C. SANKARANARAYANAN ETC.

STATE OF KERALA May 4. 197L

[K, S. HEGDB AND A N. GROVER, JJ.]

Kera/a Education Rules, 1959-Provisions of Ch. XX, Ch. XXVllA. aJtd XXVIIB are mutually exclusive-Teacher in aided school who ha.r exercised option under r. 2 of Ch. XIV(c) is governed by Chapter XXV118-Can,. not claim superannuQlion on basis of r. 8 of Ch. XXVllA..

Constitution of India, 195(}-Rule-making power of Government llJU!er Art. 309 is not controlled by any agreement between Government and employees-Change of age of retirement from 58 to SS does not attract Art. 311(2).

The appellant in C.A. No. 1789/69 was a teacher in a private aided school in Kerala while the other appellants were at the relevant time teachers in government schools. The teachers associations of Government aa well as aided schools submitted a memorandum to the Government making various demands, one of them being that the age of retirement of school teachers should be raised to 60 years.

On July 1966 the Government issued an order by which the age of retirement was raised from 55 to 58 years. However on May 4, 1967 another order was made by Government in supercession of the earlier orders and the age of retirement of all government employees and aided school teachers was again fixed at SS yean. Ou

both occasions necessary amendments were effected in the Kerala Service Rules made by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution, as well as in the Kerala Education Rules, 1959 framed by the Government under s. 36 of the Kerala Education Act 6 of 1949. Tho 1959 Rules originally contained Ch. XXVIL In February 1965 this Chapter was renumbered as Ch. XXVll-A. Anothtr Ch. XXVll-B was added. Rule in Ch. X:XVll-A appearing under the head 'pension' provided that in tho case of those in service of any aided school prior to 4-9-1957 the age of retirement shall be 60 years. In Ch. XXVII-B however it was laid down that the rules therein shall apply to teachers in aided schools to whom the rules in Ch. XIV(c) Kerala Education Rules applied.

Rule 4 of the said Chapter further laid down that the date of compulsory retirement on superannuation applicable to teachers of Government schools shall apply to teachers of aided schools. Rule 2 of Cb. XIV

(c) provided that teachers who were in service on 1-10-1964 would have an option either to continue under the Rules in Ch. XIV(B) or to come under the Rules in that Chapter i.e. XIV(C). Such option when exercised was to be deemed to be final. The appellant in C.A. No. 1789/69 exercised bis option within the period limited therefore and thus came to be governed by the Rules in Chapter XIV(C). When the Government sought to retire the appellants at the age of 55 years they filed writ petitions in the High Court. The petitions were dismissed. Ir appeal by special leave to this Court,

HELD : (i) The division benct. f the High Court was right in holding that the provisions of Ch. XXVIIA and Ch XXVllB were mutually exclu sive. Chapter XXVIIB makes independent and separate provisions which are inconsistent with those contained in Cb. XXVIIA. As the appellant in C. A, No. 1789/69 was a teacher.in an aided school the age of compulsory

c. SANKARANARAYANAN v. KERALA (Grover, J.)

r.etirement by virtue of r. 4 of the Ch. XVIIB would be the same as that of teachers of government schools. The age of compulsory retirement for the latter class of teachers was 55 years and it followed that that would be the age of superannuation for the aforesaid appellant.

Rule 2(a) of the Ch. XIV(c) expressly states that teachers who come under the provisions of Ch. XIV(c) shall retire at the age of 55. Rule 8 of Ch. XXVIIA could not be applied to the said appellant as that was a general rule and when he opted to be governed by the rules in Ch. XXVIIB and Ch. XIV(c) he was relegated to the same position as that of a teacher of Government school even in the matter of superannuation. [6580-0]

(ii) The power of the Government under Art. 309 of the Constitutiou to make rules regulating the conditions of service of government employees or of teachers in the aided schools under s. 12 of Act 6 of 1959 could in no way be fettered by an alleged agreement between the governo:ient and

teachers even if such an agreement was proved. [659B-C]

(iii) Tho rle of estoppel also could not be invoked in the circumstances of the case. There was no question of any representation having been made by the Government which was acted upon to their detriment by the ap pellants. [659F1

Union of India & Ors. v. MI s lndo-Afghan Agencies Ltd. [1968] 2 S.C R. 366, distinguished.

(iv) Change in the rule relating to retirement can be validly made and it does not attract. either Art. 311(2) or Art. 14 of the Constitution. [660C]

Bishun Narain Mishra v. State of Uttar Pradesh & Ors., [1965] I S.C. R: 693, relied on.

(v) The contention that once the age of retirement was raised to 58

it could not be reduced to 55 owing to the provisions of rr. 5 and 6 of the Kerala Service Rules was not raised before the division Bench of the High E O:>urt. The normal practice of this Court is not to allow a new point to be raised except in a case of very special nature. [660F1

ClvJL APPELLATE JURISDICTION : Civil Appeals Nos. 1789 to 1791 of 1969.

Appals by special leave from the judgments and orders dated F Jnne 11, 1969, imd July 10, 1969 of the Kerala High Court in Writ Appeals Nos. 126 nf 1968 and 762 of 1969.

K. T. Harindranath, Vishnu Bahadur Saharya and Yougindra Khushalani, for the appellants (in all the appeals).

A. R. Somnath Iyer and M. R. Krishna Pillai, for the respon- G dent (State of Kerala) (in all the appeals).

P. C. Chandi, for the interveners (in all the appeals).

The Judgment of the Court was delivered by

1 Grover, J.-These appeals by special leave are from a judgment of a division bench of the Kerala High Court. 11ffinning the decision of a learned single judge who had dismissed the writ petitions of the appellants.

SUPREME COURT REPORTS [1971) SUPP. s.c.a.

The appellant in C.A. 1789 / 69 entered service as a teacher in a private aided school '?n. March ~4. 1~4?. Doth the appellnts m C.A. 1790 / 69 had iomed service ongmalJy as teachers in aided schools but they entered government school service on

ugust 17, 1958 and December. 1.3. 1948 respectively. Similarly m C.A. 1791/ 69 the appellant iomed government service as a teacher and attained the age of 55 on July 2, 1968.

It appears that on November 22, 1965 all associations of government and private aided school teachers of which the appellants were members submitted a memorandum to the government making various demands. One of these (No. 11) was that the age of retirement of school teachers should be raised to 60 years. On

July 14, 1966 the government issued an order by which the age of retirement was raised from 55 to 58 years.

Paragraph 8 of this order was in the following terms :-

"The age of retirement of all teachers including Head Masters of aided schools will be raised to 58 with effect from 1-7-1966. This will be subject to the condition that the appointing authority may with previous approval of the Director of Public Instruction in the case of High and Training Schools require the teacher to retire after he attains the age of 55 years, on three months notice without assigning any reason. The teachers may also after attaining 55 years, voluntarily retire after giving three months notice to the appointing authority."

The order mentioned above was folJowed by an amendment in the relevant rules in the Kerala Education Rules framed under the Kerala Education Act, 1958 (Act 6 of 1959). On May 4, 1967 another order was issued by the government in supersession of the previous orders. By this order the age of compulsory retirement of all government employees and aided school teachers whose age of retirement on superannuation under the existing order was 58 years was lowered to 55 years.

It was, however, stated that all those who had already crossed the age of 55 years or who might attain the age of 55 within a period of three months from the date of the order would retire only on the date of expiry of three months. The necessary amendments were formally made both in the Kerala Education Rules framed under the Act 6 of 1959 and the Kerala Service Rules made by the Governor in exercise of the powers conferred by the proviso to Article 309 of the Constitution.

We may at this stage refer to. the elevant statutory provisions and the Rules. Act 6 of 1959 was enacted to provide for the better organisat:t"on and development of educational institutions in the State. Section 12(1) of the Act provides that the

c. SANKARANARAYANAN v. KEKALA (Grover, J.) 6 57

conditions of service of teachers in aided schools including the A conditions relating to pay, pension, provident fund, insurance and age of retirement shall be such as may be prescribed by the government. Section 36 confers power on the government to make rules. The rules wmch have heeri framed under s. 36, namely, the Kerala Education Rules 1959, here.in-after called the "Education Rules" originally contained Chapter XXVII. In February B 1965 this Chapter was renumbered as XXVIIA. Another Chapter XXVIIB was added. Rule 8 In Chapter XXVIIA appearing under the head "pension" is in the following terms:-

"8. The age of retirement on superannuation shall be 55 years.

Note.-In the case of those who were in service of any aided school prior to 4-9-1957 the age of retirement on superannuation shall be 60 years subject to the con dition that the service beyond 55 years shall not qualify for pension and gratuity under these rules."

In Chapter XXVIlB the following rules may be noticed:

"I. The Rules in this Chapter shall come into force on J.!(J.J964.

2. These Rules shall apply to teachers In aided schools to whom the rules in Chapter XIV(Cl Kerala

Education Rules apply.

E 3 ................................... ..

4. The date of compulsory retirement on super annuation applicable to teachers of government schools shall apply to teachers of aided schools."

Chapter XIV(Cl relating to conduct rules contains two provisions which are material and which may be reproduced:

"I. The Rules in this Chapter shalJ apply to-

(i) Teachers of aided schools who are in service on J.10..1964 and who opt under Rule 2 to be governed by these Rules ; and

(ii) Teachers appointed after 1-10..1964;

. (Provided that nothing contained in this Chapter shall apply to teachers who continue in service after at taining the age of 55 on or before 4-5-1967.)

2. Subject to the provisions of Rule I teachers who in service on ).)()..1964 shall be given the option either to continue under the Rules in Chapter XIV<Bl or to 4Z:-l S.C. llldla/71

SUPR~ME COURT REPORTS (1971] SUPP. s.c.R.

come under these Rules. Such option shall be exercised within a period of three months from the commencement of these Rules, or within such further time as Governn; ient may specify in this behalf. The option once exercised shall be final.

Teachers who have not exercised . any option within the prescribed period shall be deemed to have opted these Rules."

t is commo:i gi:ound that the appellant in C.A. 1789/69 exercised the option m terms of the above rules. Thus by virtue of Rule 2 in Chapter XXVII(B) read with Rule 4 the date of his compulsory retirement on superannuation would be the same as was applicable to teachers of government schools.

We may first deal with the contentions raised on behalf of the appellant in the above appeal. It was claimed on his behalf that the provisions of Chapters XXVII-A and B were not nmtually exclusive and he was entitled to the benefit of Rule 8 in Chapter XXVII-A.

As he was in service of an aided school prior to September 4, 1957 his age of retirement of superannua, tion was to be 60 years. The approach of the division bench was that the provisions of Chapter XXVIIA and XXVIIB when read together leave no doubt that the two chapters are mutually ex elusive. Chapter XXVIIB makes independent and separate provisions whfoh are inconsistent with those contained in Chapter XXVIIA. As the appellant in C.A. 1789 / 69 is a teacher in an aided school the age of complllsory retirement by virtue of Rwe 4 of Chapter XXVllH would be the same as that of teachers of government schools. The age of compulsory retirement for the latter class of teachers was 55 and it followed that that would be the age of superannuation for the aforesaid appellant. Reliance was placed also on Rule 2(a) of Chapter XIV(C) which expressly states that teachers who come under the provisions of Chapter XIV(C) shall retire at the age of 55. We fully concur with the view of the learned judges of the High Court and are unable to accede to the contention that in spite of the clear wording of the various rules to which reference has bee.n made the appellant, who is a teacher in an aided school, can get the benefit of Rule 8 of Chapter XXVIIA. That cannot possibly be applied to him as that was a general rule antl when he opted to be governed by the rules containeli in Chapter XXVIIB and Chapter XIV(C) he was relegat(\<l to the same position as that of a teacher of government school even in the matter of superannuation. ·

Another point which has been strenuously urged is th, at. the qovernment orders whi9h followed the memorandum submitted bv the teachers were the result of an understanding which c9uld well be regarded as a bindipg agreement or contract between the

overnment and tlie teachers from which it was not open to the 0 .

c.sANKARANARAY/.NAN v. Klll!.ALA (Grover, J.)

government to resile unilaterally. Alternatively a rule similar to tha.t of estoppel could be invoked. The first limb of this argument was disposed of by the learned single judge by rightly pointing out that the power of the government under Art. 309 of the Constitution to make rules regulating the conditions of service of government employees or of teachers in aided schools under s. 12 of Act 6 of 1959 could in no way be fettered by any agreement even if such an agreement was proved. We have not been shown any principle or authority on which any agreement or contract could be spelt out from the document relied upon. Nor is it possible to understand how the power conferred by Art. 309 of the Constitution or by the statutory provisions could be curtailed or fettered iri any manner by any alleged agreement or contract.

The rule of estoppel can hardly be invoked in the circumstances

of the case although support was sought from certain decisions of this Court.

In Union of India & Ors. v. MI s. Inda-Afghan Agencies Ltd., (') this Court held that where a person had acted upon the representation made in the export promotion scheme that import licence upto the value of the goods exported would be issued and had actually exported goods his claim for an import licence for the maximum value permissible by the scheme could not be arbitrarily rejected. It was observed that the claim in that case was founded upon the equity which arose as a result of representation made on behalf of the government in the export promotion scheme and the action ta!Cen by the respondents there acting upon the representation. Even though s. 115 of the Evidence Act was not in terms applicable it was still open to the respondent who had acted on that representation to claim that the government should be bound to carry out the promise made by it though not recorded in the form of a formal contract as required by the Constitution. These principles can hardly be applied here because there is no question of any representation having been made by the government which was acted upon to their detriment by the appellants. Moreover the conditions of service could be indisputably changed in exercise of the powers contained in Article 309 of the Constitution and Act 6 of 1959. In such a situation it was not open to the appellants to invoke the principle of the rule of estoppel.

Our attention has also been invited, particularly on behalf of the appellants in C.As. 1790 and 1791, to exhibits P-6 and P-7. Exhibit P-6 is a copy of proceedings of the District Education Officer, Kottayam. It contains a mention of order dated Ma'.cb.

1 O, J 967 in which it is stated that the age of compulsory rettrement of all officers in the State had been raised to 58 as per the

(1) [1968] 2 S. C. R.366.

SUPP.EXI! COUP.T JlEl'OllTS [l!nl) SUPP. S.C.I..

government orders mentioned therein.

The continuance beyond the age of SS of these teachers was subject to suitability. A list of certain teachers was given who were allowed to continue in service till SS years of age. Similarly exhibit P.7 is a copy of the proceedings of the District Educational Officer, Palgbat, in which the names of teachers who were to continue beyond the age of SS was given. This was apparently done after the age of superannuation had been raised to 58 with effect from July 1, 1966 vide exhibit P-4 (G.0.) dated July 14, 1966.

But then, as has been noticed before, the age of retirement was again lowered to 55 years.

Change in the rule relating to retirement can be validly made and it does not attract either Art. 311(2) or Art. 14 of the Constitution: see Bishun Narain Mishra v. Stale of Uttar Pradesh & Others{').

Reliance has also been placed on behalf of the appellants on Rules 5 and 6 of the Kerala Service Rules. According to Rule 5 nothing in the Rules or in any Rule made thereunder shall operate to deprive any person of any right or privilege to which he is entitled by or under any law or by the terms of ay contract or agreement subsisting between such person and government on the date the Rules came into force.

Section 6 says that subject to the provisions of Rule 5 nothing in the Rules or any rule made under the Rules shall operate to effect to the disadvantage of any person holding a substantive post under government to whom the Rules apply, "the conditions of service in respect of pay, leave, allowances, pension or any other matter which are applicable to him (a) on the date these rules came into flOrce, or (b) by virtue of any order or rule made by the government unless such person gives his consent". The point sought to be made is that once the age of retirement was raised to 58 it could not be reduced to 55 owing to the provisions of these Rules.

This matter was not raised before the division bench of the High Court and the normal practice of this Court is not to allow a new point to be raised except in a case of a very spedal nature. We find no reason or justification for entertaining this contention for the first time in this Court in the present appeals.

The appeals fail and are dismissed but we leave the parties to bear their own costs.

G.C.

Appeals dismissed.

(l) [196S] I S. C.R. 693.

C. SANKARANARAYANAN ETC

STATE OF KERALA

A N. GROVER, JJ.

Education Rules, 1959

Constitution of India

Art. 309

Art. 311(2)

Art. 309

Kerala Education Rules, 1959

s. 36

Kerala Education Rules

Art. 309

s. 12

[1968] 2 S.C R. 366

Art. 311(2)

Art. 14

Article 309

Section 12(1)

Section 36

s. 36

Kerala Education Rules 1959

Education Rules

Art. 309

s. 12

Art. 309

s. 115

Article 309

Art. 311(2)

Art. 14

Section 6


SRIRAM NARAYAN MEDW

STATE OF MAHARASHTRA

May 4, 1971.

(S. M. S11CRJ, C. J., G. K. MITTER, C. A. VAIDIALINGAM, B

A. N. RAY AND P. JAGANMOHAN REDDY, JJ.)

Bombay Tenancy & Agricultural Lands (Amendment) A1ct, 1964 (MaharQ.Shtra Act 31 of 1965)-Validity of amendments challenged under Arts. 19 and 31 of the Constitution-Act whether protected from such challenge by Art. 31A.

The Bombay Tenancy & Agricultural Lands Act, 1948 was passed in furtherance of the State's policy of social welfare and to give effect to agrarian reform. By the Constitution First Amendment Act 1951 the said A.ct was included in the NiJt.th Schedule and came within the purview of Art. 318 of the Constitution. In 1956 the State Legislature in crder lo implement the Directive Principles of State Policy passed the Bombay Tenancy and Agricultural Lands (.<\mendment) Act which came into force on 1st August 1956. The main effect of the amendments made by the 1956 Act was that on 1st April 1957 every tenant was subject to other provisions deemed to have purchased from his landlord free of all encumbrances, the land held by him as a tenant. "fhe erstwhile landlord remained entitled only to recover the price fixed under the provisions of the Amendment Act in the manner provided therein i.e. by a tribunal. The Amendment Act was challenged by a petition under Art. 32 but this Court held that it was protect.:d by Art. 31A. Further changes in the Act were made by the impugned Act, namely, the Bombay Tenancy and Agricultu .. ral Lands (Amendment) Act, 1964.

In a petition under Art. 32 of the Constitution it was contended that these changes had affected the petitioner's right to property in that he had neither the right to recover the price of tQe land deemed to be purchased by the tenant nor any hope of recovering it through the procedure prescribed by the impugned Act within a reasonable time. It was urged that there was no time fixed for the tribunal to determine that it had failed in the efforts to recover the amount under the Reveuue Recovery Act so that the tenant purchaser could be evicted. The provisions of the Act were also attacked as unreasonable. The question that fell for consideration was whether the impugned Act was pr<Jtected by Art. 31A.

HELD: Once it has been held that Art 31A applies to an Act the petitioner cannot complain that his rights under Arts. 14, 19 and 31 of the Constitution have been infringed. The protection is available r.ot only to Acts which come within its terms but also to Acts amending such Acts to include new items of property or which change some detail of the scheme of the Act provided firstly that the change is not such as would take it out of Art. 31A or by itself is not such as would not be protected by it and secondly that the assent of the President has been given to the amending statute. So long as the amendment also relates to a scheme of agrarian reform providing for the acquisition of any estate or of any right thereunder or for extjnguishment or modification of such right the mere transfer of the tenure from one person to another or the payment of the price in instalment or even the postponement of payment by a further period cannot be challenged under Arts. 14, 19 and 31. [666H]

SUPRBME COURT REPORTS

[J97J) SUPP. S.C.R.

In the present case the impugned legislation .bad merely amended th<: provision which related to -the recovery of the amounts from the tenant who had become purchaser and the postponement of the time of ineffective~ ness of sale till the tribunal has tried and failed to recover the amount from the tenant purchaser. This had not in any way affected the main purpose of the Act or the object which it seeks. to achieve nor did the amendments effected thereby take the provision out of 4he protection given

to it under Art. 3IA of the Constitution.

[66711-C]

The petition must accordingly be dismissed.

Sri Ram Ram Narain Medhi v. State of Bombay, (19591 1 Supp. S.C.R. 489, referred to and held inapplicable.

ORIGINAL JURISDICTION: WRIT PETITION No. 254 of 1968.

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

V. M. Tarkunde, V. M. Limaye and S. S. Shukla for the petitioners.

P V. S. Desai, M. C. Bhandare and S.

P. Nayar, for the respondent.

The Judgment of tile Court was delivered by

P. Jaganmohan Reddy, J.-The petitioner challenges the vires of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1964 (Maharashtra Act XXXI of 1965) (hereinafter referred to as the 'impugned Act'). The paHint Act is the Bombay Tenancy and Agricultural Lands Act .1948 (Bombay Act XLVII of 1948) (hereinafter referred to as 'the parent Act'). In 1956 the State Legislature amended the parent Act by Bombay Tenancy and Agricultural Lands (Amendment) Act 1956 (Bombay Act XIII of 1956) (hereinafter referred to as 'the Amendment Acn which came into force on !st August 1956.

The State of Bombay undertook legislation in furtherence of its policy of social welfare and to give effect to agrarian reform.

The parent Act was passed by the Bombay State Legislature in order to amend the law which governed the relationship between the landlord and tenants of agricultural lands, the object sought to be achieved being as indicated in its preamble that "on account of the neglect of a landholder or disputes between the landlord and his tenants, the cultivation of his estate has as a result suffered or for the purposes of Improving the economic and social conditions of peasant or ensuring the full and efficient use of land for agriculture, it is expedient to assume management of estates held by the landholders and to regulate and impose restrictions on transfer of agricultural lands, dwelling houses, sites and lands

I :S:N. MBDH! v. MAllARASHnA'(Jaganmohan Reddy, J.) '1;53

; ippurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans in the province of Bombay and to make provision for certain other purposes".

By the Constitution first Amendment Act 1951 the parent Act was included in the Ninth Schedule and came within the pur view of Art. 31B of the Constitution. In 1956 the State Legislature in order to implement the directive principles of the State Policy set out in Art. 38 and 39 of the Constitution of India by seeking to promote the welfare of the tenants, the landless pea sants and labourers and to enable them to acquire. land and with a view to bring about equitable distribution of ownership of land, passed the amendment Act which received the assent of the President on March 16, 1956. This Act made further changes in the relationship of landlord and tenants which were more drastic.

The main effect of the amendments of Section 32 to 32-B was that on the !st April '57 (hereinafter referred to as the tiller's day) every tenant was, subject to the other proVisions deemed to have purchased from his landlord free of all encumbrances subsisting thereon, on the said day, the land held by him as a tenant subject to certain conditions (vide Section 32). The tenant under

Section 32A was deemed to have purchased the land up to the ceiling area.· It was further provided by Section 32-B that ifa tenant .held the land partly as owner and partly as tenant, but the area of the land held by him as owner is equal to or exceeds the ceiling area he shall not be deemed to have purchased the land held by him as a tenant under Section 32.

Section 32-E provided thai the balance of any land after the purchase by the tenant under Section 3 2 shall be disposed of in the manner laid down in Section 15 as if it were land surrendered by the tenant. Section 32-F further provided that in the case of disabled landholders namely minors, widows or persons subject to any mental or physical disability or where the tenants are equally disabled as aforesaid or where they are members of the Armed Forces, the tiller's day was postponed by one year after the cessation of disability. ·

As a result of the Amendment Act, on the !st of April, 1957 the relationship of landlord and tenant came to an end, the landholder ceased to be a tenureholder and the title thereto was vested in the tenants defeasible only on certain specified contingencies. The relationship of landholder and tenant was thus transformed into a relationship of a creditor and debtor, the erstwhile landlord being entitled only to recover the price fixed under the provisions of the Amendment Act in the ma_rmer p_rovided therein under Section. 320 read with 32H, the pnce which was to be paid by the tenant was to be determined by the tribunal as soon

SllPUWB OOllRT llEPOll'l'S [1971] BllPP. s.c.11..

as may be after the tiller's day and in the manner provided thereunder subject however to the amount so determined not being less than 20 times and not more than 200 times of the assessment.

An appeal against the decision of the Tribunal was provided to the State Govt. under Section 32-J.

The mode of payment by the tenant of the price fixed by the Tribunal is prescribed under Section 32-K which shall be payable in annual instalments not exceeding 12, with simple interest at 41% per annum, on or before the said dates as may be prescribed by the Tribunal and the tribunal shall direct that the amount deposited in lumpsum or the amount of instalments deposited shall be paid to the former landlord. The landlord however did not have the right to recover the amount by recourse to a Court of law. The only way in which he could recover it if the instalments were not duly paid by the tenant voluntarily was by an application to the concerned authorities under the Revenue recovery Act to recover it as arrears of land revenue (Section 32-L) which provision it may be stated was subsequently deleted by the impugned Act under Section 32-M. On the payment of the price either in lumpsum or of the last instalment of such price the tribunal was required to issue a certificate in the prescribed form to the tenant purchaser in respect of the land, which certificate shall be the conclusive evidence of purchase. If the tenant fails to pay the lumpsum within the period prescribed for, or is at any time in arrears of four instalments the purchase was to be in effective and the land was to be put at the disposal of the Collector and any amount deposited by such tenant tow3rcls the price of the land was to be refunded to him. It 'is important to note that Section 32-P provides that if the tenant fails to exercise his right to purchase or the sale becomes ineffective on account of default of payment of purchase price the tenant shall be evicted and the land shall be surrendered to the former landlord. Section~ 32-Q and 32-R provide that the amount of purchase price was to be applied towards the satisfaction of debts and the purchaser was to be evicted from the land purchased by him as aforesaid if he fails to cultivate the land personally.

The Amendment Act was challenged by a petition under Art. 32 but this Court held that it is protected by Art. 3 IA of the Constitution and is therefore valid. We shall presently refer to that decision but the petitioner's grievance is against tl1e changes that have been affected by the impugned Act in the law as it stood after Amendment Act. It is the contention of the learned Advocate for the Petitioner that he changes that transgress the fundamental rights of the petitioner are (1) that if the tenant does not pay the instalments by the end of twelve years but before the end of the period he makes an application that he is at the time incapable of paying the arrears within the time and

s: 'M.·~HI v. ICAHAUSlltU (1f161Jnmoltan Reddy, I.)

pays one instalment together with the interest on the total amount of one year's instalment, the period of payment is extended by another 12 years,. (2) where he fails to pay the price in lumpsum or is in arrears of four instalments where the number of instal ments fixed is four or more and the purchase has thereby become ineffective even then if he was in possession of the land on the !st of May '65 and files an application within six months therefrom or from the date of default of the payment of price in lumpsum or of the last instalment whichever is later and applies to the tribunal to condone the default on the ground that there being sufficient reason as he was incapable of paying the price in lumpsum or the instalment within the time, the tribunal can if it is satisfied condone the default and allow further time, in the case of payment of lumpsum one year and for payment of arrears in the case where payment is by instalments by Increasing the total number of instalments to sixteen. (3) Even when the arrears are not paid as required under fhe law during the extended period and sale becomes ineffective and the tenant purchaser has nevertheless continued in possession, the landlord has no right to have the tenant purchaser evicted, till the tribunal admits that it has failed to recover the amount of the purchase price.

Shri Tarkunde contends that these changes have effected the petitioner's right to property in that he has neither the right to recover the amount through a Court of law nor has he any hope of recovering it• through the procedure prescribed by the impugned Act within any reasonable time; that in spite of the fact that under the previous law the sale had become ineffective under 32-H or 32-G by the. default of the tenant purchaser to pay the price the Collector under 32-P was required to give possession to the landlord but under the impugned Act that right has become illu sory because the landholder has no effective remedy eithe.r to recover the amount or to recover the land and that all that the tenant has to do is to sit tight, he need not apply for extension nor need he pay the Instalment nor is toore any time fixed for the tribunal to determine that it has failed in the efforts to recover the amount under the revenue recovery Act. No distinction in fact, it is said, has been made between a person who is unable to pay and one who will not pay.

In view of these contentions It is necessary to point out that this very petitioner had challenged the constitutionality of the Amendment Act in Sri Ram Ram Narain Medhi v. State of Bombay (1) on the ground that it was beyond the competence of the legislature; that legislation not being protected by Art. 3 l(A) had infringed Arts. 14, 19 and 31 of the Constitution; and that it was a piece of colourable legislation vitiated in part by excessive

(I) [1959] 1 Suppl, S. C. ll. 489.

SUPREME COURT RBPOR'!li [1971] SUPP. s.c.J<.

delegation of legislative power to the State. On behalf of tho Respondent, it was urged that the impugned legislation fall within entry 18 in I, ist II of the Seventh Schedule to the Constitution, that it provided for the extinguishment or modification of righ\~ to estates and was as such protected by Art. 31-A of the Constitution and that there was no excessive delegation of legislative power.

This Court held (!) that the legislation fell within entry 18 of List II and therefore the legislature was competent to ellllct the Amendment Act; (2) that the word estate applied to landholders as defined by Section 2(5) of the Bombay Land Revenue Code which is equally applicable to tenure holders and occupants of unalienated lands; (3) that the word 'landholder' as defined in Section 2(9) of the parent Act made no distinction between alienated and unalienated lands and showed that the interest of the landholder fell within the definition of 'estate' contained in Section 2(5) of the Bombay Land Revenue Code; (4) that there was no warrant for the proposition that extinguishment or modification of any rights in estates as contemplated by Art. 31A(l)(a) of the Constitution must mean only what happened in the process of acquisition of any estate or of any rights therein by the State.

The language of the Article was clear and unambiguous and showed that it treated the two concepts as distinct and different from each other, and (5) that Sections 32 to 32-R of the Amendment Act contemplated the vesting of title in the tenure on the tiller's day defeasible only on certain specified contingencies and intended to bring about an extinguishment or modification of rights in the estate within the meaning of Art. 31A(l)(a) of the Constitution.

For the aforesaid reasons it was held that the Amendment Act was not vulnerable as being violative of Arts. 14. 19 and 31 of the Constitution. ·

This decision concludes the most important question whether the petitioner's fundamental rights are infringed under Art>.

14, 19 and 31 as the parent Act as well as the amending Act is now protected by Art. 3JA of the Constitution.

Neither the question of discrimination nor of compensation or its adequacy can be gone into nor can the unreasonableness of the provisions under which the landlords title has been extinguished nor the manner in which the price is to be paid can be chaltenged. Once it has been held that Art. 31A applies the petitioner cannot complain that his rights under Arts. 14, 19 and 31 of the Constitution have been infringed.

This protection is available not only to Acts which come within its terms but also to Acts amending such Acts to include new items of property or which change some detail of the scheme of the Act provided firstly that the change

s. N. MllDHI V.1'\AliAll.ASHTl\A (Jaganmoha11 Reddy, J.) 667

is not such as would take it out of Art. 3 lA or by itself is not such as would not be protected by it and secondly that the assent of the President has been given to the amending statute. To put it differently as long as the amendment also relates to a scheme of agrarian reforms providing for the acquisition of any estate or of any right thereunder or for extinguishment or modification of such right the mere iransfer of the tenure from one person to another or the payment of the price in instalment or even the postponement of payment by a further period cannot be challenged under Arts. 14, 19 and 31. In this case we have noticed that the impugned legislation has merely amended that provision wl:; ich related to the recovery of the amounts from the tenant who has become purchaser and the postponement of the time of ineffectiveness of sale till the tribunal has tried and failed to recover the amount from the tenant purchaser. The only way under which the petitioner could have recovered the amounts under the Amendment Act was by an application to the Collector under the Revenue Recovery Act for collecting it as arrears of land revenue but that provision under Section 32-L has now been deleted.

While the vesting of the title of the tenure in the erstwhile tenant is still defeasible only on certain specified contingencies as was before the impugned Act it only modified the previous provisions to the extent that Jhe erstwhile tenant has been given the benefit of having the payment postponed. or instalments increased by requiring the lnbunal to make an enquiry as to whether there were sufficient reasons for the tenant purchaser making a default and if it is satisfied to condone the delay and extend the period of payment. It also vested in the tribunal instead of the Collector the power to make the recovery on behalf of the landholder. It may also be noticed that under the impugned Act the sale still becomes ineffective as was under the amendment Act when the amount is not recovered with this difference that under the former it has to be shown that the tenant parchaser was not in a position to pay. No doubt before the impugned Act, if the tenant-purchaser did not pay, the Collector could take action under the revenue recovery Act to recover the amount and if he did not recover it the sale became ineffective and the landlord could be put in possessiOn. by evicting the tenantpurchaser provided he was entitled to get possession of it under the Act, as when his holdings do not come within the ceiling. The basic position still remains the same after the impugned Act and there is nothing in the Amendment Act which is destructive of the scheme of agrarian reform which the legislation seeks to implement and which is protected under Art. 31A of the Constitution.

This view of ours is amply borne out also by the statement of objects and reasons which impelled the legislature to state the difficulty that was being felt in tr:e implementation of the agrarian

........

l ,.,.· '

~ .... , .~, .-

[1911] SOPP. S.o.&,

land reforms and indicate how it sought to find a remedy and get over il This is what was stated :

"According to provisions of Section 32-K, 32-L and 32-M of the Bombay Tenancy Agricultural Land Act 1942; it is left to the tenant to deposit '1-ith the tribunal the purchase of the land which is deemed to have been purchased by him under Section 32 of that Act. If he fails to deposit the price in lumpsum or instalments the purchase becomes ineffective and under Section 32-P the tenant can be summarily evicted from the land. It has been brought to the notice of the Government that in the case of an Act a large number of tenants specially belonging to the Scheduled Caste and Scheduled Tribe, the purchase is in danger of being ineffective for failure to deposit the sale price on due dates.

It is noticed that these tenants being illiterate and socially backward have failed to deposit the amount more out of ignorance than willful default. Unless therefore immediate steps are taken to provide for recovery of purchase price through Government agency a large number of tenants are likely to be evicted from their lands due to purchase becoming ineffective. This will result in defeating the object of the tenancy legislation. To avoid this result, it is therefore considered that the agricultural lands tribunal should be empowered to recover the purchase price from tenants as arrears of land revenue and until the tribunal has failed to recover the purchase price,· the purchase should not become ineffective. It is also considered that the benefit of these provisions should be given to tenants whose purchase has already become ineffective but who have not yet been evicted from their lands under Section 32-P. This bill is intended to achieve these objects".

We do not therefore think that the impugned Act has in any way affected the main purpose of the Act or the object which it seeks to achieve nor do the amendments effected thereby take the provisions out of the protection given to it under Art. 3 lA of the Constitution.

Shri Tarkunde has referred us to the case of Maharana Shri Jayvantsinghji Ranmalsinghji etc. v. The State of Gujarat fl in support of his contention that the impugned Act infringes Art.

19(1)(0 of the Con.stitution and is not saved by clause 5 thereof as the provisions of the said Act are unreasonable in that the indefinite postponement of the recovery of the price makes te payment thereof illusory, and even after the sale has become meffective the landholder is not entitled to recover the land.

What fell for determination in the case referred to was whether as a result of the provisions of the Bombay Land Tenure

(I) (1966] Supp. s.c.R. 411.

'Ji -

rt '

s. N. llEDHI v. MAHAR1'SllTIA (Jaganmohan Reddy, J.) ...

Abolition Laws (Amendment) Act 1958, particularly under Sections 3 and 4 read with Section 6 thereof certain non, permanent tenants were deemed to have become permanent tenants as from the commencement of the Bombay Taluqdari Tenure Abolition Act 1949 and thereby became entitled to acquire the tenure on payment of 6 times the assessment or 6 times the rent instead of atleast the minimum of 20 times to 200 times the assessmer, t which right infringed the fundamental right of the landlord to acquire bcld and dispose of property. This result it was contended had substantially deprived the petitioners of the right which they acquired on the tiller's day by reason of the provisions contained in' Section 32 and other provisions in the parent Act as amended from time to time. The majority held that the provisions of Sections 3, 4 and 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958 insofar as they deemed some tenants as permanent tenants in possession of Taluqdari land were unconstitutional and void In that under the guise of changing the definition of a rma11ent tenant and changing a rule of evidence, it really reduced the purchase price that the petitioners were entitled to receive from some of their tenants on the 'tiller's day' under Section 32-H of the parent Act.

It would appear from the J udgrnent .of S. K. Das, J. speaking for himself and Sinha C.J ., that the constitutional validity of the relevant provisions of the Taluqdari Abolition Act 1949 and the parent Act read with the Amendment Act had not been challenged before them. The decision of Dhirubha Devisingh Gohil v.

The State of Bombay (') and Shri Ram Ram Narain Medhi v.

The State of Bombay (') were cited as upholding the constitutionality of the relevant provisions of those 2 Acts. After pointing out that what has been challenged before them was the constitutional validity of the Bombay Act LVII of 1958 particularly the provisions 3, 4 and 6 of that Act, and referring to the earlier decision that this Court had held that Sections 32 to 32-R of parent Act read with the Amendment Act were designed to bring about an extinguishment or in any event a modification of the landlords rights in the estate within the meaning of Art. 31A(l)(a) of the Constitution, it was obseTVed that the right which the petitioners got of receiving the purchase price was undoubtedly a right to property guaranteed under Art. l9(1)(f) of the Constitution and was not saved by clause S thereof nor are the cases before them protected by Art. 31A. S. K. Das, J. gave the following reasoning for the aforesaid conclusion at page 438-439:

"The petitioners have three kinds of tenants-.pennanent

enallll, protected tenants, and ordinary tenants.

I') [1955] I S.C.ll. 691.

(2) [1959] Suppl. 1 s.c.ll. 489.

61()

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

April l, 1957, the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price undet s. 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with s. 83 of the Revenue Code. Such. a claim could be contested by the tenure-holder whenever made by the tenant. But by the impugned Act 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure' land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant.

We are unable to hold that the six months' limit imposed by s. 5 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Art. 19 (5) of.the Constitution."

The decision in the above case is clearly inapplicable to the facts am! circumstances of the case before us and consequently in the view we have taken this petition is dismissed with costs.

G.C.

Petition dismissed.

SRIRAM NARAYAN MEDW

STATE OF MAHARASHTRA

G. K. MITTER

A. N. RAY

P. JAGANMOHAN REDDY, JJ.

Arts. 19 and 31

Art. 31A

Agricultural Lands Act, 1948

Art. 318

Art. 32

Art. 31A

Art. 32

Art. 31A

Art 31A

Arts. 14, 19 and 31

Art. 31A

Arts. 14, 19 and 31

Art. 3I

Art. 32

Constitution of India

Maharashtra Act XXXI of 1965

Bombay Act XLVII of 1948

Bombay Act XIII of 1956

Ninth Schedule

Art. 31B

Art. 38 and 39

Constitution of India

Section 32 to 32

Section 32

Section 32A

Section 32

Section 32

Section 32

Section 3

Section 15

Section 32

Section 32

Section 32

Revenue recovery Act

Section 32

Section 32

Section 32

Art. 32

Art. 3

revenue recovery Act

Art. 3

Arts. 14, 19 and 31

Seventh Schedule

Art. 31

Section 2(5)

Section 2(9)

Section 2(5)

Art. 31A(l)(a)

Sections 32 to 32

Art. 31A(l)(a)

Arts. 14

Art. 3J

Art. 31A

Arts. 14, 19 and 31

Art. 3

Arts. 14, 19 and 31

Revenue Recovery Act

Section 32

revenue recovery Act

Art. 31A

Section 32

Section 32

Section 32

Section 32

Art. 3

Sections 3 and 4

Section 6

Section 32

Sections 3, 4 and 6

Section 32

Taluqdari Abolition Act 1949

Act read with the Amendment Act

Sections 32 to 32

Act read with the Amendment Act

Art. 31A(l)(a)

Art. 31A

s. 32H

s. 83

by the impugned Act 1958

s. 5

Art. 19


s11

SUSHILA DEVI AND ANR. '

HARi SINGH AND ORS.

May 5, 1971.

I K. S. HEGDE & A. N. GROVER, JJ.] B

Contract Act (9 of 1872), s. 56-Frustration-App/icabi/ity to leases.

The appellants were legal representatives of the owner of a village.

In January, .1947, the previous owner called for tenders for taking the property on lease for a period of three years.

The respondents• tender wail accepted and they deposited along with the tender earnest money C and security for the payment of rent. The terms of the tender required that the lease deed should be got registered by the lessee and that the lessee alone would be personally responsible for taking possession of the lands.

As a result of the partition of India the village became a part of Pakistan. Even before actual partition, because f serious communal trou hies, it was not possible for the respondents to 10 to the village either to cultivate the lands or to collect the rent from those who were cultiatins- D No Ielise deed was executed or relistered.

Under those circumstances the respondents filed a suit claiming a decree for the refund of the amounts deposited and damages. The lower courts held that the contract had become impossible of performance and decreed the suit in part.

In appeal to this Court,

HELD: (1) The law of frustration as embodied ins. 56 of the Contract Act applies only to a contract that is, an agreement o lease, and does not apply to leases.

[674A ; 675A-B)

Ra; Dhruv Dev Chand. v. Harmohinder Singh, [1968] 3 S.C.R. 33•, referred to.

(2) But in this ·-case there was no .lease. Since lease was to be for a period of three years it could have been validly made only under a registered instrumen\, and therefore, there was only an aarecment to lease and not a lease. Such an agreement comes within the scope . of s. 56 of the Contract' Act. (6750-B)

(3) The impossibility contemplated by s. 56 is not confined to some- G thing which is not humanly_ .possible. _H the performance _.[Jf a contract becomes irnpra<; ticahle or use:less having regard tO the ob1ect and purpose of the p>\rtieli then it must be held that' the performance of the contract becan1e 'Jmpossible.

But the supervening events -should , take away the very bast£ of the contract and it .should be of such a 'character that it

striker. at :he root of the contract. [676C:Dl

Jn tr.e ptent case, the respondents sought to take on lease the proper- H ties with a view to enjoy the properties either by personally cultivating them tr by &Ub-leasill8·them. to others. That abject became impossible because of supervening even!S.

Under the terms of the agreement the

SUPREME COURT U:PORTS (1971] SUPP. s.c.&.

lessor was not expected to deliver the actual possession of the properties but because of the prevailing circumstances it was impossible for the respondents to either take possession of the properties or even to collect rent from the cultivators. Therefore. the contract had become impossible of performance. [676D-F]

Satyabrata Ghose v. Mugneeram Bangur and Co., [1954] S.C.R. 310. referred to.

OVIL APPELLATE JURISDICTION : Civil Appeal No. 1225 of 1966.

Appeal by special leave from the judgment and decree dated December 14, 1964 of the Jammu & Kashmir High Court in Civil First Appeal No. I of 1960.

S. T. Desai and P. C. Bhartari, for the appellants.

Hardev Singh and Hirai Lal Kapoor, for respondents Nos. 12A to 12C.

The Judgment of the Court was delivered by

Begde, J.-The appellants are the legal representatives of Dewnani Vidya Wati.

The said Vidya Wati was the owner of the village known as Kotli Delbagh Rai in Tehsil Gujranwalla.

It appears that she used to give the lands in that village on lease for a term of years by calling for tenders and accepting the highest tender.

In about January 1947, she published a notice inviting tenders from interested persons for taking those lands on lease for a period of three years beginning from kharif 1947 to Rabi 1950.

The tenders had to be submitted before January 1, 1947.

Clause (3) of the tender notice stated that "the terms of lease can be perused in the Dewan estates office Jammu before filing of the tenders.

No excuse of ignorance as to the time will be entertained after the acceptance of the lease."

A note containing the terms on which the lands would be leased was exhibited for the information of the tenderers in the office of the lessor.

For our present purpose the only terms that are relevant are those contained in Clauses 4 and 5 of the note. Clause 4 reads :

"According to the terms of the tender, the lessee shall be the essence of contract.

In case the lessee is 15 days from the date of the acceptance of the lease. The expenses of the completion and Registration of the deed shall be borne by the lessee.

The period of 15 days fixed for the completion and registration of the lease deed shall be the essence of contract In case the lessee is negligent to get the lease deed registered, the lease shall

~USlllLA •• HARi SINGH (Hegde, J.) 673

stand cancelled.

The nest money and the securitY, A shall also be forfeited.

A fresh tender for the lands shall be called for and any loss caused in this connection shall be borne by the lessee."

Clause 5 says :

"The lessee shall be personally responsible to get the possession of the lands under Patta after the registration of lease deed.

On getting the possession of the land the lessee shall get the counter part of the lease deed executed from his cultivators and deposit the same in the estates office.

And shall furnish a certificate for any part of land which he eeps for his self-cultivatio~. He shall inform and deposit fresh counter lease deed m case of any change in his cultivators and shall get a written receipt from the Manager for the same."

The respondents tendered in response to the notice calling for tenders.

Their tender was accepted.

Alongwith the tender they deposited a sum of Rs. l,000 as earnest money.

Later on they deposited a sum of Rs. 34,000 as security for the payment of rent. ·

No lease was executed or registered.

From the material on record, it is not possible to find out as to who was responsible for the non-execution of the lease.

But that aspect is not material for our present purpose.

The landlord has not sought to cancel the contract.

The agreement to lease continued to be in force even after the per, od within which the lease deed had to be registered.

Tehsil Gujranwalla became a part of Pakistan as a result of partition of India on August 15, 1947. Even before the partition Vidya Wati as well as the respondents had migrated to India because of the com111unal disturbances.

Considerable evidence was led in the case to establish that even before the actual partition of India took place, because of the serious communal troubles, it was not possible for the respondents to go to Gujranwalla either to cultivate the lands or even to collect the rent from those who were cultivating the lands.

Under those circumstances the respondents called npon Vidya Wati to refund the amount deposited as security for the payment of rent as well as to pay them a sum of Rs. 2,000 as damages.

She declined to comply with that demand.

Thereafter they filed the suit from which this appeal arises claiming a decree for Rs. 36,000, Rs. 34,000 as refund of the amonnt deposited and Rs. 2,000 as damages.

Vidya Wati

43- .( S.C.lndia/71

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

resisted the suit on various grounds.

She pleaded that she had done all that she was expected to do under the contract.

Therefore the claim made against her was not sustainable. According to her the lands sought to be leased were in the possession of the actual cultivators ; she was not required to evict those cultivators and deliver physical possession to the respondents. She was only required to deliver the landlord's possession of the lands proposed to be leased.

According to her she had given to th~ respondents such possession as she could have given under the circumstances.

She further pleaded that the doctrine of frustration is not applicable to leases.

In addition she p!.eaded that the suit was barred by limitation.

She also contended that under the contract she was entitled to forfeit the amount deposited as security.

At the trial most of the contentions advanced by Vidya Wati were given up.

The only issue on which the parties went to trial was whether the contract was frustrated because of the supervening circumstances mentioned earlier.

The trial court rejecting the contention of the plaintiffs came to the conclusion that Vidya Wati was not expected to deliver physical possession of the properties intended to be leased. She had only to give such possession as she had.

But at the same time it upheld the contention of the plaintiffs that the agreement to lease was frustrated. ln appeal a Division Bench of the High Court of Jammu and Kashmir agreed with the trial court that the contract referred to in the plaint was frustrated becalJSI) of the supervening circumstances. It opined that the doctrine of frustration applied to leases as well.

It further held that under the contract Vidya Wati was expected to deliver actual possession of the property to the plaintiffs and that she had neither delivered physical nor even symbolic possession of the same to the plaintiffs.

In the result it affirmed the decision of the trial court. Thereafter this appeal has been brought by special leave.

Diiring the pendency of the appeal to the High Court Vidyawati died and the present appellants were brought on record as her legal representatives.

The only question that falls for decision in this appeal is whether the contract referred to in the plaint has become void in view of the circumstances established. In other words had the performance of the contract become impossible in view of the prolonged and widespread communal troubles and the long drawn out tension that prevailed between India and Pakistan.

The law of frustration is embodied in Section 56 of the Contract Act. That section to the extent material for our present purpose reads :

' "A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event

SUSHILA v. HARi SINGH (H egde, J.)

which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful."

The conclusion of the Division Bench of the Jammu and Kashmir High Court that Section 56 of the Contract Act applies to leases as well cannot be accepted as correct.

Section 56 applies only to a contract.

Once a valid lease comes into existence the agreement to lease disappears and its place is taken by the lease.

It becomes a completed conveyance under which the lessee gets an interest in the property. There. is a clear distinction between a completed conveyance and an executory contract. Events which discharge a contract do not invalidate a concluded transfer-see Raja Dhruv Dev Chand v. Harmohinder Singh and anr(').

In view of that decision the view taken by some of the High Courts that Section 56 of the Contract Act applies to leases cannot be accepted as correct.

Further the English decisions bearing on the point can have no further relevance.

But in thjs case there was no lease. There was .only an agreement to lease.

As seen earlier, the agreement between the parties was that the properties in question should be leased to the plain- 'liffs for a period of three years.

Such a lease could not have been validly made except under a registered instrument. As seen earlier the contract between the parties provided that the lease deed should be registered within 15 days from the date of the acceptance of the tender.

For one reason or the other, the contemplated lease deed was neither executed nor registered.

There. fore we have before us only an agreement to lease and not a lease.

Such an agreement comes within the scope of Section 56 of the Contract Act.

We agree with the trial court that under the terms of agreement Vidya Wati was not expected to deliver actual possession of the properties sought to be leased.

The contract between the parties provided that : '

"The lessee shall be personally responsible to get the possession of the lands under Patta after the registration of lease deed".

In our opinion on this point the conclusion of the appellate court is not sustainable.

But in fact as found by the trial court as well as by the appellate court, it was impossible for the plaintiffs to even get into Pakistan.

Both the trial court as well as the appellate court have found that because of the prevailing circumstances, it was impossible for the plaintiffs to either to take possession of the properties intended to be leased or even to collect rent

(1) [1968] 3 S. c. R. 339.

SUPREME COURT REPORTS [1971) un. s.c.R'

from the cultivators.

For that situation the plaintiffs were not responsible in any manner. As observed by this Court in Satya~ brata Ghose v. Mugneeram Bangur and Co. and anr ('), the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act The view that Section 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principles of English Jaw on the subject of frustration is not correct. Section 56 of the Indian Contract Act Jays down a rule of positive Jaw and does not leave the matter to be determined according to the intention of the parties.

The impossibility contemplated by Section 56 of the Contract Act is not confined to something which is not humanly possible. If the performance of a contract becomes impracticable or useless having regard to the object and purpose the parties had in view then it must be held that the performance of the contract has become impossible.

But the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract.

From the facts found in this case it is clear that the plaintiffs sought to take on lease the properties in question with a view to enjoy those properties either by personally cultivating them or by sub-leasing them to others.

That object became impossible because of the supervening events.

Further the terms of the agreement between the parties relating to taking possession of the properties also become impossible of performance.

Therefore we agree with the trial court as well as the appellate court that the contract had become impossible of performance.

In the result this appeal fails and the same is dismissed. But taking into consideration the fact that both the plaintiffs as well as the defendant had become the victim of circumstances which were beyond their control, we direct the parties to bear their own costs in this appeal.

V. P. S.

Appeal dismissed.

(I) [1954) S. C. R. 310.

HARi SINGH AND ORS

I K. S. HEGDE

A. N. GROVER, JJ.

s. 56

[1968] 3 S.C.R. 33

s. 56

s. 56

Clause 4

Clause 5

Section 56

Section 56

Section 56

Section 56

Section 56

Section 56

Indian Contract Act

Section 56

Section 56

Indian Contract Act

Section 56


D. A. V. COLLEGE BATBINDA, ETC.

STATE OF PUNJAB & ORS.

May 5. 1971

[S. M. Snrn. c. J .• G. K. MITTER, K. s. HEGDE, A. N. GROVER AND B

P. JAGANMOHAN REDDY, JJ.]

Punjabi University Act, 1961 (35 of 1961), s. 4(3}-University making Punjabi the sole medium of Instruction and examination-Ation ultra vrres the power conferred by section-Also infringes rights of religious minority to conserve their script and administer theif institutions.

The petitioners are educational institutions founded by the D.A.V.

College Trust and Society registered under the Societies Registration Act

as an association comprised of Arya Samajis. These institutions were. before the reorganisation of the State of Punjb in 1966, affiliated to the Punjab University constituted under the Punjab University Act, 1947. The Punjabi University was constituted in 1961 by the Punjabi University Act (35 of 1961). After the reorganisation, the Punjab Government under s. 5 (I) of the Act specified the areas in which the Punjabi'• University exercised its power and notified the date for the purpose of the section. The effect of the notification was that the petitioners were deemed to be associated with and admitted to the priveleges of tQe University and ceased to be associated in any way with the Punjab University. The Central Government notified under s. 72 of the State Reorganisation Act that the Punjab University ceased to function in the areas notified by the Punjab Government. Thereafter, by a circular dated June 15, 1970, the University declared that Punjabi "will be the sole medium of instruction and examination for the pre-university even for science group with effect from the academic session 1970-71".

Later, the University by_ circular dated July :?, 1970 relaxed this directive in some special cases of pre-university students.

On October 7, 1970 a further modification was made allowing English as an alternative medium of examination but qualifying in the elementary Punjabi papers would be obligatory in the case of such students offering English medium. In petitions filed under . .\rt. 32 of the Constitution the main contentions urged were that s. 4(2) of the Act did not empower the University to make Punjabi the sole medium of instruction; that if it did the State Legislature had no competence to enact such a provision because that power was vested in the Union Parliament under Entry 66 of List I; and that in any case the circular and the Notification offended the peti~

tioners right to conserve their script and administer their institutions in their own way. ·

HELD: (i) The circular <>f June 15. 1970 as amended by the circulars of July 2, 1970 and October 7, 1970 is invalid and ultra vires the powers vested in the University.

The University by adopting Punjabi as the sole or exclusive medium for the colleges affiliated to the University, notwithstanding the concessions granted, acted in excess of the power conferred on it. Section 4(3) of the Act, by the use of the definite article a prefixed to the word medium, does not require Punjabi to be made the exclusive medium of instruction.

This conclusion is further reinforced by the nature of the power which is only "to progressively adopt it as a medium of instruction and examination for as many subjects as possible". [686H-687D]

SUPREME COURT REPORTS (1971] SUPP. S.C.ll

A Gujarat University Ahmedabad v. Krishna Ranganath Mudholkar, (1963] Supp. I S.C.R. 112, relied on.

R. Chitralekha v. State of Mysore, (1964] 6 S.C.R. 368, referred to.

(ii) Further, the petitioners are institutions maintained by a religious minority and as such the directive for the exclusive use of the Punjabi language in the Gurmukhi script as the medium for instruction and for examination in all colleges directly infringes the petitioners right to Consume their script and administer their institutions. The relaxation made subsequently in the earlier directives .of the University makes little difference because, the concession does not benefit students with Hindi as the medium as Devanagari as their script The right of the minorities to establish and administer educational institutions of their choice includes the right to have a choice of the medium of instruction also. This would be the result of reading Art. 30(1) with Art. 29(1).

No inconvenience or difficulties, administrative or financial can justify the infringement of guaranteed rights. (6830-F; 6840-H]

State of Bombay v. Bombay Education Society, (1955] I S.C.R. 568, referred to.

ORIGINAL IUR!sDicnoN : Writ Petitions Nos. 353 and 354 of D 1970.

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

A. K. Sen, and Naunit Lal, for the petitioners (in both the petitions).

M. C. Chagla and R. N. Sachthey, for respondent No. I (in W. P. No. 353 of 1970).

H. L. Sibbal, Advocate-General, Punjab and R. N. Sachthey, for respondent No. I (in W. P. Np. 354 of 1970).

V. M. Tarkunde, Harbans Singh and K. R. Nambiar, for respondent No. 2 (in W. P. No. 353 of 1970).

Kuldip Singh and Harbans Singh, for respondent No. 2 (in W. P. No. 354 of 1970).

The Judgment of the Court was delivered by

P. Jaganmohan Reddy, J.-These two Writ Petitions under Article 32 challenge the vires and constitutionality of Sections 4(2\ and 5 of the Punjabi University Act 35 of 1961 as amended (hereinafter called "the University" or "the Act", as the case may be).

It is also prayed that (i) the Notification of the Punjab Government No. 5592-ED-1(2£)/59/12447 dated 13-5-1969 extending the area in which the University shall exercise its powers and (ii) the Circular of the University No. 8617-8661 /GS/Misc. dated 15-6-70

as modified by Circular No. 9866-989G/DSG dated 2-7-70 enclosing the decision of the Senate Sub-Committee dated 1-7-70 be quashed as being illegal, unconstitutional and void.

The Petitioners are educational institutions founded by, D. A. V. College Trust and Society registered under the Societies Registration Act as an association comprised of Arya Samajis.

These Colleges were affiliated to the Punjab University before the reorganisation of the State of Punjab in 1966.

The University had been constituted in 1961 and by a Notification dated June 30, 1962, it was given jurisdiction over a radius of .10 miles from the office of the University at Patiala which seat had earlier been notified on 3().4-1962 as a Seat of the University.

As the Writ Petitioners were not within the 10 miles radius of the University they continued to be affiliated to the Punjab University.

After the reorganisation the Punjab Government by Notification dated 13-5-1969 issued under sub-section (!) of Section 5 of the Act specified the Districts of Patiala, Sangrur, Bhatinda and Rupar as the areas in which the University exercised its power and under sub-section (3) of the sald Section, 30th June 1969 was notified as the date for the purpose of the said Section. The effect of this Notification was that the Petitioners were deemed to be associated with and admitted to the privileges of the University and ceased to be associated in any way with or to be admitted to any privileges of the Punjab University.

It may also be mentioned that the Central Government by a Notification dated 12-9-1969 in exercise of the powers conferred on it by Section 72 of the Reorganisation Act diiected that the Punjab University constituted under the Punjab University Act 1947 shall cease to function and operate in the areas of the very four Districts regarding which the Punjab Government had earlier issued a Notification under Section 5 of the Act.

Thereafter the University by the impugned Circular dated 15-6-1970 issued to all the Principals of the Colleges admitted to the privileges of the University declared that Punjabi "will be the sole, medimll of instruction and examination for the pre-University even for Science group with effect from the Academic Session

1970-71".

Later the University by a letter dated 2-7-1970 informed the Principals that a decision of the Senate Sub-Committee dated 1-7-1970 as enclosed therewith was made giving "relaxation in some special cases of pre-University students seeking admission for the year 1970".

This enclosure was in Punjabi, an English translation of which would show that the relaxation was to permit students who had passed their matriculation examination with English as their medium of examination to be taught and to answer examination papers in the English medium at pre-University level 'only so long as the other Universities and School bodies of Punjab

~80

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

did not adopt Punjabi as their medium of instruction'.

On 7-10-70 the University made a further modification and it was decided by the Senate "that English be allowed as an alternative medium of examination for all students for the courses for which the Universi:y had adopted the regional language as the medium.

It was however uuderstood that qualifying in the elementary Punjabi paper would, as already decided by the University be obligatory in the case of such students offering English medium as had not studied Punjabi as an elective or optional subject even upto the middle standard".

Th~ resolution of 1-7-1970 further decided that students availing themselves of the facilities given thereunder will have to pass a compulsory course in Punjabi of 50 marks of which a minimum of 25 marks will be required to pass that course.

It is alleged that as a result of these Notifications and resolutions of the University the Petitioners Colleges have to teach all subjects including Science subjects in Punjabi and their students have to write examinations in the Gurumukhi script except in the cases exempted in the resolution of the Senate sub-Committee dated 1-7-1970.

It was therefore submitted that the Notification dated 15-6-1970 will result in the lowering of educational standards inasmuch as the students who have passed Matriculation examination in Hindi will be handicapped in studying their subjects in Punjabi and writing answers in Gurumukhi script ; that the students who have to prepare their subjects and write answers in Punjabi alone in the University examintion wiJJ be at a disadvantage in seeking admission to professional Colleges such as the Engineering College, Medical College, Business Management College and other Colleges and in the study of Science subjects; and that the stuJents who passed examination through Punjabi medium will be handicapped in the competitive examinations for the I. A. S., in research work and in various other fields.

It is further stated that the impugned notification has also resulted in lowering the standard in all respects, as there is (i) no coordination for teaching Science subjects and other subjects in higher Clas3es like B. A. and B.Sc., through the medium of Punjabi, (ii) no correspoi::ding arrangements have been made for answering papers in the examination for admission to the Indian Institute of Technology and All India Institute of Medical Sciences and other competitive examinations for Central Services.

The main contention of the Petitioners however, was that Section 4(2) of the Act does not empower the University to make Punjabi the sole medium of instruction ; that it is not within the legislative power of the State under Entry 11 of List II to make Punjabi the sole medium of instruction, which power in fact vested in the Union Parliament under entry 66 of List I and that consequently the provisions of Section 4(2) and the Notification and the Circulars referred to above are ultra vires and unconstitutional.

In so far as the medium of instruction in Punjabi with

Gurumukhi as the script is sought to be imposed on the educational institutions established by the Arya Samajis a religious denomination, they also offend Arts. 26(1), 29(1) and 30(1) of the Constitution.

A preliminary objection has been urged on behalf of the Respondents that in a Petition under Article 32, only where it is show.n that there is a violation of fundamental right that the validity of the legislation or of the legislative competence can be raised and determined, but in these cases as there is no violation of Article 14, 26, 29 and 30 of the Constitution the Petitioners ought not be allowed to challenge the vires of the Act on the ground of the competence of the legislature to enact the impugned law.

This question has been dealt with fully in the batch of petitions-in which we have just pronounced Judgment, where we had also considered the contentions of the learned Advocate General of Punjab and Shri Tarkunde, the learned Counsel for Respondents 2 in this behalf and hence we do not purpose again to reiterate the reasons in support of the conclusion that a petition under Article 32 in which petitioners make out a prima facie case that their fundamental rights are either threatened or violated will be entertained by this Court and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place. On the other objection that the Arya Samaj is neither a linguistic or religious minority nor is it a religious denomination we held that it was unnecessary to go into the question of whether it is a separate religious denomination for the purpose of Article 26(1) (a) or a linguistic minority for the purposes of Article 30(1) because in our view it would be sufficient for the petitioners if they could establish that they had a distinct script of their own and they were a religious minority, to invoke the protection of Article 29(1) and

30(1).

We had in those Writ Petitions held that what constitutes a linguistic or religious minority must be judged in relation to the State inasmuch as the impugned Act is a State Act and not in relation to the whole of India.

In this view we rejected the several contentions which are also urged in these petitions namely that Hindus being a majority in India are not a religious minority in Punjab and held that the Arya Samajis who are part of the Hindu community in Punjab are a religious minority and that they had a distinct script of their own the Devnagri which entitled them to invoke the guarantees under the aforesaid provisions of the Constituti<n.

It may be noticed that the petitioners did not complain at the time when the Notification undc:r sub-Section (1) & (3) of Sectbn 5 of the Act was published on the 13th May'69 as a result of which their Colleges became affiliated to the University and ceased to be affiliated to the Punjab University. It is only after one academic

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

year had gone by that they filed these petitions in September'70.

It was earlier pointed out that the Central Government also, had in exercise of the powers under Section 72(1) of the Reorganisation Act given, the necessary directions for the disaffiliation of the Colleges (which included those of the Petitioners) in the area notitied by the State Government from the Punjab University. No contention can therefore be urged, as was urged in the cases disposed of ealier, that the State Government has no power to issue a Notification under sub-section (!) & (3) of Section 5 of the Act to disaffiliate the petitioners from the Punjab University in the absence of a direction from the Central Government in that behalf, nor can any question arise in this case that the legislature was not competent to enact Section 5 until other provision was made by the Union Parliament in respect of the functioning and operation of the Punjab University over the areas over which it had prior to the Reorganisation jurisdiction, because the University was constituied prior to the Reorganisation Act by a State Act in which Section 5 had already vested the State Government with powers under subsection (!) & (3) of Section 5 of the Act. In view of this position the affiliation of the Petitioners with the Punjab University is valid and cannot be challenged.

The main ground of attack by. the Petitioners is that Section 4(2) of the Act does not confer a power on the University to make Punjabi the sole medium of instruction and if it does, then the State legislature has no competence to enact such a provision because that power is vested in the Union Parliament under item 66 of List I.

In any case the circular and the Notification referred to offend the petitioners right to conserve their script and administer their institutions in their own way.

The University does not deny that it had adopted Punjabi language as the sole medium of instruction and for examinations but it seeks to justify it on the groulnd that it is tlie national policy of the Government of India that the energetic development of Indian languages and literature is a sine qua non for educational and cultural development. Unless this is done the creative ener• gies of the people will not be released, standards of education will not improve, knowledge will not spread to !he people, and the gulf between the intellegentia and the masses will remain. if not widened further. The observations of the Education Commission in its report for 1964-66 as well as from the Report of the Committee of Members of Parliament on education in 1967 were referred to in support of this policy in furtherance of which the second respondent says that it "adopted a phased programme for switch over from English to Punjabi as sole medium of instruction for pre-University with effect from academic session !970-71..

It is therefore clear that when the University issued the Circular of 15-6-970 it intended to make Punjabi the exclusive medium of instruction as well as for examination.

The use of the word 'sole' in the circular would mean and imply that it is 'exclusive'.

In relation to the examination the medium being Punjabi would mean that the script to be used is exclusively Gurumukhi. Now the directive for the exclusive use of the language and script as the medium of instruction and for examination in all Colleges affects the petitioners Colleges which as we said are institutions maintained by a religious minority and directly infringes their right to conserve their script and administer their institutions.

The relaxation made subsequently in the earlier directives of the University makes little difference because in order to be allowed to take English as a, n alternalive medium of examination it is obligatory for a student to have passed the Matriculation examination with English as the medium of instruction and that unless he has studied Punjabi as an elective or optional subject even upto the middle standard he is required to qualify in the elementary Punjabi paper.

This concession however does not benefit students with Hindi as their medium and with Devnagri as their script because for them Punjabi medium is obligatory in the pre-University courses.

If as is contended that teaching in the regional language. which means in the mother tongue, accelerates the pace of educational and cultural development and makes for improvement and excellence of educational standards this criteria is equally applicable to the religious or linguistic minorities or to any other Section of the citizens who have a distinct language, script and culture and whose right to conserve them, and to administer their institutions are guaranteed under Article 29(1) and 30(1) of the Constitution. The right of the minorities to establish and administer educational institutions of their choice would include the right to have a choice of the medium of instruction also which would be the result of reading Article 30(1) with Article 29(1). But if the University compulsorily affiliates such Colleges and prescribes the medium of instruction and examination to be in a language which is not their mother tongue or requires examination to be taken in a script which is not their own, then it interferes with their fundamental rights.

It is true as is contended by the learned advocate for the second, Respondent, no linguistic minority can claim that the University shall conduct its examinations in the language or script which the minority institutions have a right to adopt but in such a case it must not force those institutions to compulsorily affiliate themselves and impose on them a medium of instruction and script not their own.

This Court had in the State of Bombay v. Bombay Education Society & Ors. (') while dealing with a circular issued by the State

(I) [1955] 1 S. C.R. 568.

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

of Bombay prohibiting the admission to a class where English is used as the medium of instruction, of any pupil who is not an Anglo-Indian and citizens of non-Asiatic descent, held that the State had not the power to prohibit contrary to the rights guaranteed under Article 29(2) the admission of students to Anglo Indian Schools whose mother tongue was not Englis_h.

Das J. as he then was delivering the unanimous Judgment of the Court observed at page 586 .- 'Where however, a minority like the Anglo-Indian Community, which is ba8ed, inter alia, on religion and language, has the fundamental right to conserve its language, script and culture under Art. 29(1) and has the right to establish and administer educational institutions of their choice under Art. 30(1) surely then there must be implicit in such fundamental right the right to impart instruction in their own institutions to the children of their own community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30(1) of the greater part of their contents".

The State must therefore harmonise its power to prescribe the medium of instruction with the rights of the religious or linguistic minority or any section of the citizens to have the medium of instruction and script of their own choice by either providing also for instruction in the media of these minorities or if there are other Universities which allow such Colleges to be affiliated where the medium of instruction is that which is adopted by the minority institutions, to allow them the choice to be affiliated to them.

When the country has been reorganised and formed into linguistic States it may be the natural outcome of that policy to allow Colleges established by linguistic and religious minorities giving instructions in the medium of language adopted by the Universities in other States to affiliate to them or if it wants Colleges including the minority institutions to be affiliated to it, to make provision for allowing instruction to be given and examination to be conducted in the media and script of the minorities when it imposes a regional language as the medium of instruction for the University.

No inconvenience or difficulties, administrative or financial can justify the infringement of the guaranteed rights. It is also worthy of note that no State bas the legislative competence to prescribe any particular medium of instruction in respect of higher education or research and scientific or technical instructions, if it intepferes with the Power of the Parliament under item 66 of List I to coordinate and determine the standards in such institutions.

D. A. v. COLI.BOB v. PUNJAB (Jagan mohan Reddy, J.) 685

In the Guiarat University Ahmedabad v. Krishna Ranganath Mudholkar (') the Respondent whose medium of instruction in the first year Arts Class in St. Xaviers College affiliated to the Gujarat University, was English was refused admission to Intermediate Arts courses to study for the examination through the English medium in view of the provisions of the University and certain statutes framed by the Senate which were subsequently amended.

One of the provisions challenged was Section 4(27), which empowered the University "to promote the development of the study of Gujarati and Hindi in Devnagri script or both as a medium of instruction and examination".

Prior to the amendment the proviso permitted that English may continue to be the medium of instruction and examination for a period not exceeding ten years but in 1961 it was amended and certain other periods were fixed and power given to implement the provisions.

The details of the amendment are not relevant for our purpcse. Tbe High Court of Gujarat issued Writs not to enforce the provisions of Sections 4(27) and the other provisions which were challenged.

In appeal two questions were urged before this Court : (!) whether the University bad the power under the Act to prescribe Gujarati or Hindi or both as exclusive medium or media or instruction and examinatio; i and (2) whether legislation authorising the University to impose such media was constitutionally valid in view of entry 66 of List I of the VII Schedule.

It was held by the majority, Subba Rao, J., as he then was dissenting, that (!) neither under the Gujarat University Act as originally enacted nor as amended in 1961 was the University empowered to impose Gujarati or Hindi as the exclusive medium of instruction.

That this was the intention, was clear because of the use of the indefinite article 'a' immediately preceding the medium of instruction while in the

provi!IO in relation to English being continued the definite article 'the' preceded the medium of instruction to make that the exclusive medium for the periods specified.

(2) While item 11 of List II and item 66 of List I may overlap recourse must be had to a harmonious. construction and where they overlapped, Union legislation must prevail over the State legislature, and since medium of instruction is not an Item m the legislative list it necessarily falls within item 11 of List II as also within items 63 to 65 of List I.

It was also of the view that insofar as it is a necessary incident of the power under item 66 it must be deemed to be excluded from item 11 of List II.

In the result disagreeing with the Gujarat High Court that Act 4 of 1961 insofar as it amended the proviso to Section 4

(27) is invalid because it was beyond the competence of the State legislature, the order of the High Court relating to the invalidity

(I) [1963] I Supp. S. C.R. 112.

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

of the statutes insofar as they purported to impose Gujarati and Hindi or both an exclusive medium or media of instruction and the Circulars enforcing those statutes was confirmed.

In Chitralekha v. State of Mysore (') also it was held that entries 65 and 66 of List I give the Union power to secure that the standard of research etc. is not lowered at the hands of any State or States to the detriment of national progress and the power of the State legislature must be so exercised as not to directly encroach upon the power of the Union under that entry.

Subba Rao, J., as he then was speaking for the majority referring to the Gujarat case with reference to a passage extracted from page 139 of the report, observed at page 379 :

"This and similar other passages indicate that if the law made by the State by virtue of entry 11 of List II of the Seventh Schedule to the constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the entry "CO-Ordination and determination of standards in institutions for higher education or research and scientific and technical institutions reserved to the Union, the State law may be bad".

No doubt in the Judgment of the majority in the Gujarat case there are certain observations which might appear to suggest that the legislative power under item 66, List I and item 11, List II may be dependent on certain variable factors which however they said were being made on certain abstract considerations placed before them. That this was so was further emphasised when it was observed at page 143 :

"We have no specific statute the validity of which, apart from the one which we will presently mention, is challenged".

In any case the actual decision in the case turned on the interpretation of Section 4(27) of the Gujarat University Act, and as we have earlier noticed it was held disagreeing with the High Court that the University was not vested with the power to prescribe Gujarati or Hindi as the exclusive medium and the provi- G sion which attempted to do so were struck down as invalid. The decision however did not express any opinion on the alleged infringement of the fundamental rights of the petitioners under Article 29 (I) and 30 (!) of the Constitution.

Applying the decision to facts of this case there is no difficulty in holding that Section 4 (3) of the Act which is in similar H terms to Section 4 (27) of the Gujarat Act, by the use of the indefinite Article a prefixed to the word medium, does not require

(I) [1964] 6 S. C.R. 368.

D. A. v. COLLEGE' PUN/AB (Jagan mohan Reddy, J.)

Punjabi to be made the exclusive medium of instruction.

This conclusion is further reinforced by the nature of the power which is only "to progressively adopt it as a medium of instruction and examination for as many subjects as possible".

The University by adopting Punjabi as the sole or exclusive medium for the Col leges affiliated to the University, notwithstanding the concessions granted, acted in excess of the power conferred on it.

While the University can prescribe Punjabi as a medium of instruction it cannot prescribe it as the exclusive medi.un nor compel affiliated Colleges established and administered by linguistic or religious minorities or by a Section of the citizens who wish to conserve their language script and culture, to teach in Punjabi or take examina tion in that language with Gurmukhi script.

The University Act having compulsorily affiliated these Colleges must of necessity cater to their needs and allow them to administer their institution& in their own way and impart instructions in the medium and write examination in their own script.

In this view the petitions are allowed with costs.

The impugned Circulars of 15-6-1970 as amended by Circular of 2-7-1970 in terms of the resolution of the Senate SuM:ommittee of 1-7-1970 and that of 7-10.1970 are struck down as being invalid and ultra vires of the powers vested in the University. Costs one hearing fee.

K. B. N.

P.itliloM allowed.

D. A. V. COLLEGE BATBINDA, ETC

STATE OF PUNJAB & ORS

G. K. MITTER

K. s. HEGDE

A. N. GROVER

P. JAGANMOHAN REDDY, JJ.

Punjabi University Act, 1961

Societies Registration Act

s. 5

s. 72

s. 4(2)

Section 4(3)

(1964] 6 S.C.R. 368

Art. 30(1)

Art. 29(1)

Art. 32

Constitution of India

Article 32

Section 5

Section 72

Section 5

Section 4(2)

Section 4(2)

Arts. 26(1), 29(1) and 30(1)

Article 32

Article 14, 26, 29 and 30

Article 32

Article 26(1)

Article 30(1)

Article 29(1) and

30(1)

Section 72(1)

Section 5

Section 5

Section 5

Section 5

Section 4(2)

Article 29(1) and 30(1)

Article 30(1)

Article 29(1)

[1955] 1 S. C.R. 568

Article 29(2)

Art. 29(1)

Art. 30(1)

Article 29(1)

Article 30(1)

Section 4(27)

Sections 4(27)

Section 4

Seventh Schedule

Section 4(27)

Article 29

Section 4

Section 4

[1964] 6 S. C.R. 368