 1934 Act as well as s. 70 of tho 1950 Act. [446A]

Tho jurisdiction and authority of tho Board of Revenue touched direct- E !y on tho performance of statutory obligations by statutory authorities.

Tho High Court rightly upheld the directions of the Board of Revenue.

(446B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2108 of 1966.

Appeal from the judgment and decree dated January IS, 1965 cf the Allahabad High Court, Lucknow Bench in Special Appeal No. 82 of 1963.

Danial A. Latifi and M. I. Klwwaja, for the appellant. '

C. B. Agarwala and Akhtar Husain, for respondent No. 3.

The 1 udgment of the Court was delivered by

Ray, J.-This appeal is by certificate from the judgment dated 15th January 1965 of the Allahabad High Court.

The appellant son of Sardar Mujibul Rahman Khan a zamindar of a number of villages in the District of Kheri, Uttar Pradesh impeached the orders of the Board of Revenue of Uttar Pradesh <lated 30 August, 1960 and 6 September, 1960 whereby the Board

4~2

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

A issued three directions.

The first was to stop payment of instalment money or the bonds by the treasuries.

The second was t<> direct the Compensation Officer to hand over bonds of the fac<:- value of Rs. 32,000 reporlcd to be remaining with him for liquida tion of debts.

The third was an order attaching movable and immovable properties belonging to the appellant and his brother B for liquidation of debts.

The principal question in this appeal is whether the first res pondent, the Board of Revenue Uttar Pradesh bad authority to pass the order impugned in this appeal.

The third respondent Raja Shatranjai the decree-holder was a creditor of the appellant's father Sardar Mujibul Rahman Khan on the basis of a mortgage deed.

Raja Shatranjai obtained a decree on the said mortgage debt for Rs. 1,31,040-1·0 and R,. 1931-1-0 as costs.

The decree is dated 28 September, 1939.

The decree was passed under the provisions of the Uttar Pradesh, Encumbered Estates Act, 1934 (hereinafter referred to as the 1934 Act).

The decree was passed on the application of Sardar Mujibul Rahman Khan under section 4 of the 1934 Act for the liquidation of his debts.

The debtor was a zamindar in the District of Lakhimpur Kheri.

The decree was transferred to the Deputy Commissioner of Kheri for liquidatjon of debts.

Meanwhile the U. P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred to as the 1951 Act) came into force.

The proprietary rights of the intermediaries vested in the State Government and the intermediaries were entiiled to receive compensation in lieu thereof.

The judgment-cjebtor was an inter mediary. Notices were issued to the intermediaries to take deli very of the bonds or receive paymet in cash on specified dates.

The appellant on the death of his father became entitled to 2/ 3rd of the Zamindari property and compensation therefor.

He took delivery of the compensation bonds of the value of Rs. 42, 750 I from the Compensation Officer, Lakhimpur while bonds of the value of Rs. 21,250 were received by his brother Hikmat Hakim Khan.

The total amount of bonds received by the appellant and his brother aggregated Rs. 64,000.

On 14 April, 1959 the decree-holder applied to the Collector, Kheri for an order that the appellant and his brother do return the bonds which they had received from the Compensation Officer failing which their movable and immovable properties to the

extent of these bonds be attached for liquidation of their debts.

The Collector on 17 August, 1959 rejected the application. The decree-holder preferred an appeal.

The appeal was dismissed by the Additional Commissioner, Lucknow on 17 February, 1960. The decree-holder thereupon commenced revision proceedings before

AZl.!AT ltHAN Y. BOARD OF REVENUE (Ray, J.)

the Board of Revenue.

On 30 August, 1960 a member of the Board of Revenue allowed the revision.

On 6 September, 1960 another member of the Board of Revenue concurred in the order.

The Board asked the Collector to take one or other of the three steps, namely, the treasuries to stop payment of money on instalment in respect of the compensation bonds or direct the Compensation Officer to hand over bonds of the face value of Rs. 32,000 reported to be remaining with him for the liquidation of the debts or to attach the movable properties of the appellant and his brother for, the liquidation of debts.

The appellant thereafter made an application to the High Court under Article 226 of the Constitution for an order quashing the order and directions of the Board of Revenue. The learned Single Judge quashed the order of the Board of Revenue save and except the direction directing the Compensation Officer to hand over bonds of the face value of Rs. 32,000 reported to be remain ing with him for liquidation of debts.

Thereafter the decree-holder preferred an appeal.

The Bench of the High Court was divided in their opinion.

The matter was placed before the third learned Single Judge.

The order of the High Court was that direction No. 3 of the Board of Revenue, namely, attachment of movable and immovable properties of the appellant and his brother was quashed.

The High Court upheld the other two orders of the Board of Reve1me in regard to stoppage of payment ot instalment money on the bonds by the treasuries and direction on the Compensation Office!\ to hand over the bonds of the face value of Rs. 32,000 remaining with him for liquidation of the debts.

Counsel for the appellant contended that the Board of Revenue did not have any power to issue the directions. In the present case, the decree was passed under section 14 of the 1934 Act.

Under section 19 of the 1934 Act the Special Judge passing the decree is to send the same to the Collector for execution in accordance with the provisions of Chapter V of the 1934 Act.

The Special Judge under section 19 of the 1934 Act is also to infonn the Collector of the nature and extent of the amount of the secured debt which is not legally recoverable otherwise than out of the compensation and rehabilitation grants payable to the Landlord in in respect of the mortgaged estate.

The U. P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the

1950 Act) came into force on 26 January, 1951.

As a result of the 1950 Act sections 23Aand 2~B were introduced into the 1934 Act Section 23A speaks of compensation and rehabilitation grant to be placed at the disposal of the Collector.

Section 23B

SUPJ.llllti! toul.T IUIPORTS

[1971) SUPP. 8.C.J.,

A speaks of liquidation of secured debts recoverable both from compensation and rehabilitation grant. The sections are set out hereunder:-

"23A. Compensation and rehabilitation grant to .be placed at the disposal of the Collector :-The Collector shall require the Compensation Officer and Rehabilitation Grants Officer as may be necessary to place at his disposal in pursuance of section 70 of the U. P. Zamindari Aboli tion and Land Reforms Act, 1950, the amount of com pensation money and rehabilitation grant payable to the landlord in respect of his proprietary i; ights in land reported to be liable to attachment or sale under the provisions of sub-section (2) of section 19.

23B. Liquidation of secured debt recoverable from compensation and under rehabilitation grant :-(1) With out prejudice to the provisions of Section 8 of the U. P.

Zamindar's Debt Reduction Act, 1952. the amount or the bonds on account of compensation or rehabilitation grant received by the Collector in pursuance of the requisition under Section 23-A shall be expended or utilised by the Collector in liquidation of the amount of the secured debt which having regard to the provisions of the U. P.

Zamindar's Debt Reduction Act, 1952 was secured on the proprietary rights in land in respect of which such money has been received.

(2) If any balance out of the compensation and ; eha bilitation grant received by the Collector in pursuance of the requisition under Section 23-A remains in the hands of the Collector after utilising the same in accordance with the provisions of sub-section (!), such balance shall be utilised by the Collector in discharging the debts, other than the debts, referred to in the said sub-section in order of priority".

Both these sections of the 1934 Act refer to section 70 of the 1950 Act.

Section 70 of. the illid Act is as follows : - "Compensation money to be placed at the disposal of the Court or authority : Where before any Court or authoriiy any suit or proceeding is pending which directly or indirectly affects or is likely to affect the right of any person to receive the whole or part of the compensation determined under Chapter III, the Court or authority may require the Compensation Officer to place at its disposal the amount so payable and thereupon the same shall be disposed of in accordance with the orders of such Court or authority".

AZMAT KHAN V. BOAllD OP JlEVENUli (Ray, J.)

The Collector, therefore, by reason of the provisions of the 1934 Act and the 1950 Act requires the Compensation Officer and the Rehabilitation Officer to place the amount of compensation at his disposal. The Collector on receipt of the grant is to expend or utilise the same in liquidation of the amount of the secured debt and if the balance .remains it is to be utilised in discharging the debts other than those mentioned in section 23-B (I) of the 1934 Act, in order of priority.

By reason of the provisions contained in section 70 of the 1950 Act and section 23A of the 1934 Act the compensation money is sent for by the Collector for the purpose of liquidation of secured debt on which decree is passed.

The Compensation Officer under rule 77(1) of the Zamindari Abolition and Land Reforms Rules. 1952 could issue notice to the intermediary directing him to take delivery of the bonds. The issue of a notice would not dothe the intermediary with the right to take away the bonds because under section 18 of the 1'34 Act the decree-holder becomes entitled to recover the amount of the decree in the manner and to the extent mentioned in the 1934 Act.

The proviso to section 18 of the 1934 Act enacts that the secured debt shall be recoverable from the compensation and rehabilitation grants as though the security had not been extinguished.

The question, in the present case, is whether the appellant could lawfully obtain delivery of the bonds from the Compensation Officer.

Sections 23A and 23B of the 1934 Act require that the amount or the bonds on account of compensation or rehabilitation grant received by the Collector shall be expended or utilised by the Collector in liquidation of the amount of the secured debt.

Under section 23B of the 1934 Act the bonds are received by the Collector in pursuance of the requisition under section 23A of the 1934 Act.

The absence of the service of a requisition cannot confer a right on the judgment-debtor to take away the compensation money or bonds.

The principle is actus curia neminem gravabit.

The decree-holder under tbe provisions of the relevant statu tes was entitled to be paid out of the compensation grant monies in satisfiaction uf the decree.

If the Collector had required the Com pensation Officer under section 23A of the 1934 Act to place at his disposal pursuant to section 70 of the 1950 Act the compensation money, the bonds could not have been taken delivery of by the appellant.

The Board of Revenue rightly gave the directions to secure compliance with the provisions of the statute and performance of statutory duty by the Collector as we!! as the Compensation Officer. . The appellants were not entitled to receive the bonds without satisfying the decree.

The appellants were wrong in doing so.

The appellant could not take advantage of his own wrong.

That is why the Board of Revenue correctly directed the

SUPll!MB COUllT llBPOllTS [1971] SUPP. s.c.ll.

stoppage by the troasuries of payment of instalment money on the bonds.

The other direction by the Board of Revenue requiring the Compensation Officer to band over the bonds remaining with the Compensation Officer was in aid of valid compliance with sections 23A and 23B of the 1934 Act as well as section 70 of the 1950 Act.

The jurisdiction and authority of the Board of Revenue in the present appeal touched direCtly on the performance of statutory obligations by statutory authorities.

The compensation bonds are required by the statute to go to the Collector for liquidation of secure.d debts.

The judgment debtor is not entitled to the compensation bonds without liquidation of the debts in accordance with the provisions of the statute.

The High Court rightly upheld the directions of the Board of Revenue.

The appeal js therefore dismissed.

The parties will pay and bear their own costs in thls Court.

G.C.

Appeal dismissed.

AZMAT AZIM KHAN

BOARD OF REVENUE, UTTAR PRADESH, ALLAHABAD & ORS

A N. RAY

Encumbertd Estates Act, 1934

ss. 23A, 23B

s. 70

Art. 226

s. 70

s. 23A

Encumbered Estates Act, 1934

s. 18

s. 18

s. 23A

s. 23B

s. 23B

s. 70

ss. 23A and 23B

s. 70

Encumbered Estates Act, 1934

section 4

Article 226

section 14

section 19

section 19

sections 23Aand 2

Section 23A

Section 23B

section 70

section 19

Section 8

Debt Reduction Act, 1952

Section 23

Debt Reduction Act, 1952

Section 23

section 70

Section 70

section 23

section 70

section 23A

section 18

section 18

Sections 23A and 23B

section 23B

section 23A

section 23A

section 70

sections 23A and 23B

section 70