BIHAR STATE BOARD RELIGIOUS TRUST, PATNA v.

MAHANT SRI BISESHWAR DAS

February 9, 1971

[J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.]

Bihai Hindu Religious Trusts Act (I of 1951), s: 2(1)-Mutt-Pro- _perty gifAed personally to first mahant-Passing in succession from Guru to Chela-Whether public religious trust within meaning of section-Tests.

Gaibi Ramdasji was. the recipient of certain lands from the the Maharaja of Darbhanga and other zamindars.

From out of the income of these lands a temple and certain residential buildinas were constructed.

The estate -came to be known as Kamlabari asth•l.

Gaibi ltamdasji was succeeded in the office of Mahant by his che/Q and thereafter succession to the Mahantship was froin Guru to Che/a. The respondent who was the reigning Mahant at the relevant time resisted the demand of the appellant for the production of accounts and other particulars under .the .provisions of the Biha'r Hindu Religious Trusts Act, I of 1951. The Board took out .criminal proceedings against the respondent, who thereupon filed a suit in which he claimed the astha/ and its properties to be his personal property outside the definition of religious trust. in s. 2(1) of the Act.

The trial -court decided in favour of the appellant but the High Court took a contrary view.

In appeal to this Court.

HELD : ( 1) Properties of the temple being admittedly in the possession of the Mahan! ever since the time of Gaibi Ramjidas the onus of proof that the respondent mahant held them on trust for p11blic purposes of a religious or charitable character was clearly on the appeallant Board who alleged that it was so.

The trial Judge was, therefore, cleody in error in holding that the respondent mahant ought to have produced sarods and that on his failure to do so an adverse inference could be drawn vi:,., that had they been produced they would have shown that the grants to {; aibi Ramjidasji were for public purposes of religious or charitable charactor. [686 F-Gl

(2) The mere fact that Mahaots of n. particular order did not marry and properties held by them is descended from Guru to Che/a was not indicative of and did not raise a presumption of such' properties being religious properties. If originally the property was acquired by a l\fahant the fact of its descent subsequently from guru to ch•la did not also lead to the conclusion that it had lost its secular character. [687 El

( 3) Evidence that Sadhus and other persons visiting the temple were given food and. shelter was not by itself indicative of the temple being " public temple or its properties being subject to a public trust. [688 Al

( 4) The mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such pulolie user as evidence of dedication depends on the circumstances ''lhich give strength to the inference that the user \.\:as as of right. No such evidence of any reliable kind was available to the appellant Board in the instant case. [689 DJ

BIHAR RELIGIOUS TRUST V, B. DAS

68 I

(5) A religious mutt in northern India is generally known as cisthal, a monastic institution founded for the maintenance and spread of a parn. cular sampradaya or cult. The distinction between dedication to a temple and a mutt is that in the former case it is to a particular deity, while in tbe later case it is tl> a supericil: or a mahant.

But just as jn the case of the debutter endowment, there is both private and public endowment, so too there can be the same distinction between a private •nd public mutt.

A mutt can be dedicated for the use of ascetics generally or for the ascetics

oi a particular section or cult, in which cue it would be a public .institution. But it is not impossible to have a private mur~ wheTe tlr~ endowment is not intended to confer beneftt upon the public .generally or even upon the memben of a particular order..

Examples do occur where the founder may grant propelrty to his Spiritual preceptor and his disciples in succeuion with a view to maintaining one particular spiritual family and for perpetuation .of certain rites and ceremonies which are deemed to be conducive to the spiritual welfare of the found.;, and his family. In such cases it would be the grantor and his descendents who are' the only persons interested in seeing that the institution is kept up for their benefit. Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity in which the public or a sec tion of it is interested. Such charities appertain to a private debutter also.

[690 DHI

The existence of a private mutt in which the property was given to the head of the mutt for his personal benefit only has in the past been recog.

nised. In suc.h cases there is no intention on the part of the grantor to fetter the grantee with any obligation in dealing with the property granted.

In each case the court has to come to its conclusion either from the grant i(Sclf or from the circumstances of ihe case whether the grant was for the benefit of the public or a section of it i.e. an unascertained class. or for the. benefit of tb, e grantee himself or for a class of ascertained individuals.

An inference can also be dra\vn from the usage and custom of the institution or from the mqde in which properties had been dealt with as also other established circumstances. [691 B.C]

(6) The fact that idols were installed p.;, manently on a pedestal and the temple was constructed on grounds separate from the residential quar ters of the mahant could not lead to inference of dedication to the public.

In the first place such factors are also found in private temples and mutts and therefore a're not conclusive. In the second place there was th.e evidence that the mahants residential quarters were in fact, not separate from the temple premises. (691 G-H] '

(7) The expresSion 'appertaining to the asthar in the deeds of gift~ made by the__, reigning mahants in favour of their nominees as successors meant things which were appurtenant to and forming part of the principal property which was the subject matter of the instrument. The expression would at best mean that the properties formed part of the asthal and were not the properties of the mahant as distinct from those of the asthal. But unless the asl'hal itself was a public trust for the religious or charitable purpose's, the properties appertaining thereto would not be properties of a public trust for religious or charitable purposes.

The use of the expression 'appertaining to the asthal', therefore, could not lead lo the conclusion that the property in question was stamped with a trust for public purposes. (692 CJ

The appeal must accordingly be dismissed.

Maham Ramsaroop Das Ji v. S. P. Sahi, 1955 B.L.J.R. 88, Ma/Jant Rmsaroop Das J(v. S. P. Sahi, 1959 Supp. 2 S.C.R. 583 & Deoki Nandan

v. Murlidhar, (1956] S.C.R. 756 at 761, referred to.

Permanand v. Nihal Chand [1938] l.L.R .. 65 I.A. 252 Ramsaran Das v.

Jai Ram D"s, A.LR. 1943 Pat 135, Babu Bhagwan Din v. Gir Har Saroop, 67 I.A. 1, Matam Nadipudi v. Board of Commissioners for Hindu Reli• gious Endowments, Madras, A.I.R. 1938 Mad. 810, Missir v. Das, [1949] 1.L.R. 28 Pat. 890 and Sri Thakurji Ramji v. Malfluro Prasad, A.I.R. 1941 Pat. 254 at 358 and Mahant Puran Atal v. Darshan Das, [1942] I.L.R. 34 All 468, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 407 of 191>7.

Appeal from the judgment and decree dated March 13, 1962 C of the Patna High Court in Appeal from Original Decree No. 330 of 1958.

D. Goburdhun and R. Goburdhun, for the appellant.

B. P. Jha, for the respondent.

The Judgment of the Court was delivered by

Shela&, J.-This appeal arises from a dispute between the

appe_llant~:Soard and the respondent which occurrCd when the Board tried to enforce tlie provisions of the Bihar Hindu Religious Trusts Act, 1 of 1951, in respect of the estate known as Kamla~

bari asthal consisting of a te!T'ple, buildins and lands. The respondent is the current mahant claiming direct descent from the founding mahant Galbi Ramdasji in the line of successiqn from Guru to Che/a. Gaibi Ramdasji was the recipient of certain lands from the then Maharaja of Darbhanga and other zamindars. From out of the income of these lands, a temple with Shri Ram, Janki and Laxmanjl as the presiding deities thereof, and certain residen. tial buildings were constructed.

Later mahants added to these properties by acquisition from out of the income of the existing properties.

The respondent-mahant r°'isted the Board's demand for production of accounts and other particulars and in conse quence the B6ard took out criminal proceedings against the respondent.

The respondent thereupon filed a suit o, f which this appeal is the outcome.

In the suit, the respondent claimed that the said asthal and its properties were his personal properties, the gifts of lands having originally been made personally to the founding mahant,. an4l

thereafter, to the mahants succeeding him, and that therefore, the properties were not religious trusts as defined by s. 2 (1 ) of

~_,,, Act. That sub-section defines a 'religious trust' to mean ' ariy,.express or constructive trust created or existing for any pur- Y ~

.~·:::.:.;- _;

llutAll 11.ELIG!OUS TRUST v. II. DAS (Shelat, ).) 68 3

'A pose recognised by Hindu Law to be religious, piou_s or charitable but shall not include a trust created accordmg to Sikh reugion ()I purely tor the benefit of the Sikh community and a pnvate endowment created for the worship oi the family. idol in which the public are not interested". The Board took the stand $at the asthat and the properties belonging to it were not the personal properties of B the manant or his preoecessors, that the gifts to them were not. personal gifts but to the asthal, tI!-at the fact that members of the public had, without any let or hindrance, been usmg the temple for darshan and worship, the fact that festivals were celebrated at which members of the public gave offerings, the practice of feeding of sadhU$ and pilgrims, all went to indicate that the asthal was a c public trust in which the members of the public had an interest.

Both sides led considerable amount oi. evidence, both oral and documentary. The oral evidence consisted of the testimony of witnesses, some of whom deposed, on the one hand, that the members of ~~ public had been coming to the temple without any obstruction on the patt of the• mahant, and some others, on the D other hand, that on certain occasions some of the members of the public had actually been turned away from the temple. Witnesses also deposed to fact of. festivals having 'been celebrated when members of the public were allowed and placed offerings, of sadhu.i: and pilgrims having n fed an(i given shelter, thus showing the user of the temple by .tlle public and the asthal having E disbursed the income of its properties towards religious and charitable purposc:s.

Some of the witnesses examined by the Board were - even prepared to depose that on occasions certain members of the public had exercised some sortof control over the mahant's management of these properties. The oral evi<lence, however, was not of much assistance, partly because it was intrested an<i partly r becauso none of the witnesses ha<i any personal knowledge of the things which they sought to <iepose. ·

As regards the documentary evidence1 the respon<ient-mahant di<i' ot produce !he sanods under hich tne founding mahant had acquired properties. These, he said, could not be traced. The G Board o d1<i not make any attempt: to produce the record of the

Darbb, anga Estate which, on merger thereof with the State of Bihar presumably must be in the custody of the State Governmen~ th~ record, which presumably must contain copies of these sanads, if produced, would have thrown considerable light on the nature of the gifts .and the manner in which they were made. The docu- H mentary evidence produced t te trial, therefore, cqnsisted mainly of (1) ds of gift or nomination ll!ade by a reigning mahant in favour of h!S chela as his successor, (2) deeds of sales purchast:S mortgage deeds etc. made and executed by the mahantsin th~ 14-918 Sup. C.L/71

course of their administration of the asthal properties, and ( 3) A certain revenue records.

The issue which the Trial Judge considered to be. the most crucial one was framed by him _as follows : ·

"Whether the temple and the properties in suit are the personal properties of the plaintiff or are trust properties under the provisions of Act I of 1951 ?"

Thl' issue was framed by him in these terms partly because the respondent had claimed these properties as his personal properties, and partly because the Trial Judge was under the impression, C because of the High Court's\decision in Mahant Rc; msaroop Das Ii

v. S. P. Sohi(1) th~ the definition in s. 2( 1) of the Act also covered private religious trusts.

That decision was, however, reversed on appeal to this Court and as reported in Maham Ram saroop Das Ji v. S. P. Sahi(") the.correct position is that private trusts do not fall within the ambit of the definition in that section.

It was because the Trial Judge was under the belief that private D religious trusts also fell within the definition that he also placed before himself only two alternatives, namely, whether the proper ties were personal properties of the respondent or whether they were trust properties. On the evidence before him, he ultimately held that the asthal and the properties appertaining thereto were public religious trust and dismissed the respondent's suit.

In corning to this conclusion the Trial _Judge took into account the following circumstances :

(I) that the mahants. were bairagis, i.e., celibates, which fact raised the presumption that they held properties on behalf of the asthal to which their lives were entirely devoted; ·

(2) that Mahant Gaibi Ram<lasji had set up a sampradaya which attracted a large following, that therefore, the temple built by him was for the benefit of his followers and for spreading and

propgating 'the doctrines of that sampradaya; ( 3) that from these facts the presumption arose that he had dedicated the temple and the properties to the public or a section thereof;

(4) that the evidence showed that sadhus, fakirs and

abhyagat.1 were entertained at the ten1ple, that the income of the properties was spent on p11ia

(I) 1955 B.L.J.R. 88. (!) [1959] Supp. 2 S.C.R. >83.

I • i

RIBAR RT'.T.J<l!OUS TRUST v . . n. DAS (She/at, J.) 685

(5)

(6)

(7)

an<l other religious activities and for festivals; consequently, the presumption was that the properties were subject to religious and charitable purposes;

that at the time of the installation of the deities in the temple Pran Pratisl!tha and other ceremonies ml!st have been performed which meant that the temple and the properties were declared to have been dedicated to 'the public; that the deeds of appointed of successors executed by the mahants described the mahants as asthaldharls and the properties as appertaining to the asthal, and

that though revenue records descried the mahants as proprietors of these properties, they had to be read in th~ light of the facts aforesta1ed.

On these premises he upheld the Board's contention that "the temple and the properties were trust properties of a public nature for religious and charitable purposes".

On an appeal by the respondent-mahant, the High Court first observed that the evidence on record had to be viewed in the light of the definition section as constructed by this Court in Mahant Ramsaroopdasji v. Sahi( 1) that is to say, 'that the trust, as defined in that section, meant only public trusts and did not include private trusts.

The High Court then appraised the entire evidence and came to the conclusion that even if the mahant had not been able to show that the temple and the other properties were the private properties o.f the mahants, all the factors from which the Trial Judge raised the presumption of a public trust were oonsistent with the properties constituting a private religious trust. .On this view the High Court reversed the judgment of the Tria( Judge and decreed the respondent's suit. holding that the Act did not apply to the properties in suit.

Counsel for the appellaint-Board challenged before us the correctness or the High Court's judgment and supported the Trial Court's judgment.

It is true that the responden--mahant did not prpduce the original sanads whereunder certain lands had been gifted to the founding mahant by the various zamindars. They were not produced because, as the respondent deposed, they could not be traced. but, as stated ea.rlier it was not impossible for the Board also, if it wanted to rely on them, to produce the record such as that of Dharbhanga Estate, and show therefrom the natur~ and the terms of those gifts. The Trial Court, however, was not entitled.

(I) [1959) Supp. 2 S.C.R. 58~.

SUPREME COURT REPQRTS [1971 J 3 s.c.R.

as we shall presently show, from the mere failure of the mahnt to produce the original sanads to draw an adverse inference which it did against him.

From the rest of the evidence the following facts as summarised by the High Court, emerged : I. that the temple was constructed by Gaibi Ramdasji and it was he who installed the deities therein;

2. that he was succeeded to the mahantship by his che/a, and thereafter succession to the mahantship had been from guru to che/a;

3. that the appointment of a successor has been all throughout from guru to che/a, the reigning mahant appointing or nominating his successor from amongst his che/as and the members of the public have had at no rime any voice in the selection or nomination;

4. that the proJl"rties have always been recorded in the names of the mahants as proprietors and not in the name of the deities in the D registers, khewats and khatians;

5. that the mahants have been in possession and management of the asthal and the properties all throughout;

6. that the mahants acquired properties frO!Jl time to time in their own. names as proprietors and never in the names of the deities or the asthal, without any objection at any time from any one and dealt with some of them through deeds of sales, mortgages, leases etc.

 Properties of the temple being thus admitedly in the possession of the mahants ever since the time of Gaibi Ramdasji, the onus of proof that the respondent-mahant held them on trust for public purposes of a religious or charitable character was clearly on the appellant-Board who alleged that it was so.

The Trial Judge. was, therefore, clearly in error in holding that the respondent-mahant ought to. have; produced the sanads and that on his failure to do so an aaverse inference could be drawn, namely, that had thev been produced they would have shown that the grants to Gaibi Ramdasji were for public purposes ot a religious or charitable chiiracter. (see Parmanand v. Nihal ChanJd(') ) .

The sanads not having been available, the appellant-Board tried to establish through the oral evidence of slx witnesses (D.Ws. l to 6), that the temple was founded and the pes in question

were acquired for the benefit of the public or a section thereof

(1) [1938] I.LR. 65 I.A, 257

B!HAR RELIGIOUS TRUST v. B. DAS (She/at, ]. ) 6/!7

The testimony of these witnesses, however, diq not possess much credibility, because although these witnesses declared that the temple was established for the benefit of the public, none of them deposed that Gaibi Ramdasji or any of the succeeding mahants had at any time dedicated the t_emple or the properties to the public or to those who used to attend the temple for worship and darshan.

In these circumstances, the appellant-Board had to fall back upon certain circumstances and the conduct of the mahants to establish that these properties were properties of a public trust.

The circumstances and the conduct relied on were : ( 1) the fact that the mahants were vaishnav bairagis who were life long celibates; (2) that sadhus and others were given food and shelter when they visited the temple; (3) that festivals and other important Hindu dates used to be celebrated; ( 4) that the members of the public came to the temple for darshan without any hindrance and as of right; ( 5) that in the deeds and wills, whereby reigning. mahants appointed or nominated their successors, the properties were described as appertaining to the asthal, and that the temple being the dominant part of the asthat and maintained for the worship and puja of the presiding .deities installed therein, the properties belonged to the temple, and therefore, they were properties of a trust for religiou!i and charitable character.

In Parmanand vs. Nihal Chand(") the Privy Council held that the mere fact that mahants of a particular order did not marry and properties held by them descended from guru to chela was not indicative of and did not raise a presumption of such properties bein2 religious properties. If originally the _properly was acquired by a mahant, the fact oi its descent subsequently from guru to chela did not lead to the conclusion that it h\1(1 lost its secular character. Where, however, a property is dedicated to an idol for the object of performing its puja and Other necessary ceremonies the person managing such property is only a shebait, the idol being a juristic person in Hindu law capable of holding such property. If it is alleged that such property is a trust property held for public . purposes to which Acts, sueh as the Charitable and Religious Trusts Act, 1920 or the present Act, applies, it has to be shown that the trust is not a prjvate trust but is one substantially for public purposes of a religious llnd charitable nature.

In such cases provision for the service of the sadhus, occasional guests and wayfarers does not render a trust fbr an idol into a trust for public purposes. This is because where the main purpose of the trust is making provision for the due worship of an idol and performance 0£ its seva puja and other ceremonies, the feeding of sadhus and giving hospitality to wayfarers are inevitable. These are regarded as duties forming part (ll rl938) I.L.R. 65 I.A. 2si,

of the due worship or the particular deity. . (see Ramsara11 Das vs. Jai Ram Das( 1) Therefore, evidence that sadhus and other persons visiting the temple are given food and shelter is not by itself indicative of the temple being a public temple or its properties being subject to a public trust.

Evidence that the mahants used to celebrate Hindu festivals when members of the public used to attend the temple an'd give offerings and that the public were admitted to the temple for darshan and worship is also not indicative of the temple being one for the bendit of the public. The celebration of festivals i,. according to Hindu belief, part and parcel of the puja of the deity.

Such festivals are celebrated in family and other private temples also.

The fact that members of the public used to come to the temple without any hindrance also does not necessarily mean that . the temple is a public temple, for members of the public do attend private temples. It is against Hindu sentiments to turn away persons who come to do worship and darshan. The mf.!re fact, therefore, that no instance had occured when persons from the public were asked to go away or the absence of proof that they were "allowed on permission or invitation only cannot be conclusive of

the temple being one in which the public have by user acquired interest.

The case in point is of Babu Bhagwan Din vs. Gir Har Saroop('). The original grant there was to the respondent ancestor, one Daryao Gir, by the then Nawab of Oudh. The property in question comprised of hnd on which stood the templ~, the presiding deity of which was Bhaironji, certain houses and shops.

The respondents, who claimed to be the descendants of the original grantee, were grahastha fakirs, i.e., both goshains and house holders.

There was no proof that there had been any interference with the management of the properties.

The revenue records showed the properties in the names of the descendants of Daryao Gir. The shops were let out and in .the leases concerning them the goshains were referred to sometimes as owners and sometimes as owners of th.e "asthan Sri Bhairon; i". There was evidence, however, of members of the Hindu public having resorted to the temple for worship and darshan without any obstruction.

An annual me/a used to be held for many years with public subscription on the grounds of the \emple.

The evidence showed that the temple and the gushains profited from the increased resort to the temple by the public the me/a period. Yet, the Privy Council held that the general effect of the evidence was that the family had treated the temple as family property and the mere fact of the members of the public having come to the temple and having

(I) A.J, R. 1943 Pat, 135,

(~) 67 IA. !,

:.•

,,_

E (

...

lllHAR RELIGIOUS TRUST v. B. DAS lShelat, J.) 689

A made offerings and the me/a having been held which gave popul~ . rity to 1he itemple and increased its esteem in the eyes of the pub!J.C

and the fact that they were never turned away were not enough to hold the te1nple and the properties as a public trust. At page

IO of the report their Lordships .observed :

"Dedication to the public is not to be radily inferred when it is known that the temple property was acquired by grant to an individual or family.

Sue~ 8!1 inference, if made from the fact of user by th~ public, JS hazardous, since it would not in general-be-consonant with Hindu sentiments or practice that worshippers should be turned away; and, as worship generally im

plies offerings of some kind, it is not to be expected that the managers of a private temple should in all cir

cumstances desire to discourage popularity."

Thus the mere fact of the public having been freely admitted to that tmple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. No such evidence of any reliable kind was available to the appellant-Board in the instant case.

True it is that a charitable trust might either be creat_ed by a grant .for an express purpose or a grant having been made in favour of an, individual or a class of individuals, that individual or that class of individuals might, after obtaining the grant, create a charitable trust on behalf of the Board reliance was placed on the deeds of gifts or nominations by reigning mahants in

favour of their nominees, marked in Ex. 7 series where the F tnahants have stated that they appointed such chelas" as mahants of Kamlabari asthal a, rid described the properties as properties appertaining to the 11:1thal. Relying on tb.ee words counsel argued that what the founding mahant Gaibi 'Ramdasji established was the asthal of Kamlabari for the propagation of Sri Sampraclaya where his disciples and the other adherents of Sri Sampradaya

could receive instruction in the doctrines of that Sampradaya at the hands of the mahant aind that the temple was only part o( the G

asthal as its adjunct. The argument was that the asthal was to support te sadhus ad other followers of Sri Sampradaya, the temple bemg only an mstrument for propagating and teaching the doctrines held by the Sampradava. In support of the argument reliance ws placed on Mahant uran Atal v. Darshan Das(I)'.

There as in th<1t case also no evidence of any original grant for

;1 chantable purpose from a donor, nor was there in evidence

(1) [1912] I.LR. 34 All. 468.

'···

...

aµy instrument expressly creating a charitable trust.

The High A Court of Allahabad, however, held that the mahant held the properties in trust for a charitable purpose relying on the mode of the user Ct the property and . dectarations made from time to time by the mahants. Those declarations were to the effect that the properties were lield for the purpose only of supporting and maintaining Manakshahi fakirs, entertaining visitors and for giving of B alms. The properties were held muafi, i.e.; free from Government revenue, .on the. strength of such declarations. Also, in litigations for succession to the gaddi, it had all along been assumed that the properties belongedto the gaddi managed by the gaddi11DShin for the time being and held for charitable purposes. On this evidence, the High Court held that it .could presume that there was a charic table or religious trust, md further observed that even if the main purpose of the gust was to support Nanakshahi fakirs and to spread the religion founded by Guru Na, nak, the trust would still be one for a public purpose within the meaning of s. 92 of the Code of Civil Procedure.

A religious mutt in northel]ll India iS usually known as asthal, a monastic institution fou)lded for the mantena.nce and spread of a particular Sampradaya or cult. The distinction between dedication to a temple and a mut~ is that in the former case it is to a particular deity, while itt the latter, it is to a superior or a mahant.

But just as in the case of the debutter endowment, there is both. a private a, nd a, public endowment, so too ther(l can be the same Jistinction between a private and a public mut~. A mutt can be dedicated for the use of ascetics generally or for the ascetics of a particular sect or cult, in which case it would be a public institution. Mutts have generally sadavrats, i.e., arran_gements for giving food .and shelter to wayfarers and ascetics attached to them.

They may have temples to which the public is allowed access.

Such circumstances might indicate the public character of the institution. But it is not impossible to have a private mutt where the endowment is not inrtended to confer benefit upon the public generally or even upon the members of a particular religious sect or order. Examples do occur where the founder may grant property to his spiritual preceptor a, nd his disciples in succession with a view to maintain one particular spiritual family and for perpetuation of certain rights aind ceremonies which are deemed to be , conducive to the spiritual welfare of the founder and his family. In such cases it would be the grantor and his descendants who are the.only persons interested in seeing that the institution is kept up for their benefit. Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity in which the public or a section of it has an interest. Such charities, as already stated earlier, appertain to a private debutter

Bl.HAR RELIGIOUS TRUST v. B. DAS (She/at, J.) 691

also. (see B. K. Mukherjea, Hindu Law of Religious & Charitable Trusts. (3rd ed.), 303, 304).

The existence of a private mutt, where the property was given 10 the head of the mutt for his personal he'nefi.t only, has in tht:

past recogl!lised. (see Matam Nadipudi v. Board o; Commis

ioners for Hindu Religious Endowments, Madras(!) and Missir

v. Das('). In such cases there is no intention on the part of the grantor to fetter the grantee with any obligation in dealing with tile property granted.

In each case the court has to cun1e to iL> conclusion either from the grant itself or from the circumstances o:

the case whether the grant was for the benefit of the public or a section of it, i.e., an unscertained class, or for the benefit of the grantee himself or for a class of ascertained individuals. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties have been dealt with as also other established circumstances.

Puran Atal's case(") has no application in the present case because there is no evidence such as there was regarding the user of the properties for the maintenance of a particular class of ascetics, nor are<llere declarations made from time to time by the mahants which led the Court there to pronounce that the trust. was for a charitable purpose, and on the strepgth of which the properties were held revenue free.

An attempt appears to have been made in the Trial Court to establish that cerain ceremonies, such as Sanka/pa, Pratistha and Utsarga, were performed at the time when idols were installed in the temple. In the case of temples Pratistha, and not Utsargµ. if established, would indicate dedication to the public. (see Kane's History of Dharmasasti-as, Vol. 2, part II, 892 to 893, and Deoki Nandan v. Mur/ldhar('). Unfortunately for the <.ppellant Board,. there was no clear evid<,:nce of the particular ceremonies performed at the time when Gaibi Ramdasji insalled the id_ols except a general statement from the respondent that when idols are installed in temples Pran Pri:ltistha is generally performed.

Support for a dedication to the public was also sought from the fact that the idols were installed permanently on a pedestal (t.inha. san) ad e temple was constructed on groun9.Lseparat~ from the residential <iJUarters of the mahant. In the first place such factors are also found in private temples and mutts, and therefore.

are not conclusive. In the second place there was the evidence that the mahant's residential quarters a; e in fact not separate from the temple premises. ·

(t) A.I.R. 1938 Mad. 810.

(3) [1942] l.L.R 34 All. 468. 15-918 Sup. C.I./71

(2) [1949] I.L.R. ~8 P>'. R90.

(4) [1956) S.CR. 756 at 761.

Lastly, reference was made to some of the deeds of gifts made .by the reigning mahant is favour of their nominees as successors where the properties were described as appertaining to the asthal.

Assuming that the scribes of these documents used the expression 'appertaining to the asthal' in the sense in which such expression is sometimes used in the deeds of conveyance, the expression .means things which are appurtenant to and forming part of the principal p.roperty which is the subject matter of the instrument. (see Stroud's Judicial Dictionary, (3rd Ed.), Vol. I. 177). The expression 'appertaining to the asthal' in these deeds, therefore, would at best mean that the properties formed part of the asthal and are not the properties of the mahant as distiinct fl.om those of the asthal. (see Sri Thakutji Ramji v. Mathura Prasad(1) But unless the asthal itself is a public trust for religious or charitable purposes, the properties appeartaining thereto would not be properties of a public trust for religious or charitable purposes.

Th~ use _9f the expression 'appertaining to the asthal', therefore, cannot lead to the conclusion that the properties in question were stamped with a trust for public purposes.

These were all the conteLtions urged before us. In our view, the appellant-Board failed ta establish that the proportion in suit fell within the ambit of the Act .and he respondent-mahant was subject to its proWisions. The High Court accordingly was right in reversing the Trial Court's judgment and decreeing the respondent's suit. Consequently, the appeal is dismissed with costs.

G.C.

Appeal disrriisseJ.

(I) A.l.R. 1941 Pat. 354, at 358.

..;.-

MAHANT SRI BISESHWAR DAS

February 9, 1971

M. SHELAT

Bihai Hindu Religious Trusts Act

Mahant

Hindu Religious Trusts Act

s. 2(1)

Gaibi Ramjidas

India

Deoki Nandan

D. Goburdhun

R. Goburdhun

B. P. Jha

Shela

Darbhanga

Ram

Janki

Laxmanjl

s. 2

State of Bihar

Mahant Rc

s. 2( 1)

Mahant Gaibi Ram

SUPREME COURT REPQRTS [1971 J 3 s.c

Gaibi Ramdasji

L.R. 65 I.A. 2

Oudh

Daryao Gir

Bhairon

Sampraclaya

Sampradaya

Sampradava

High A Court of Allahabad

Guru Na, nak

s. 92

the Code of Civil Procedure

B. K. Mukherjea

Puran Atal

Kane

Stroud


LACHOO MAL v.

RADHEY SHYAM

February 10, 1971

[K. S. HEGDE AND A. N. GROVER, JJ.}

U.P. Temporary Control of Rent and Eviction Act, 1947, ss. l(A) •nd 3-Cons1ructio11 after 1951-Agreement that Act tho11/d •pp/ylf binding upon landlord-hidian Contract Act (9 of 1872), a. 23- Scope of.

The appellant was the tenant of the respondent's shop.

As the latter wanted to make sotlle constructions they entered into an agree nt in 1962, according to which, the appellant was to vacate the shop but re-occupy it on the same rent as soon as the construction was Cl)mpleted. It was also agreed that all the sections of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, shall be fully applicable to the new tenancy. After the construction was completed the appellant resum ed possession and offered rent.

The respondent refused the rent and filed a suit for ejectment. In appe'al, the High Court held that the ap pellant was not entitled to the protection of the Act, because, the respondent was entitled to rely on s. !A according to which nothing in the Act shall apply to a building constructed on or after !st January, 1951, and that the agreement was unlawful within the meaning of s. 23 of the lndian Contract Act, 1872.

In appeal to this Court,

HELD : The general principle is that every one has a right to waive the advantage of a law made for his benefit in his private capacity, when a public right or public policy is not infringed thereby. Section lA was meant for the benefit of owners of buildings constructed after tan uary 1, 1951. But there is no prohibition in bhe section against a land lord and his tenant entering into an agreement,. that they would not !>e gove;; iecl by that section. If a particular owner did not want to avail himself of the benefit of the section, there was no bar created by it to his waiving or giving up or abandoning the advantage and no question of pnlicy, or public policy is involved.

Therefore, the performance of the agreement fa the present caae would not entail the transgression of, any law and the agreement was not void under s. 23 of the Indian Contract Act. [696 C; 6<)7 DE; 698 A-CJ

Nemlnath Appayya Hanumannavar v. Jamboorao Sateppa Kocherl, A.I.R. (1966) Mys, 154, approved.

Vita Food Products Incorporated v. Unus Co. Ltd. (in Liquldatio11),

(1939) A.C. 277 at 293, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 18 of 1968.

Ap~ by special leav~ from the judgment and, order dated April 14, 1967 of the Allahabad High Coun in Second Appeal No. 307 of 1965.

[1971]3 S.C.R.

V. M. Tarkunde; Umlila Kapoor and R. K. Khanna, for the' A appellant. '

S. V. Gupte and M. Iii Goswami, for the respondent.

The Judgment of the ourt was delivered by

Grover, J. This is an appeal by specilj]. leave from a judgment of the Allahabad High Court and involves the question whether the appellant, who was the tenant, was entitled to the benefit of s. 3 of U.P. (Temporary) Control of Rent and Eviction Act, 194 7, hereinafter called the "Act".

The facts are not in dispute.

The appellant had been occupying a shop in Mathura oelonging to the respondent from a very

lbng time at a monthly rental of Rs. 18.37. In 1962 the respondent wanted to construct rooms on the upper storey of the shop for his own residence.

Thisl construction could possibly be made only if the appellant vacated the shop for some period. On June 4, 1962, the appellant and the respondent entered into an agreement.. After reciting the. ab6ve facts it was agreed that the shop would be vacated by thel ppellant on the condition that as soon as the required construction had been completed he would resume possession of the shop. ' At this stage the following clauses of the agreement may be set out.

"1. On this day the second party has withdrawn his possession from

1 the shop bearing No. 1/2C, situate at Tilakdwar, and !fas given the same to the first party.

2. The first patty shall get the shop constructed within thirty days and would then hand over the possession of the sanie to the second party.

3. At present a. sum of Rs. 18-6-0 per mensem, which includes house tax and water tax, is being paid by the second party to the first party as rent.

After the c0nstruction of' the shop, the first part}' shall be entitled to get the. sine amount as rent from the second party.

All the sti6ns of the U.P. Rent Control and Eviction Act shall be fully applicable to .this house. The first party shall in no case be entitled to derive benefits from it as the property built after 1-1-SL"

After the construction had been made and the appellant had resumed his possession , of the shop the appellant offered rent to

the respondent but the latter did not accept the same. Ultimately H he 'deposited the rent frbm April 1, 1962 to July 31, 1963 in court under s. 7 C of the Act. The respondent served a notice dated April 20, 1963 apparently under the provisions of the

H '-

LACHOO v. RADHEY SHYAM (Grover, J.) 695

Transfer of Property Act purporting to terminate the tenancy of the appellant.

This was followed by a suit which the respondent filed for ejectment of the appellant and for arrears of rent, damages etc.

The Munsif dismissed the suit holding that the appellant was entitled to the protection conferred by s. 3 of the Act which was applicable.

The District Judge, on appeal, took the contrary view and decreed the suit. The High Court affim1ed the judgme!J.t of the District Judge.

It was held, inter-a/ia, that the respondent was entitled to rely on s. 1-A of the Act and the appellant could not be given the benefit of s. 3.

Now there can be no manner of doubt that the tenancy between the appellant and the respondent was governed by the provisions of the Act prior to the reconstruction of the premises.

It appears to have been accepted that when the respondent made the re-construction after the agreement mentioned above in 196~ the buildings came to be constructed within the terms of s. 1-A of the Act.

That section s~, y5' that nothing in the Act shall apply to any building or part of a building which was under. erection or was constructed on or after January 1, 1951.

It will have to be decided whether it was open to the respondent 'to give up the benefit of this provision or waive it by means of an agreement of the nature which was entered into between the appellant and the respondent in June 1962.

According to the preamble on the cessation of the applicability of sub-rule 2 of rule 81 of the Defence of India Rules after September 30, 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide for the continqance during a limited period of powers to control the letting and the rent of accommodation and to prevent the eviction of tenants therefrom.

Section 3 imposed restrictions on eviction.

No suit could be filed in any civil court against the tenant for his eviction from any accommodation except on one or more of the grounds mentioned in sub-s. ( 1) of that section without the permission of the District Magistrate or of . the Commissioner to whom a revision lay against the order of the District Magistrate.

SectioP 5 contained provisions relating to control of rent.

The ether provisions of the Act need not be noticed.

It has never been disputed that the Act was -enacted for affording protection to the tenants against eviction except in the manner provided by the Act. It was also meant to regulate the le!tting of accommodatibn, fixing of rent etc., the provisions relating to which were all intended to confer benefits on the tenants against unreasonable and capricious demands of the landlords. At the same time it appears that the legislature was conscious of the fact that the Act might retard and slacken the pace of construction of new uild ings because the la.'1.dlords would naturally be reluctant to invest

[1971] 3 S.C.R

money in properties the letting of which would be governed by the stringent provisions of the Act.

It was for that purpose that the saving provision in s. 1-A seems to have been inserted.

The essential question that has to be resolved is whether S. 1-A was merely in the nature of an exemption in favour of the landlords, with regard to the buildings constructed after January 1, 1951 and conferred a benefit ort them which they could give up or waive by agreement or contractual arrangement and whether the consideration or object of

1 such an agreement would not be lawful within the meaning of s. 23 of the Indian Contract Act.

The general principle

1is that every one has a right ; to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.

Thus the maxim which sanction the nonobservance of the statutory provision is cuilibet licat renuntitire juri pro se introducto_ (See Maxwell on Interp!etation of Statutes, Eleventh Edition, pages 375 & 376.) If there is any express prohibition against contracting out of a statute in it then no question can arise of apy one entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Ad: is intended to have a more extensive operation as a matter of public policy. In Halsbury's Laws of England, Volume 8, Third Edition, it is stated in paragraph 248 at page 143 : '

"As a general e, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, -can contract himself out of the Act, unless! it can be shown that such an agreement is in the circumstances of the particular case contrary to public wlicy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void."

In the footnote it is pointed out that there are many statutory pro- G visions expressed to apply "notwithstanding any agreement to the contrary", and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of covenant (Law of Property Act, 1925). Section 23 of the Indian Contract Act provides :

"The consideration. or object of an agreement ii.

H lawful, unless-- 1

it is forbidden by law; or

I.ACHOO v. RADHEY SHYAM (Grover, J.)

is of such a nature that, if pennitted, it would defeat the provisions of any law; or is fraudulent; or

involves or implies injury to the person or property of another; or

the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful.

Every agreement of which the object or consideration is unlawful is void."

C It has never been the case of the respondent that the consideration or object of the agreement which was entered into in June 1963 was forbidden by law.

Reliance has been placed mainly on the next part of the section, namely, that it is of such a nature that it would defeat the provision of any law and in the present case it would be s. 1-A of the Act. ).

Now s. 1-A does not employ language containing a prohibition against or impose any restriction on a landlord and a tenant entering into an agreement that they would not be governed by that section.

We concur with the view expressed in Neminath Appayya Hanumannavar v. Jamboorao Satappa Kocheri(') that the words "if permitted it would defeat the provisions of any law" in s. 23 of the Contract Act defer to perfonnance of a:t agreement which necessarily entails the transgression of the provisions of any law.

What makes an agreement, which is otherwise legal, void is that its performance is impossible except by disobedience of law.

Clearly no question of illegality can arise unless the performance of the unlawful act was necessarily the effect of an agreement.

The following observations of Lord Wright in Vita Food Products Incorporated v. Unus Company

Ltd.(~) (in Liquidation) are noteworthy in this connection :

"Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a widr sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds."

We. are unable to hold that the perfonnance of the agreement which was entred inte> between the parties in the present case would involve an illegal or unlawful act.

In our judgment s. 1-A.

(I) AJ.R [1966] Mysore 154.

(2) [1939] A.C. 277, 293.

-was meant for the benefit of owners of buildings which were under

erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his. waiving or giving up or abandoning the advantage or the benefit c9ntemplated by the section. No question of policy, much less public policy, was involved and such a benefit or advantage could alway.:1 be waived. That is what was done in the present case and we are unable to agreei with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of s. 23 of the Contract Act.

In the result the appeal is .allowed, the judgment of the High Court is set aside and that of the trial court restored. The appel tant will be entitled to his costs in this court. ·

V.P.S.

Appeal allowed.

LACHOO MAL

RADHEY SHYAM

February 10, 1971

K. S. HEGDE

A. N. GROVER, JJ.

Control of Rent and Eviction Act, 1947

st January, 1951

s. 23

Contract Act, 1872

s. 23

Indian Contract Act

V. M. Tarkunde

Umlila Kapoor

R. K. Khanna

S. V. Gupte

M. Iii Goswami

Grover

Allahabad High Court

s. 3

Control of Rent and Eviction Act

Mathura

June 4, 1962

Tilakdwar

Rent Control and Eviction Act

s. 7

Transfer of Property Act

s. 3

s. 1

s. 3

s. 1

January 1, 1951

September 30, 1946

Uttar Pradesh

Section 3

s. 1

S. 1

s. 23

Indian Contract Act

England

Parliament

Law of Property Act, 1925

Section 23

Indian Contract Act

s. 1

s. 1

s. 23

Wright

s. 1

s. 23


STATE OF A~DHRA PRADESH & ORS.

LAVU NARENDRANATH & ORS. ETC.

February 11, 1971

[S. M. SIKRI, C.J., G. K. MITTER, K. S. HEGDE AND

P. JAGANMOHAN REDDY, JJ.]

ConsUtution oj India, 1950, Arts. 21 162 and Entry 6G, Ll51 I, 'Sl:h •.

VII-Executive Power of State-Scope of-Entrance test tiFTnedical colleges-If affects personal liberty-Scope of Entry 66-1/ affects Govt.'s power to hold rm.

Andhra University Act (2 of 1926), "· 23 and 33-Government If obliged to make selection according to qualifying examination.

Education-Medical Colleges-Admission to according to Entrancir /est held by Government-If substitute of addition to qualifyinf? test.

In the Andhra area of the State of. Andhra Pradesh there are four medical collegts run by the State Government.

In July 1970, the .Government prescribed for the first time an Entrance test for admission to the colleges and also prescribed the standard of eligibility for the test.

A large number of candidates. far in excess of the seats available took the test. Some of the candidates, who were unsuccessful, filed writ peti tions challenging the validity of the test prescribed and the method of selection for admission. They contended that, (I) under the provisions of the Andhra University Act, 1926 it was only the Academic Council of the Andbra University th; lt was competent to prescribe qualifications for admission into all degree courses, includirig the M.B.B.S. course in Govt. Colleges; and it was not for the Government to substitute itself for the statutory _, Academic oody and test the academic standards of candidates; (2) , the holding of the Entrance Test and making selections on the basis thereof in disregard of the marks obtained at the public exantination held by the' University epcroached upon the central subject listed in Entry 66 of List I of VU. Schedule to the Constitution; nnd, (3) the test interfered with the personal liberty of the candidates violating Art. 21 . ef the Constitution. The Hiah Court allowed the petitions. In appeal to thi• Court, ·

HELD : ( 1) Under Art. 162 of the Constitution the executive power of a State extends to the matters with resp.ect to which the Leaislature !>f the Stata has power . to make la~. If there is no leaislatlen cover. ma the field the State qovernment would un.doubtedly be competent to

prtscribe a test itself IC) screen the best candidates. (703 FHl

. The Andhra. Univers!ty Act, 1926, prescribes the minimum. qualification for enfrv mto a higher course of study.

A candidate bas not an unq1:1alified. right .to a seat in a medical college merely because he has obmed his'!P, r marks tha_n another candidate at the qualifying examination. Secllons 23 and 33 of the Act do not make it incumbent upon the Government to make their selection in accordance with the marks obtained bv. applicant-candidates at the qualifying examination.. . Since

all the apphcants could not be admitted, the Government which ran the colleges; had a right to make a selection out of the Jrge number of.

candidates and for this purpose they could prescribe a test of their own which was not against any law and prescribe the minimum number of marks at the qualifyini: examination for eligibility tu the Entrance test.

Merely because the Government supplemented the eligibility rule by a writt.11 test in slihjects with which the candidates were already familiar, their action cannot be impeached nor was there anything unfair in the test prescribed.

The test was not in substitution of the University Examination but something 11dditional to that; and the mere fact that the test was introduced for the first time would be no ground for holding that the method of selection was invalid [704 D-F; 708 F-G; 709 A-R, Fl

(2) The test prescribed by the Government in no way militates against the power of Parliament under Entry 66 of List I of the Vil Schedule to the <:; onstitution The Entry gives Parliament power to make laws for

layin&. down bow stanards in an institutino for higher education are to be determined and how they can be co-ordinated.

It has no relation to a teat prescribed by Government or by a universiy for selection of a number of students from out of a large number applying for admission to a particular course of stllily. [705 B-D]

(3) The test in no way, affects the personal liberty of the candidates $CCUJed under Art. 21 of the Constitution.

Everybody, subject to the eligibility prescribed by the University was at liberty to apply for ad mission to the medical colleges. The number of scats being limited every candidate could not expect !(> be admitted. The deprivation of personal liberty, if any, in the matter of admission to a medical college was according to procedure established by law. [709 H; 710 A-BJ

R. Chltralekha v. Sate ofi Mysore, Ll964] 6 S.C.R. 368, Rajendran v.

State of Madras, [1968] 2 .S.C.R. '786 and Chitra Ghosh & Anr. v. Union of l11dla, (1970) 1 S.C.R. 413, followed.

Spottswood v. Sharpe, '1~ L.Ed. 884 and Stawant ingh v. Pa.Bport Ofjicer, L1967] 3 S.C.R. 525, 540, referred oo.

CIVIL APPELLATE Jujt!SDICTION: Civil Appeals Nos. 2161-A and 2161-B of 1970.

Appeals by special leave from the judgment and order dated September 18, 1970 of the Andhra Pradesh High Court in Writ Appeals Nos. 587 and 588 of 1970.

S. V. Gupte and P. Phrameshwara Rao, for the appellants (in both the appeals).

P.A. Chaudhury and~. Rajendra Chowdhary, for respondents Nos. 1 to 7 (in C.A. No. 2161-A of 1970) and respondent No. 1 (in C.A. No. 2161-B of i970).

The Judgment of the Court was delivered by

I K Mitter, J.

These two appeals are from a comon jud~ ment of the High Court of Andhra Pradesh rendered m two wnt appeals from the judgment and order of a learned Judge of the

same court dismissing the applications filed by the appellants in tl!e High Court and some others under Art. 226 of the Constitution.

The central question in these appeals is, whether the Entrance Test prescribed under notification o! the Government dated July 23, 1970 for selection of candidates in the four Medical Colleges run by the State in the Andhra area is justified in law.

The facts are as follows.

In the Andhra area of the State there are four Medical Colleges run by the Government and the total number of sats available for admission in the first year Integrated M.B., B.S. course in all the four colleges is 550. The State Government has been issuing rules every year after the publication of the results of the H.S.C. or S.S.L.C. Board of the University for selection of candidates for admission into the Medical Colleges.

The test which was prescribed in July 1970 was the first of its kin~. The test was duly held after the Additional Director of Medical and Health Services had issued a notification inviting applications from candidates for the purpose on July 31,

1970.

Any one desiring to enter any of these Medical Colleges had to complete and file his application in the prescribed form by August 14, 1970 and appear at the Entrance Test to be conducted by the Director of Medical and Health Services on 30th August,

1970 at any of the centres indicated in the rules. There was an exemption from appearance at such examination for candidates who had taken an M.Sc. or B.Sc. Degree. The6overnment notification of 23rd July prescribed inter a1ia the following standard of eligibility : (I) Candidates possessing the minimum qualification of H.Sc. (Multipurpose),

I.S.C.,

P.U.C., A.I.H.S.C. or equivalent qualifications were eligible to appear for the Entrance Test provided that :

(a) In the above qualifying examinations, the candidaites had ta.ken up Physical sciences and Biological sciences for study and examination.

. ()>) Candidates had passed the qualifying examination m one attempt.

( c) Candidates had obtained not less than 50% of the marks in Physical and Biological Sciences put together in their qualifying examination.

(2) The Entrance Test was to consist of four papers ?f 50 marks each of the following subjects in two sessions :

(a) The subject of Physical Sciences (Chemistry and Physics). ·

702 SUPREME cOURT REPORTS

[1971] 3 S.C.R.

(b) The subj•ct qf Biological Sciences (Zoology and Botany).

' The candidates had to appear and answer two papers i.e. Chemistry' and Physical Sciences in the morning session and the remaining two papers i.e.

Zoology and Botany , in the evening session.

The Entrance Test was t6, be conducted in a single day in two sessions eac)l' of two hours' duration.

( 3) The standard of the test was to be comparable to the standard of qualifying examinations referred to above. ·

' ( 4) The test wa~ to be partly objective and partly narrative.

5,137 candidates applied for the Entrance Test out of which 4,669 were accepted for the , test. 4,331 candidates actually took the test.

As the number of :seats were limited the majority of the candidates who appeared for the test failed to secure admission.

Several writ petitions were filed in the. Andhra Pradesh High Court challenging the validity of the Entrance Test pres- cribed and the method of selection for admission to the Medical Colleges. ·

Writ.Petition No. 3859 of 1970 was filed on August 6, 1970, the main prayer being tnat the State should be directed to withdraw the notification published by the Additional. Director of Medical and Health Services with a further direction to the State to admit the _petitioners into the first year Integrated M.B., B.S.

course on the basis of the marks which had been awarded to them in the public Examinations.

Reliance was placed by the petitioners on certain provisions of the Andhra University Act (II of

1926) under which inter alia the Andhra University had been constituted as a body corporate with powers to provide for instructions in such branches of learning as might be considered suitable and to make provision for research and for the advancement and dissemination of knowlege, to hold examinations, to confer degrees on persons who, had pursued courses of study in the Universrty and to institute and maintain colleges and hostels, .etc. ' ' The contention of the petitioners was that it was the Academic: Council of the University which was competent to prescribe qualifications for admission intQ all degree courses in the University and it was not for the Government to substitute itself for a statutory Academic body and test academic standards of candidates seeking admission iinto the Integrated M.B .. B.S. course by the notification of the 23rd July.

This was described as an attempt to assess the merits of the candidates on academic standards different from those fixed by the University.

Holding the Entrance Test and making selection on the basis thereof in disregard of the marks obtained at the public .examinations he:ld by the University was further said to constitute an encroachment upon the Central subject listed in Entry 66 of List I of the Seventh Schedule to the Constitution.

Besides the above1 other grounds were also tak~, namely, that the Government oroer was discriminatory, that it was not valid for want of publication-in the official gazette, that the candidates were handicapped by reason of the fact that they did not have sufficient time to prepare themselves for the test and lastly that the test held by the Government interfered with the personal liberty of the candidates violating Art. 21 of the Constitution.

The learned trial judge dismissed the Writ Petitions. In appeal, however, the appellate Bench took a different view. 1n substance the appellate court was of opinion that although the State Government had a right to prescribe rules and lay down its own criteria for making admissions into the colleges, it could not do so in total disregard of the marks obtained by the students at the University or other public examination necessary for eligibility and they could only .do so if their action did not contravene the University Act or any other law. It was also held that the Government could hold a "test" in order to supplement or add to the qualifications already prescribed by the University or other educational authority for the purpose of assessing merits of candidates but they could not hold a test in substitution for the qualifying examinations, as this would be encroaching upon the jurisdiction of the universities concerned in the matter of laying doY..11 academic standards of the students.

We have therefore to examine whether the Government had a right to prescribe a test for making a selection of a number of candidates from out of the large body of applicants for admission into the first year M.B., B.S. course and whether such action of the Government contravened any provision already made by the legislature in that respect.

Under Art. 162 of the Constitution the executive power of a State extends to the matters with respect to which the legislature of a State has power to make Jaws but this is subject to the provisions of the Constitution. As the Government runs these colleges, it undoubtedly has a right and a duty to make a selection from the number of applicants applying for admission if all could not be admitted. If there was no legislation covering this field Government would undoubtedly be competent to prescribe a test itself to screen the best candidates. We have next to scrutinile the urovisions of the Andhra Universify Act relied on by the High Court to see whether the action of the Government ran counter to any of those provisions. Under s. 23

[1971 J3 S.C.R.

-Of the Act it was a body 'known as the Academic Council of the

University which had the, power by regulations of prescribing all courses of study and of determining curricula and the general control of teaching within the university and was responsible for the mainten3nce of the standards thereof.

Under sub-s. (2) (h) of the Act these powers include the power to make regulations regarding the admission bf students to the university or pi; escribing examinations to be recognised as equivalent to university examinations or the further qualifications mentioned in sub-s. (1) of s. 33 for admission to' the degree courses of the university.

Under s. 33 no student was to be eligible for admission to a course of study qualifying for admission to a post-matriculation university examination unless he had passed the examination pres- .cribed as qualifying for itdlllission to such course or an examination recognised by the Academic Council with the previous sanction of the State Government as equivalent th.ereto and possessed such further qualifications, if any, as might be prescribed.

Sri Venkateswara Universityi the only other University functioning in this area, was constituted under a similar statute and had almost identical provisions as th0se mentioned above.

' The above provisions of law do not mak-e it incumbent upon the Government to make their selection in accordance with the marks obtained by the applicant-candidates at the qualifying examination.

Obtaining 50% of t!ie marks at the qualifying examinations was the fir5t hurdle to be crossed by any candidate before he could submit an application for admission into a medi cal college.

The Government which ran the colleges had the right to make a selection out of a large number of candidates and for this purpose they could prescribe! a test of their own which was not against any law.

Merely because they tried to supplement the eligibility rule' by a written test in subjects with which the candidates were already familiar, their action cannot be impeached nor was there anything unfair in the test prescribed.

The test prescribed by the Govrnment must be considered in the light of a second hurdle' for the purpose of a screening to find out who of all the candidates applying should be admitted and who

hould be rejected.

Merely because the University had made regulations regarding tb'.e admission of students to its deree courses, it did not mean that any one who had passed the qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be entitled to admission' to such courses of study. If the number of candidates applying for such admission far exceeds the umber

of seats available the University will have to make its choice out of the applicants to finli out who should be admitted and . if instead of judging the cadidates y te number ?f m_arks ?blamed by them in the qualjfymg exa1!11i:iat1on the. Un_1vers1ty thmks fit to prescribe another test for adm1ss10n no ob1ection can be taken

,.-,

thereto. What the University can do in the matter of admissions to the degree courses can certainly be done by the Government in the matter of admission to the M.B., B.S. cours-~.

In our view the test prescribed by the Government in no way militates against the power of Parliamefa under Entry 66 of List B I of the Seventh Schedule to the Constitution.

The said entry provides:

"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."

The aLove entry gives Parliament power to make laws for laying down how standards in an institution for higher education are to be determined and how they can be co-ordinated.

It has no relation to a test prescribe, d by a Government or by a University for selection of a number of students from out of a large number applying for admission to a particular course of study even if it be for higher education in any particular subject.

Several decisions of this Court were cited at the Bar which throw some light on the subject.

In R. Chftralakha v. State of Mysore(') one of the contentions urged before this Court was that the Government of Mysore had no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the University.

What the Government had done in that case was to appoint one common selection committee for settling admissions to the Engineering Colleges and another such committee for settling admissions to Medical Colleges.

The Government of Mysore had sent a letter to the Director of Technical Education informing him that it had been decided that 25 per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Engineering Colleges shall be fixed as interview marks; it also laid down the criteria for allotting marks in the interview.

The selection committee conver~d the total , of the marks in the opiional subjects to a maximum of 300 marks and fixed the minimum marks for interview at 75. On the basis of the marks obtained by the candidates in the examination and those obtained at the interview, selectiohs were made for admission to Enuineering. and Medica~ <; olleges.

Sme of the candidates whose" applic.attons for adm1ss10n to the said collees were rejected filed petitions under Art. 226 of the Constitution in the High Court of

Mysore for quashing the orders issued by th~ Government in the matter of admission to the said colleges and for a direction that they should be admitted

1 in the Colleges strictly in order of merit i.e. according to the marks obtained in the qualifying examinations.

The arguments advanced before this Court were similar to those advanced before us.

Referring to s. 23 of the Mysore Univer£ity Act which g11-ve the Academic Council the power to prescribe the conditions for admission of students to the University and in exercise of Which power, the University had prescribed the percentage of marks which a student had to obtain for getting admission in me\lical or engineering colleges it was observed by this Court :

"The order of the Government does not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a selection committee and prescribe rules for selection of students who have' the minimum qualifications prescribed by the UniverSity.

The Government runs most of the medical and engineering colleges. . . . The colleges run by the Goverqment, having regard to financial commitments ahd other relevant considerations, can only admit a specific number of students to the said colleges.

They cannot obviously admit all the applicants who have secured the

1 marks prescribed by the University.

It has neeessarily

1 to screen the applicants on some reasonable basis.

The aforesaid orders of the Government only prescribed criteria for making admissions to colleges from among s, udents who secured the minimum qualifying marks prescribed by the Universit'IJ.

Once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it.

This is a power which every private owner of a college will have, and the Government which run its own colleges cannot be denied that power."

Referring to Entry 66 in List I it was said :

~1£ the impat of the State law providing for such standards on Entry 66 of List I is so heavy or devastating as to wipe out or appreciably abr!dgt~ th~ c.entral field, it may be truck down. But that 1~ a questJol! of fact to be ascertained in each case.

It 1s not possible to hold that if a State legislature made a law prescribin.g a higher percentage of marks for extra-cumcular acti-

G • H

vities in the matter of admission to colleges, it wo11Jd be

d1ectly encroaching on the field covered by Entry 66 of List) .of the Seventh Schedule to the Constitution. If so, zt. zs. n?t d!sputed that the State Government would b.e wJthm its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law."

With regard to the scheme of selection in that case it was said :

. "SI? lo_ng as the order lays down a releant objective ntena and entrusts the business of selection to

qualfied persons, this Coiirt cannot obviously have any say m the matter.

In this case the criteria laid down by the G?vernment are certafoly relevant in the matter of awardmg marks at the interview."

With respect, it seems to us that the observations above quoted are equally applicable to the case before us, the only difference being that whereas in the Mysore case marks were awarded 011 the basis of the impression created at the interview and added in -'11 certain manner •to the marks obtained at the university examination in the case before us the marks obtained at the University only make candidates eligible to appear at the written test and it is the last test which is the determining factor as to who should be admitted and who should be 'rejected.

In Rajendran v. State of Madras(') the petitioners challenged an order of the State Government by which rules were promulgated for selection of candidates for admission to a medical course.

These rules inter alia provided for selection and classification of candidates including one for awarding a maximum of 75 marks for extra-curricular activities which had been.specified uader five heads.

Turning down the contention that there was no objective test laid down in the rules for the interview it was said : (p. 795)

"So far as admission is concerned, it has to be made by those who are in control of the Colleges,-in this case the Government, because the medical colleges are Government colleges affiliated to the Univetsity.

In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qualifications.

This was what was done in these cases and therefore the selection cannot be challenged on the ground that it was not inaccordance with the University Act and the Rules framed thereunder."

In Chitra Ghosh & another v. Union of India and C!fhers(') the appellants who had passed the pre-medical examination of the Delhi University obtaining over 62 % marks were refused admission to the first year M.B., B.S. course at the Maulana Azad Medical College which was a constituent of the University of Delhi and was established by the Government of India.

The college prospectus contained certain rules relating to the admission of students which made reservations of places in the college in favour of various ca1egories of students and provided for nominations to be mad~ by the Central Government to fill some of the reservrd places.

The appellants challenged primarily the power of the Central Government to make the nominations and contended that nine students n, ominated by the Government had obtained lower marks than theirs in the pre-medical examination so that if they were to be excluded, the appellants would become entitled to be admitted in the college.

Rejecting this contention it was said :

"It is the Cen1ral Government which bears th~ financial burden of running the medical colleges. It is for it to lay down the criteria for eligibility.

From the very nature of things it is not possible to throw the admission open to students from all over the country.

The Government cannot be denied the right to decide from what sources the admissions will be made.

That essentially is a question of policy and depends iter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide fai Jities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification." The above case is not directly in point but it at least shows that a candidate has not an unqualif..d right to seat in a medical college merely because he has obtained higher marks than another candidate at the qualifying examinMion.

G Mr. Choudhury the learned advoc, ate for the respondents put before us his contentions with regard to the above in three propositions, namely,. ( l) The State has no power to trench upon the powers given to the University.

The test prescribed contravenes s. 23 of the Act. (2) Even if the matter is not covered by the Universities Act the executive cannot be allowed to usurp a Jaw-making power in prescribing a test" ( 3) The rule . affts prejudicially the right conferred on candidates by the Umvers1ty Regulations.

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

. In our view there is no substance in any of the contentions as will be apparent from our conclusions noted above and the decisions of this Court bearing on this point.

The University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study.

There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility.

The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission : the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determining factor.

Mr. Choudhury faintly tried to urge other points which may be briefly noted.

One of the grounds was that some of the questions were not covered b} the curricula by the P.U.C. or the S.S.L.C. examinatisms.

This was not a ground which has any merit. If some of the questions were outside the syllabi all the candidates were at an eqnal disadvantage.

Alternatively the questions might have been put to find out whether the candidate's knowledge was limited to the syllabus or whether he was sufficiently interested in the subjects so as to acquire knowledge beyond the prescribed curriculum.

The next ground urged was that the written test was in substitution of the University examination and was altogether a novel experiment, no such test having been held before.

In our view there is no substance in this contention either.

The written test was not in substitution of the University examination but it was something additional to that and the mere fact that a written test had been introduced in the year 1970 would be no ground for holding that the method of selection was invalid.

Further no complaint can be made that the notice of examination was all too short or that it was never published in the Gazette. If it was short it affected everybody equally adversely and the figures showing how many candidates had taken the test demonstrat~ v7ry

G. clearly that everybody who had cared t.o s!t for the exan_i.maon had an opportunity of doing so.

Pubhcahon of the notification in the Gazette was not called for by any law.

Lastly it was urged that such test affected the peson.al liberty of the candidates secured under Art. 21 of the Conshtuhon. We fail to see how refusal of an application to enter a medical college can be said to affect one's personal liberty guaranteed under that article.

Everybody, subject to the eligibili!Y _prescribed by .the University was at liberty to apply for adm1ss10n to the medical college. The number of seats being limited compared to the

number of applicants every candidate could not except to be ad1!1itted.

Once it is held that the test is not invalid the deprivation of personal, liberty, if any, in the matter of admission to a' medical college was according to procedure established by law. 9ur 8:tten.tio, n was drawn to the case of Spottswood v. Sharpe('1) m which It was held that due process clause of the Fifth Amendment of the American Constitution prohibited racial segregation in the District of Columbia.

Incidentally the court made a remark (at p. 887) :-

"Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint.

Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper govermnental objective.

Segregation in public education is not reasonably related to any proper governmental objective, and thus. it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of !heir liberty in violation of the Due Process Clause."

The problem before us is altogether different.

In this case everybody subject to the minimum qualification prescribed was at liberty to apply for admission. The Government objective in selecting a. number of them was certainly not improper in the circumstances of the case.

Learned counsel also referred us to an observation of this Court in Satwant Singh v. Passport Officer(') that :

" 'liberty' in our Constitution bears the same comprehensive meaning as is given to the expression 'liberty' by the 5th and 14th Amendments to the U.S. Constitution and the expression 'personal liberty' in Art. 21 only excludes the ingredients of 'liberty' enshrined in Art. 19 of the Constitution."

We do not find it necessary to dilate on this point in view of our conclusion that even if personal liberty extends to such conduct G there has not been any deprivation thereof in violation of any procedure established by law.

In the resuit the appeals are allowed, but in the circumstances we leave the parties to bear their own costs.

V.P.S. . . Appeals allowed.

(!) 98 L.Ed. 884.

918 Sup.C.I.171-20/6/72--GIPF.

STATE OF A~DHRA PRADESH & ORS

LAVU NARENDRANATH & ORS. ETC

February 11, 1971

S. M. SIKRI, C.J.

G. K. MITTER

K. S. HEGDE

P. JAGANMOHAN REDDY, JJ.

Arts. 21

Andhra University Act

Andhra

Andhra Pradesh

Andhra University Act, 1926

Art. 21

Art. 162

Parliament

Art. 21

(1970) 1 S.C.R. 413

1967] 3 S.C.R. 525

S. V. Gupte

P. Phrameshwara Rao

P.A. Chaudhury

Rajendra Chowdhary

I K Mitter

High Court of Andhra Pradesh

Art. 226

H.S.C. or S.S.L.C. Board

July 31,

1970

30th August,

1970

Andhra Pradesh High Court

Andhra University

Seventh Schedule

Art. 21

Art. 162

s. 23

s. 33

s. 33

Venkateswara Universityi

Parliamefa

Seventh Schedule

Government of Mysore

Art. 226

s. 23

Seventh Schedule

Delhi University

Maulana Azad Medical College

University of Delhi

Government of India

Central Government

Cen1ral Government

Choudhury

s. 23

P.U.C.

S.S.L.C.

Art. 21

District of Columbia

Art. 21

Art. 19


STATE OF KERALA & ANR. v.

R. E. D'SOUZHA

[S. M. SIKRI, C.J., P. JAGANMOHAN REDDY AND J. D. DUA, JJ.) February 12, 1971

Factories Act, 1948, s. 2(1)-"Worker"-Who is-Constitution of India Article 134(1) (c)-Principles already settled by Supreme Court- Questions concerning application thereof-Whether raise issues fit for app'"/ to Supreme Court.

After catches of prawns made from time to time were brought to the respondent's premises, a casual and irregular group of women and girls of the locality came at their convenience to do the peeling, washing, etc. at piece-rates. There were no specified hours of work and after finishing their work, the workers would go on to do similar work at other premises in the locality.

The respondent's conviction under s. 92 of the Factories Act for, inrer alia, using his premises as a factory without obtaining registration, etc. was set aside in revision by the High Court on the view that the workers in question were not ' 1workers" within the meaning of the Factories Act. On appeal to this Court, '

HELD : The High Court had rightly decided that the workers in the present case \vere not "workers" covered by s. 2 ( 1) of the Factories Act.

(714 CJ

Dharangadhara Chemical Works Ltd. v. State of Saurashtra, A.I.R. l'f57 S.C. 264: Chintaman Rao & An'other v. The State of Madhya Pradesh, (1958] S.C.R. 1340; State of Kera/a v. V. M. Patel, [1960] K. L, J. 1524 and Birdhichand Sharma v. First Civil Judge, Nagpur, [1961] 3 S.C.R;

I 61; applied.

Obiter :

After this Court had laid down a test to be applied for determinin~ who were '"workers" within the meaning of the Factories Act, the High Court should have freated the question of principle as no longer op"n.

The High Court had cortified the case to b& fit for appeal as it felt that the question involved is of general importance in the State. If the qucs tion of principle has been settled by this Court, the application of the principle to the facts of a particular case does not make the question a fit one for the Supreme Court within Article 134(1) (e) of the Constitution. (714 DJ

CRIMINAL

APPELLATE JURISDICTION : Criminal Ap{leals Nos. 205 and 206 of 1968.

Appeal from the judgment and order dated February 21, 1968 of the Kerala High Court in Criminal Revision Petitions Nos. 415 and 416 of 1967.

D. P. Singh and M. R. K. Pillai, for the appellants (in both the appeals) .

G: B: Pai, P. N. Tiwari, 0. C. Mathur and Bhaian Ram Rakh1am, for the respondent (in both the appeals).

The Judgment of the Court was delivered by

S~ C.J. These appeals are on certificates granted by !he High Court of Kerala. The only question in these appeals 1s whether the workmen doing work in the premises of the respondent are workers within the meaning of Sec. 2 (1) of the Factories Act,, 1948.

Section 2 ( 1 ) of the Factories Act, 194 8 reads as .follows :

" 'Worker' me11ns a person employed, directly or through any agency, whether for wages or not, ill any manu!acturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process;"

The respondent was convicted under Sec. 92 oI the Factories Act for using a building as a factory without obtaining the previous permission in writing of the Chief fuspector of Factories. for failing to apply for registration and grant of licence for the factory and for failing to maintain a muster roll of the workers employed in the factory in one case, and for failing to give attendance cards to every person employed in the factory in the other case.

The respondent was sentenced to pay a fine of Rs. 20/- in each case. He was also directed under &:. 102 of the Factories Act to rectify the defects within a specified period.

The respondent filed a Revision Petition in the High Court.

The High Court held that the work that was being carried out' in the premises of the respondent amounted to manufacturing process. This question has not been debated before us. The High Court further held that the workmen working in the premises of the respondent were not 'workers' within the meaning of Sec. 2 (1) of the Factories Act. It is this part of the decision that has been challenged in appeal by the State of Kerala.

The natrire of the work done was described in a letter produced by the prosecution. This letter is not printed on the record but the High Court summaries the document as follows :-

"This document shows that as and when catches of prawns are made, a consignment of prawns is brought to the premises in a lorry at any time of the day or the night, that the women and girls . of the locality, ho form a "casual, heterogeneous, miscellaneous and 1rre-

KERALA v. o'SOUZHA (Sikri, C./.)

I gular group", come at their convenience and do the peeling, washing etc., at piece-rates; and that there are no specified hours of work, nor is there any control by the Petitioner over the irregularity and attendance or of the nature, manner or quantum of their work. The same workers after finishing the work in the premises of the petitioner, go to other similar premises in the locality where other lorry loads of prawns are taken. In other words, if more prawns are caught at a particular time,. they are brought and distributed among several premises are brought and distributed among several premises like the Petitioner's and the local women and girls collect at the several premises and do the work at piecerates. The same workers do not go to the same premises on different occasions, and the owners of the several premises do not have any control over the manner or quantum of work these women and girls do.

The rates of remuneration naturally depend upon the quantity of prawns available, the number of women afld girls that come to do the work, the hour of the day or the night when the catches arrive, etc. Sometimes, for days no work is done in the premises."

71;).

The High Court after referring to the decisions of this Court in Dharangadhara Chemical W arks Ltd. V.

State of Saurashtra( 1), a decision under the Industrial Disputes Act, Chintaman Rao & Another V. The State of Madhya Pradesh(') 3illd State of Kerala v. V. M. Patel('), decisions under the Factories Act, held :

"It will be apparent that the women ll!ld gir1s who assemble and do the work when a catch of prawns is brought to the premises of the petitioner are not 'work ers' coming within the definition of the Factories Act.

The Petitioner does not insist as to who should do the job or how it should be done; he only wants the work to be done for the agreed remuneration without spoiling the prawns i.e. within a short time. (A quantity of prawns is taken for peeling. cteaning, washing etc. by a particular individual for a fixed remuneration, and that mdividual, with the assistance of others whom she employs, finishes the job as quickly as possible .. "

The learned Counsel for the appellant contended that it was: erroneous on the part of the High Court to have applied the

(I) A.l.R. 1957 S.C. 264

(2) (1958] S.C.R. 1340

(3) (1960] K.L.J. 1524

decision of this Court in Dharangadhara Chemical Works Ltd.

Vs. State of Saua_shtra('), a cas~ under the Industrial Disputes Ac:t, to the defimuon of 'worker' 1n the Factories Act. He fairly

pouted out !at another Division Bench applied the same test in a dispute ansmg under the Factories Act. (see Birdhichand Sharma v. First Civil Judge Nagpur)( 2 ). But, nevertheless, he urged that we should refer the case to a larger Bench. We see nothing wrong in the decision of this Court in Chintaman Rao &: Another v. The State of Madhya Pradesh(").

On the contrary, we are of the opinion that the case has been rightly decided. The scheme of the Factories Act clearly, shows that the test adopted by this Court is the correct one. It would be impossible to apply many provisions of the Factories Act to the 'workers' of the type we are concrned with here if we were to hold that they were 'workers' within the definition of the Factories Act.

We are really surprised that the High Court certified this case to be a fit case far appeal to this Court. After this Court had laid down a test to be applied for determining who were 'workers' within the meaning of the Factories Act, the High Col!rt should .have treated the question of principle as no longer open. The lllgh Court had certified the case to be fit for appeal as it felt that the question involved is of general importance in the State. If the question of principle has been settled by fhis _Court, the application of the principle to the facts of a pariicular case does not make the question a fit one for the Supreme Court within Articl~

134 (1 )( c) of the Constitution. In the result the appeals fail and are dismissed.

'R. K. P. S.

Appeals dismissed.

(I) A.LR. 1957 S.C. 264

(2) [1961) 3 S.C.R.161

(3) [1958) S.C.R. 1340.

STATE OF KERALA & ANR

R. E. D'SOUZHA

S. M. SIKRI, C.J.

P. JAGANMOHAN REDDY

D. DUA, JJ.

February 12, 1971

Factories Act, 1948

s. 2(1)

Constitution of India

Article 134(1)

Supreme Court-

Supreme Court

s. 92

Factories Act

Factories Act

s. 2

Factories Act

Factories Act

Article 134(1)

Kerala High Court

M. R. K. Pillai

Pai

P. N. Tiwari

C. Mathur

Bhaian Ram Rakh1am

High Court of Kerala

Sec. 2

Factories Act

Section 2

Factories Act

Sec. 92

Factories Act

Factories Act

Sec. 2

Factories Act

Kerala

Industrial Disputes Act

Factories Act

Factories Act

Dharangadhara Chemical Works Ltd.

State of Saua_shtra

Factories Act

Factories Act

Factories Act

Factories Act

Factories Act