DHANESHWARBUWA GURU PURSHOTTAMBUWA OWNER

OF SHRI VITHAL RUKHAMAI SANSTHAN

THE CHARITY COMMISSIONER, STATE OF BOMBAY March l, 1976

[P. K. GOSWAMI ANDS: MURTAZA FAZAL ALI, JJ.J

Bo111ba) P:1blic Trust Act, 1950 (20 of 1950)-s. 2(13) Public or Private Trust-Tests for detern1i11ation of.

The principles of law for determination of the question whether an endow-- ment is public or private are : ( 1) In a private trust, the beneficiaries arc specific individuals who are as...:ertainec1 or ;::apable of being ascertained; in a private trust, they are the C general public or a class thereof which is incapable of being ascertained.

[526CJ

(2) The intention of the founder as to whether specified individuals or the ge;;, ernl public or any specified portion thereof could have the right of worship.

[526E]

(3) When property is dedicated for the V.'orship of a family idol. it is a private :;.nd not a public endowment. Where the beneficiaries are not specified individuals, the endowment can only be regarded as public.

[526F1 Devfd l\1andan v. Murlidhar, rt9561 S.C.R. 756 and State of Bihar & Ors.

v. Smt. CilanHila Dasi, [1959] Suppl. S.C.R. 601/613, referred to.

( 4) Proof of user by the public without interference would be cogent evidence that the dedication is in favour of the public.

[527A}

l\'aravan BhaRwaritrao Gosavi Balajiwala v. Gopal Viriayak Gosavi and vi hers, r19601 1 S.C.R. 773. referred to.

(5) It is unusual for rulers to make grants to a fan1ily idol. [52781

(6) Participation of the members of the public in the darshan in the

trnple and in the daily acts of v, rorship or in the celebrations on festival occasions m:iy be a very important factor to consider in determining the character of the temple.

[527E]

Ti!kayat Shri Govifldlalii ft., faharaj v. The Stnte of Rajasthan and other.l. fl9641 l S.C.R. 561. referred to.

(7) The origin of the temple. the manner in \vhich its affairs are managed. the n::iture ::ind extent of the gifts received by it, rights exercised by the devotees F in regard to \vorship, the consciousness of the manager and the con<; ciousness of the devotee" as to the public character of the temple establish whether a temple is a public or a private temple.

[527F]

Goswami Shri Malialax1ni Vahu; i V. Ra1111('/ihoddas Kalidas and ors. rJ97012 S.C.R. 275. referred to.

(8) It is not always possible to have all the features of a public trust in n given c.1.c; e; even some of the tests may be sufficient to condude about the character of the trust.

[528E] Dismissing the appeal

HELD:

In the instant case from the documentary and oral evidence the fo1lowing -I features are present : •

( i) The deity insta1Jed in the temple was intended by the founder to be continually worshipped by an indeterminate multitude of the Hindu public.

(ii) Jn orJer to facilitate worship by the public. the founder also intended that regular hhajan, kirtan and worship shall be maintained and annual ceremo~ nies and processions for pilgrimage shall be conducted by the saints in succession no1ninated by the reigning saint.

(iii) There has been no evidence of any hindrance or restriction in the matter of continuous \\.'Orship by the public extending over a long period.

(iv) More than a century ago the tem:_ile, in its own name, was the rcipie.nt of land by Royal grant and the same has been managed by the saints in succession as manager, not as personal or private property.

(v) Gifts of land by members of the public from the Taluka and outside_ it in favour of the temple or of the Sansthan were made for the purpose of worship.

(vi) Colle..:tion of subscriptions were made from house to house by taking Maharaj and also for 'Gui al' ceremony.

(vii) lloldinu. out of the Sansthan to all intents and purposes as a public temple.

(viii) Treating of the Sansthan by those who are connected with the manage~ ment as intended for user by the public without restrictions. (ix' Absence of any evidence in the lon~ history of the Sansthan to warant that it had any appearance of, or that it was ever treated as, a private property. [530E-H; 53 IA-Bl

The above features lead to the inescapable conclusion that Shri Vithal Rukhamai Sansthan is a public trust within the meaning of s. 2(13) of the Bombay Public Trust Act. 1950.

CIVIL APPELLATE JuRISD!CT!ON: Civil Appeal No. 1231 of 1968.

Appeal by special leave from the judgment and order dated the 20th December 1962 of the High Court of Judicature at Bombay in Civil Appeal No. 151 of 1960.

B. D. Bal with A. G. Ratnaparkhi, for the appellant.

V. S. Desai with M. N. Shroff for S. P. Nayar, for respondent.

The Judgment of the Court was delivered by GoswAMl, J.-The question that arises in this appeal by special leave is whether Shri Vithal Sukhamai Sansthan at Amalner, (East Khandesh) was a private Devasthan or a public religious trust.

There was a saint endowed with spiritual powers by the name of Sakharam Maharaj at Amalner.

The deity of his worship was Shri Vithal Rukhamai.

Although the origin of the Sansthan is

dipped somewhat in antiquity and direct testimony was lacking, it F has never been disputed that Sakharam Maharaj constructed a temple in the year 1817 at Amalner and installed the aforesaid deity according to religious rites.

He also acquired certain properties and the said temple with the properties constituted Shri Vithal Rukhamai Sansthan of Amalner.

The sansthan had movable property of the value of Rs. 19,164/- and immovable properties of the value of Rs. 1,06,000/- and the average gross annual income as well as the G average annual expenditure was Rs. 11,000/-.

After the pasing of the Bombay Public Trusts Act. 1950 !No. 29 of 1950) (bnefly the Act) an application under section 18 of that Act was filed by three persons Bhaskarrao Chimanrao Deshmukh Ramrao .sahebrao Deshmukh and Ramkrishna Tryambak Deshpande'. as ons.tttuted attorneys of Vasudeobuwa who was described in the application as the "?wner" of the property. The word 'Buwa' means H samt: The aphatlon was made on May 29, 1952, to the Assistant Chanty Comm1ss1oner, Poona, under protest and without prejudice

to the claim made therein that the Sansthan was not a public trust.

In view of the penal provision under section 66 of the Act in the case of non-compliance with section 18 ( 1) of the Act the said application was made ex abundanti cautela.

The Assistant Charity Commissioner after requisite notice made an enquiry into the matter in accordance with the provisions of the Act.

On behalf of the applicants representing the Sansthan evidence of the attorney Rarnkrishna Deshpande was recorded and he was cross-examined by the assessors as w"ll as by the Assistant Charity Commissioner.

Some documents were also produced on behalf of the Sansthan.

Three witnesses were examined on behalf of the Assistant Charity Commissioner and were afforded an opportunity to the applicants' pleader for cross-examination.

At the close of the enquiry the Assistant Charity Commissioner by his order of August 25, 1956, held the Sansthan to be a public trust and ordered its registration as a public trust under the Act.

The applicants thereupon filed an appeal under section 70 of the Act before the Charity Commissioner, Bombay, who by his order of August 31, 1957, affirmed the decision of the Assistant Charity Commissioner.

That led to an application under section 72 of the Act to the District Judge of West Khandesh at Dhulia which was duly filed on behalf of Purshottarnbuwa who meanwhile succeeded Guru Vasudeobuwa as "owner" of the Sansthan.

The earned District Judge reversed the decision of the Charity Commissioner by his order of October 16, 1959, and declared the Sansthan to be a private property and not a public trust.

The Charity Commissioner then appealed under section 72 ( 4) of the Act to the High Court of Bombay.

The High Court by its order of 19/20th December, 1962, set aside the order of the District Judge and held the Sansthan to be a public trust under the Act and restored the order of the Charity Commissioner.

Hence this appeal by special leave which was obtained on March 29, 1968, after condonation of delay in the peculiar circumstances of the case arising out of revocation by the High Court of its earlier certificate in favour of the appellant on account of default of deposit of security.

As noted earlier there was both oral and documentary evidence. adduced in this case.

The learned District Judge relied mostly on the documentary evidence for his conclusion in favour of the appellant.

The High Court took note of both oral as well as docurnentarv evidence.

The High Court particularly relied upon an admission oi the appellant's witness, Rarnkrishna Deshpande, when he stated that "we cannot prevent people from going to the temple as the temple is meant for the Darshan by the public'".

It is not disputed by Mr. Bal appearing on behalf of the appellant that the Sansthan in question is an endowment. His only contention is that it is a private religious endowment and not a public one.

He su bruits that there is no evidence of long user of this temple by

the public as a matter of right.

Mr. Bal further contends that the High Court failed to consider all the material documents filed on behalf of the appellant except only Ex. 35 and that the conclusion was highly erroneous being contrary to the one that had been reached by the District Judge on appraisal of the entire documentary evidence.

Before we proceed further, it may be appropriate to note the definitions of 'public trust' and 'temple' in section 2(13) and section 2(17) respectively of the Act which read as follows :-

s. 2 (13) : " 'Public trust' means an express or constructive trust for either a public religious or charitable purpose, or both and includes a temple, a math, a wakf, church synagogue, agiary or other place of public religious worship, C a dharmada or any other religious or charitable endowment . ..... "

s. 2 ( 17) : " 'Tmple' means a place by whatever designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship".

Relying upon the above definitions Mr. Bal submits that there is absolutely no evidence in this case about dedication to the public or public user of the temple as a matter of right.

Since the grievance of the appellant is directed against the High E Court's absolute failure to consider all the documentary evidence, we may deal with that aspect first.

The earliest document produced in this case is a 'Sanad' (Ex. 42) of November 1, 1863.

This Sanad was granted by the then British Government during the reign of Queen Victoria in favour of "Devasthan Shri Vithal Rukhamai".

The Sanad refers to the entry in the village accounts.

The entry mentioned therein is in the village accounts in the Khandesh Collectorate. for the year 1860-61, field Nos. 623 and 624 measuring 14.S acres of land in the name of the holder as Devasthan Shri Vithal Rukhamai, Manager Balkrishnabuwa, Guru Govindbuwa, Amalnairker.

There are significant recitals in the Sanad to the following effect :

"It is hereby deolared that the said land shall be continued for ever by the British Government as the endowment property of Shri Vithal Rukhamai of Kasabe Amalnair Talooka Amalnir on the following conditions, that is to say, that the managers thereof shall continue faithful subjects of the British Government, and ...... the said land shall be continued for ever as endowment loam without increase of land tax over the said fixed amount".

The amount fixed was Rs. 17 /4/0 per annum.

A It is true that the High Court has not referred to this Sanad but

the District Judge did.

The District Judge held that- " ...... the expression in the Sanad cannot be in any way determinative of the nature of the temple or religious endowment as a public trust".

It is, however, difficult to accept the conclusion of the District Judge.

The Sanad being an ancient Royal grant is a very important piece of evidence to show that although Sakharam Maharaj, the founder of the temple, had already been succeeded by Guru Govindbuwa and the latter by Balkrishnabuwa, the land had been held in the year 1860-61 in the name of the Devasthan. It is in the name of the Devasthan alone that the grant was continued by the Government.

This would go to show that the Government recognised the Sansthan with the temple as a public religious endowment and only on that basis the grant was continued.

Apart from that the temple was shown to have a Manager and not an owner as such.

In the absence of anything to the contrary of a convincing nature, a grant by the Government in favour of the temple describing the property to be in charge of a manager leads to an unerring inference that the property is a public religious endowment.

From the evidence of Ramkrishna Deshpande, one of the constituted attornies, we find the origin and the devolution as follows :-

"The originator of this Sansthan is Sakharambuwa.

After Sakharam there came Gobindbuwa. He was followed by Balkrishnabuwa.

Then came Prahladbuwa. Thereafter Tukarambuwa came to Gadi. After him there was Krishnabuwa and after him there was Balkrishna.

Then came Vasudeo.

After him the present Buwa Purshottam came to Gadi. This Gadi goes to Shishya from the Guru".

This evidence of Ramkrishna Deshpande stands corroborated by the Sanad which shows in the year 1860-61 the Manager of the Sansthan as Balkrishnabuwa Guru Govindbuwa.

Guru Govindbuwa F was the second in the line of succession after Sakharam, the founder, and Balkrishnabuwa being the third in the line.

It is clear from the Sanad that the Government treated the temple as a public religious endowment.

The next document in sequence is a Varaspatra of February 28, 1869 (Ex. 35) executed by Guru Govind Balkrishnabuwa in favour of Prahladbuwa.

This is a document which was relied upon both by the District Judge as well as by the High Court. Varaspatra is a deed of nomination by which an Adhikari for the Sansthan was nominated in order to take charge of the property, maintain and continue the religious worship of the deity as per tradition as well as of the celebration of the festivals in accordance with the customary practice of the Sansthan. The appellant draws our attention to the following recitals in the above deed :-

"I have been carrying on the Malaki of Shri Sansthan Amalner ...... "

l •

DHANBSHWARBUWA v. CHARITY COMMR. (Goswami, J.) 523

According to the appellant this would go to show that the executant of the document Balkrishnabuwa described himself as 'Malak' (owner) of the Sans than.

It is further pointed out that while nominating Prahlad as Adhikari, Balkrishnabuwa stated in the said document as follows :-

"You are entitled to the ownership of all the incomes that will come before the Deity, Shri Samarth and during the Swari (procession) as well as the income of Inam Najrana and the income of movable and immovable property".

x x x x x "The entire ownership of the Sansthan and all the movable and immovable property e.tc. pertaining to the Sansthan is of yours.

That ownership is of your own.

Your Bhauband and others have no right whatsoever over the same.

You are free to give and take as per the Shishya-sampradaya as has been done previously".

From the above, the appellant contnds that the Sansthan was a private property and it was also transferred to the Shishya Adhikari

to maintain it as his own property.

We are unable to accept this submission as we find some other significant receitals in the douments

itself warranting a contrary conclusion.

Although it is stated in the document that Balkrishnabuwa was "carrying on the Malaki", ihe at the same time states with regard to the Sansthan thus :

" ..... the same was entrusted to me by Shri Guru Maharaj" .... . x x x x x "I, therefore, thought that I should entrust the work of the Sansthan to you and have appointed you to the said Sans than".

The nature of devolution is explicit in the above extract.

Although there is use of the words owner and 'Malaki' in the above recitals, the entire tenor of the document read as a whole goes to show that the property has always been treated as trust property even by the Adhikari saints and the Adhikaris or the disciples who succeeded one after the other were not owners but trustees of the property.

This ancient document read as a whole does not admit of any olher interpretation consistent with the nature of the property and t.he av?wed object and prpo.se of the founder clearly revealed therem w_hih has been came? mto . effect by successive loyal and devoted d1sc1ples.

The words MalakI' and 'owner' in the context are not used in the broad sense to indicate an absolute character of personal ownership.

The next document is Vavasthapatra (Ex. 41) of April 25, .1897. . We find from the e_v1dence of Ramkrishna that the Shishya 1s appomted by .the Mahra1 wo happens to be holding the Gadi ; at the relevant time.

This fact 1sborne out by the recitals in Ex. 41.

This document may be described as a deed of nomin.ation or will whereby it appears Krishnabuwa whose Guru was Tukaram Maharaj nominated Balkrishna Gangadhar Dhamurkar as the Devadhikari of the Gadi to succeed him.

The appellant submits that Balkrishna was bestowed a 'Malaki' as the term appears in this document.-

Although the High Court has not dealt with this document, there is a reference in its judgment to the contents of the same as being similar to Ex. 35.

The principal emphasis on both these documents Ex. 35 and Ex. 41 is that the words 'owner' and 'Malaki' were used in the recitals.

As stated above we are unable to hold that recitals in these documents taken as a whole can reasonably lead to the conclusion that the Sansthan is a private property.

After the turn of the century, coming now to comparativdy recent times, there are four documents Ex. 40, 37, 39 and 38 dated September 10, 1929, July 15, 1936, July 2, 1946 attd January 28, 1949, respectively.

In Ex. 40 th~ party taking the gift is described as Vahiwatdar Panch of Shri Sakharam Maharaj. Sansthan, Vithalwadi, Amalner.

The donor, an old agriculturist of a different Ta!uka viz.

Erandole, writes :

"I give the gift deed in writing as follows :-

With the object of giving possible help through me to the above sansthan, I have given in gift my ancestral immovable property ..... . x x x x x I have given in gift the above mentioned property &s aforesaid of my free will for the purpose of religious work in order that my life may be of bliss as I have no male issue and wife.

x x

The said field should generation to generation. full owner thereof'.

x x x

be used for the sansthan from The above sansthan qas become

In the gift deed Ex. 37 executed by three businessmen of Amalner there arc recitals to the similar effect :

"When we were joint, the said fie, Jd was given as a gift to you for the service of the •ansthan, viz., Shri Vithal Rukhmai Sansthan, Amalner and was given in your possession.

Now all our movable and immovable estate is partitioned orally.

Hence the gift deed of the said field, which had remained unexecuted, has been executed today ...... "

The said gift deed was in favour of Archak (worshipper) Vasudeobuwa Guru Balkrishnabuwa.

Again, in the gift deed Ex. 39 the doncc is described as "Shri Rukhmini Pandurang Sansthan, Sansthan Amalner Sakharam Maharaj at present Vasudev Buwa Guru Bal-

I ,

~~ ,,

l I •

'l>HM'!ESl!WARBUWA v. CHARITY COMMR. (Goswami, J.) 525

krishna Maharaj".

The following recitals in the said document are eloquent:

"This land is given to you in charity as per the order of (my) mother with a religious view and with an intention ot bcnefitting others with the object of achieving happiness in this world and in the next world according to the shastras and the above land is given in your possession this day. Hence you are the full owner of the land and you are free as full owner thereof to manage and carry on the V ahiwat of the said land by right of ownership perpetually from generation to generation on the strength of this writing.

x x x x x The Dindi of the said Sansthan from Amalner remains at Sh:tvgaon on the 30th of Jeshta vadya or on the 1st of Ashad Shudha according to practice every year.

You shoud spend the income of the said property for the purpose of Naivadya for the Deity Pandurang at night that day."

The beneficiaries of this gift are clearly the unasccrtained Hindu D public and not ascertained individuals and the donee is a trustee accepting the gift on behalf of the Sansthan.

The last deed of gift is Ex. 38 and the donee is "Shri Vasudev Buwa Guru Balkrishna Buwa" described as the worshipper carrying on the "Vahiwat of Shri Vithal Rekhmai Sansthan". The deed goes on to say:

"I have full faith in Shri Sakharam Maharaj.

Hence with the intention (object) that some service may be rendered by me for his Devasth~, I have given in gift out of love the below mentioned 1 property valued at Rs. 600

(Six hundred) without taking any consideration from you for the purpose of expenses of performing worship and offering Naivadya food". '

All the above gifts were donated to the Devasthan and for the maintenance of worship therein.

These gifts were not made in favour of individuals as such in order that the beneficiaries of the gifts will be only those individuals. It is clear that the beneficiaries of the deeds are the deity and the Sansthan and the gifts were made with the object of maintenance of the worship of the deity for the benefit of the Hindu public as a whole.

The expression in the recital that "you are free as the full owner thereof' does not convert the gift which is expressly in favour of the deity or Sansthan into that in favour of an individual as private property. The appellant relies on all these documents for the purpose of showing that the endowment is private only because ownership of the donor is ':ransferred to the donee.

We are, however, unable to accede to this submission. It is very significant that in the last gift deed Ex. 38 of January 28, 1949, there is a most reverential reference to Shri

526 SUPIUiMll COURT REPORTS

[1976] 3 S.C.R.

A Sakharam Maharaj and his Devasthan when Sakharam Maharaj had departed in the past century.

Not much can be made therefore from the expression "His Devasthan" to convert the property into a private endowment.

The reference to Sakharam Maharaj Sansthan, wherever it appears, is only for the purpose of identification and commemoration of the hallowed saint who had admittedly founded the same.

The principles of law for determination of the question whether an endowment is public or private are fairly well-settled.

This Court observed in Deoki Nandan v. Murlidhar(') as follows :-

"The distinction between a private and a public trust is that whereas in the former the beneficiaries arc specific individuals, in the latter, they are the general public or a class thereof.

While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment''.

This Court further held :

"When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty.

The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.

In accordance. with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals.

B11t where the beneficiaries

ar~ not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers''.

(See also the State of Bihar & Ors. v.

Sm.

Charusila Dasi(').

Distinguishing the decision of the Privy Council in Balm Bhagwan Din v. G.r Har Saroon(') on the ground that the properties in that case were granted not in favour of an idol or temple but in favour of one Daryao Gir who was main1aining a temple and to his l!Cin in perpetuity, this Court further held in the above decision :

"But, in the present case, the endowment was in favour of t.he idol itself, and the point for decision is whether it

(ll [19561S.C.R. 756.

(2) [1%91 Supp, 2 S.C.R. COJ, 6J3.

(J) (1939) LR. 67 LA. I.

• •

~ I

was private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public".

This Court also distinguished the'aforesaid Privy Council decision <1/ Babu Bhagwan Din's case (Supra) in Narayan Bhagwantrao Gosavi Batajiwale v. Gopal Vinayak Gosavi and Others(') .

This Court also observed in Narayan Bhagwantrao Gosavi Balujiwale's case (supra) that it is also unusual for rulers to make grant to a family idol

In Tilkayat Shri Govindlalji Maharaj v. The State of Raituthan

and others('), this Court had to consider about a Hindu temple being c private or public and observed as follows :-

"Where evidence in regard to the foundation of the temple is not clearly available sometimes, judicial decisions rely on certain other facts which are treated as relevant. * * • •

Are the members of the public entitled to an entry in the temple ?

Are they entitled to take part in offering service and taking Darshan in the temple? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right. The participation of the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festivals occasions may be a very important factor to consider , in determining the character of the temple".

In Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas and and Ors.( 8 ) this Court observed as follows :-

"In brief the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is a public temple or a private temple".

The learned counsel for the appellant relied upon the decision in ni/wr State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das(') and drew our attention to the following observations thereir. :

"Tims, the mere fact of the public having been freely admitted to that temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on

(I) [1960) 1 S.C.R. 773.

(3) [1970] 2 S.C.R .. '1,75.

(4) \1971] 3 S.C.R. 680.

the circumstances which give strength to the inference that the user was as of right" .

• • * * "Examples do occur where the founder may grant property to his spiritual preceptor and his disciples in succession with a view to maintain one particular spiritual family and for perpetuation of certain rights and ceremonies which are deemed to be conducive to the spiritual welfare of the founder and his family, In such. cases it would be the grantor and his descendants who are the only persons interested in seeing that the institution is kept up for their benefit. Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity in which the public or a section of it has an interest. Such charities, as already stated earlier, appertain to a private debutter also" .

• • * •

We do not find that there is any difference in the ratio of the principles followed in the above decision.

The. case went against the D Board in the above decision in the absence of "evidence of a reliable kind" of public user as "evidence of dedication".

It is not always possible to have all the features of a public trust in a given case. Even some of the tests laid down by this Court may, in a given case, be sufficient to enable the court to come to a conclusion about the character of the trust.

We cannot agree that the High Court was not right in giving due importance to the admission of the constituted attorney Ramkrishna Deshpande that they "cannot prevent people from going to the temple as the temple is meant for the Darshan by the public".

The consciousness of the constituted attorney about the nature of the property, which has been held out for more than a century as a public religious endowment, adds to the effect of the documentary evidence produced by the appellant i.n this case in favour of the same conclusion. It has to be remembered that the founder Sakharam Maharaj was a celibate and the successive disciples who succeeded as Adhikaris of the Gadi were also celibates.

From Ex. 35, the first Varaspatra "f February 28, 1869, one gets a full picture of the working of the Sans than :

"The service and Bhajan etc. of the Deity have to be made as per the order of the Guru according to the Sampradaya".

• • * •

" .... you should perform the Bhajan as was being done as per the Shishya Sampradaya and perform the Bhaian in Chaturmas at Shrikshetra Pandharpur regularly and thereafter you should come to Amalner and keep up the practice of celebrating the festivals e!c. of Shri Sakharam Maharaj regularly. as was being done.

You should maintain tlw

Mandali (Committee) of the sans than and continue the whole Mandali (Committee) with unanimous opinion.

You know the V ahiwet of the Sansthan as is going on. You should continue the same accordingly in future". , .... .. • * * "That owernship is of your own. Your bhauband and others have no right whatsoever over the same. Yon are free to give and _take as per the Shishya-sampradaya as has been done previously.

The Deshmukhs and Deshpandes at Kashev-Amalner have been rendering service to the said Sansthan faithfully. You should make arrangement to accept service from them as being done accordingly and go on rendering service and performing Bhajan etc. faithfully as mentioned herein as per the Vaishnava sampradaya as being done from before".

x x x x x

We have also seen from the evidence of Ramkrishna Deshpande:

"All the Buwas are saints.

People go for darshan be- D cause these people were saints.

This Sansthan is based on the principles of Shishya parampara. This property goes from Guru to his Shishya".

* * * "The residents of the place where the Bhajans are performed attend these Bhajans. In the days of Pandharpur fair E the Maharaj remains present.

He stays there for about 4 months.

During his stay at Pandharplir Bhajans are performed daily.

During the fair his Shishyas perform the Bhajans. While returning from the pilgrimage also he performs Bhaians.

Maharaj also attends other fairs at Nasik etc.

At that time also his Shishyas accompany him.

By Shishyas I mean the disciples as well as followers. Shishyas F are few but the followers are in large numbers.

In the utsava at Amalner many saints of other places, Shishyas and followers take part. The persons who attend this year besides Sh; shyas and followers are about ten thousand. The followers and saints arc paid their cost of journey. All their expenses of boarding and lodgin~ are met by this Sansthan.

The Bha.i2ns at Pandharpur performed by Maharaj are G attended by the public".

Ramkrishna Deshpande concludes his evidence by stating :

"I con.tend that . this is a private temple because others cannot perform puja without permission of Maharaj".

The oral and documentary evidence leave no room for doubt what- H soever that the Sansthan and the temple are public religious endowments. Even in acknowledged public temples any and everybody cannot perform puja in the sense in which the head pujari daily performs

at var\ous stages.

Public is not and may not be allowed to the innermost sanctum where the deity is installed except under special circumstances with special permission.

That would, however, not lead to the conclusion that the temple is a private temple.

Worshippers are not merely the accredited daily pujaris but also the multitude of the public who go to the temple for Darshan of the deity and for offerings.

The contention of Ramkrishna Deshpande in his evidence, therefore, is without any force.

When the origin of an endowment is obscure and no direct oral evidence is available, the Court will have to resolve the controversy about the character of the trust on documentary evidence, if any, the object and purpose for which the trust was created, the consistent manner in which the property has been dealt with or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, to all intents and purposes, as a rnatter of right without the least interference or restriction from the temple authorities, to foster maintenance of the worship the accretion to the trust property by way of grants from the state of gifts from outsiders inconsistent with the private nature of the trust, the nature of devolution of the property, are all important elements in determination of the question whether a property is a private or a public religious endowment.

We are satisfied that in this case all the above tests are fulfilled.

To sum uo from the documentary and oral evidence produced, the folJowing features are present in the present case :

( 1) The deity installed in the temple was intended by the Founder to be continually worshipped by an indeterminate multitude of the Hindu public.

(2)

(3)

(4)

(5)

In order to facilitate worship by the public, the founder also intended that regular Bhajan, Kirtan and worship shall be maintained and annual ceremonies and processions for pilgrimage shall be conducted by the saints in succession nominated by the reigning saint.

There has been no evidence of any hindrance or restriction in the matter of continuous worship by the public extending over a long period.

More than a century ago the temple in its own name was reccpient of land by Royal grant and the same has been managed by the saints in succession as Manager not as personal or private property.

Gifts of land by members of the public from the Taluka and outside it in favour of the temple or of the Sansthan for the purpose of maintenance of the worship.

( 6) Collection of subscriptions were made from house to house by taking Maharaj and also for 'Gula!' ceremony.

(7) Holding out of the Sansthan to all intents and purpose as a public temple,

• ' (

(8) Treating of the Sansthan by those who are connected with the management as intended for user by the public without restriction.

(9) Absence of any evidence in the long history of the Sansthan to warrant that it had any appearance of, or that it was ever treated as a private property.

.,.

While each case of endowment as to its character depends on the l: particular history, tradition and facts, the presence of the above features in the instant case lead to the inescapable conclusion that Shri

Vithal Rukhamai Sansthan at Amalner is a public trust within the meaning of section 2 ( 13) of the Act.

In the result the appeal fails and is dismissed.

W c will, however, make no order as to costs.

P.B.R.

Appeal dismissed .

March l, 1976

Trust Act, 1950

s. 2(13)

Goswami

Malialax1ni Vahu

Vithal Rukhamai Sansthan

s. 2(13)

CIVIL APPELLATE JuRISD!CT!ON

High Court of Judicature at Bombay

B. D. Bal

A. G. Ratnaparkhi

V. S. Desai

M. N. Shroff

S. P. Nayar

GoswAMl

Vithal Sukhamai Sansthan

Sakharam Maharaj

Amalner

Vithal Rukhamai

section 18

Bhaskarrao Chimanrao Deshmukh Ramrao

.sahebrao Deshmukh

Ramkrishna Tryambak Deshpande

section 66

section 18

Rarnkrishna Deshpande

August 25, 1956

section 70

Charity Commissioner, Bombay

August 31, 1957

section 72

Purshottarnbuwa

Guru Vasudeobuwa

October 16, 1959

section 72

High Court of Bombay

19/20th December, 1962

March 29, 1968

Rarnkrishna Deshpande

Bal

section 2(13)

section 2(17)

s. 2

s. 2

November 1, 1863

Amalnairker

British Government

Guru Govindbuwa

Balkrishnabuwa

Ramkrishna Deshpande

Sakharambuwa

Sakharam

Gobindbuwa

Prahladbuwa

Tukarambuwa

Krishnabuwa

Balkrishna

Vasudeo

Buwa Purshottam

Guru Govindbuwa F

February 28, 1869

Guru Govind Balkrishnabuwa

Prahlad

Samarth

Inam Najrana

Guru Maharaj

Ramkrishna

Tukaram Maharaj

Balkrishna Gangadhar Dhamurkar

September 10, 1929

July 15, 1936

July 2, 1946

January 28, 1949

Vithalwadi

Vithal Rukhmai Sansthan

Vasudeobuwa Guru Balkrishnabuwa

Rukhmini Pandurang Sansthan

Sansthan Amalner Sakharam Maharaj

Goswami

krishna Maharaj

Amalner

30th of Jeshta vadya

1st of Ashad Shudha

Pandurang

Vasudev Buwa Guru Balkrishna Buwa

Vithal Rekhmai Sansthan

Sakharam Maharaj Sansthan

Daryao Gir

Babu Bhagwan Din

Narayan Bhagwantrao Gosavi Balujiwale's

Darshan

[1960) 1 S.C.R. 773

1971] 3 S.C.R. 680

Kashev-Amalner

Guru

Maharaj

Nasik

Pandharpur

section 2


P. PHILIP

THE DIRECTOR OF ENFORCEMENT. NEW DELHI & \

ANOTHER .,.

March 3, 1976

[R. S. SARKAR!A AND N. L. UNTWAL!A, JJ.]

Interpretation of statutes-Saving provision-Words and Plzrases-Mea11i11f.: of Petition-Criminal Procedure Code 1973 Sec. 484(2)-(a) Revision application pending before Sessions Court under Cr. P. Code 1898, whether petition.

In February, 1971, the Director of Enforcen1ent n1ade a complaint against 4 accused for violation of certain provisions of the Foreign Exchange Regula 4 tions Act, read with section 120-B of the Indian Penal Code.

The appellant herein who was accused No. 2 made an application before the T'rial Court raising two preliminary objections to the maintainability of the con1plaint and prayed for its dismissa1.

The Trial Court by its judgment dated 5-9-1973 disn1issed the application holding that the points raised should be considered after recording the evidence. The appeliant filed a Revision Application to the Sessions Court under section 435 of the Code of Cr. Procedure 1898, which \Vas dismissed in August, 1974. The ttppellant filed a Revision Application to the High Court which was dismissed by the High Court on the ground that it was not maintainable in view of section 399(3) of the ne'v Code.

Jn an appeal by Special Leave, the appe11ant contended :

At the time when the Revision petition was filed before the Sessions Judge the old Code was in force and in view of section 484 of the new Code the application had to be disposed of in accordance with the old Code. l"he respondents on the other hand, contended that the word 'application' in section 484(2) of the new Code is a word of limited import and that it would include only those applications which could be finally disposed of by the Sessions Judge.

HELD : The word 'application' in the saving provision immediately follows the term 'appeal'.

It, therefore, takes some colour from the coUection of words in which it occurs. It is synonymous with the term 'petition' which 1neans a written statement of material facts, requesting the Court to grant the relief or remedy based on those facts. It is a pecu1iar mode of seeking redress recogned by law. There is no doubt that the word 'application' as used in clau5e (a) of section 484 of the new Code will take in a revision application n1ade under section 43.5 of the Old Code. The Revision Application made by the appellant was pending before the Sessions Judge when the new Code came into force.

Therefore, it was required to be disposed of in accordance with the provisions of the Old Code. .[5340-F, G-H]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 76 of 1976.

T. C. Raghavan and N. Sudhakaran for the appellant.

Debabrata Mookerjee and R. N. Sachthey for respondent No. I.

The Judgment of the Court was delivered by

SARKARIA, J. This appeal by special leave is directed against an order. dated July 1, 1975, of the High Court of Kerala, dismissing

I _ ...

• •

the Criminal Revision Petition filed by the appellant. It raises ques- A. tions with regard to the scope and interpretauon, inter alia, of ss. 399

(3) and 484(2) (a) of the Code of Cnmmal Procedure, 1973 (hereinafter referred to as the New Code) . The facts are these :

On February 2, 1971 the Director of Enforcement, New Delhi made a complaint against four accused persons. alleging the commission of offences under s. 120-B, Penal Code and s. 5(1) (aa) and B- 5(1) (c) of the Foreign Exchange Regulation Act, 1947 (for short, called the Acl) in the Court of the District Magistrate, Ernakulam.

The appellant herein was accused No. 2 in that complaint.

By an application he raised two objections to the maintainability of the complaint and prayed for its dismissal. First, the opportunity as required under the proviso to s. 23 (3) of the Act was not given to the accused c for showing that he had permission from the Reserve Bank of India for doing the alleged acts.

Second, that the complainant did not comply with the conditions in the proviso to s. 23D ( 1) of the Act, in as much as there was on additional material before him to come to the conclusion that the penalty which he is empowered to impose under s. 23, would not be adequate and that consequently, it was necessary to file a complaint in Court.

By an order dated September 5, 1973, the trial court dismissed the application holding inter alia "that the points raised here will be considered after recording the evidence".

On the same day, against this order dated September 5, 1973, accused No. 2 (P. Philip) filed Cr. Revision Petition No. 27 of 1973 under s. 435 of the Code of Criminal Procedure, 1898 (hereinafter called the Old Code) before E the Sessions Judge, Ernakulam, who dismissed the same by an order dated August 6, 1974.

Aggrieved by the order of the Sessions Judge, P. Philip preferred Cr. Revision Petition No. 393 of 1974 to the High Court.

This Revision was heard by a Division Bench along with two other Revisions (Cr. Rev. Petns. Nos. 409 and 411 of 1974) and dismissed, without going ino the merits, on the ground that it was not maintainable in view of s. 399(3) of the New Code.

Mr.

Raghavan, learned Counsel for the appellant contends that the order under appeal is mainfestly erroneous because at the time when the revision petition was filed before the Sessions Judge, the old Code was in force, and in view of s. 484 of the New Code, it had to be disposed of in accordance with the old Code.

As against this, Mr. D. Mukherji submits that the word "application" in s. 484(2) (a) of the Code of 1973 is a word of limited import.

According to the Counsel only those applications which could be finally disposed of by the Sessions Judge would be covered by this word.

Sinee the revision application, in the instant case-proceeds the argument-was one for reference to the High Court under s. 438 of the Code of 1878, and could not be finally disposed of by the Sessions Judge at his level, it would not be an "application" within the contemflation of s. 484(2) (a) of the Code of 1973. It is pointed out that procedural rights are not vested rights, that whereas a right of

SUPREME COURT REPORTS

[1976] 3 S.C.R.

A a_Ppeal is a s".bstantive right, the procedural facility to move in revision does nt mvolve s.uch a right. On these premises it is maintained that the savmg clause m s. 484 should be very strictly construed with the. esult tht the Code of. Criminal Procedure, 1973 will goven all rev1S1ons which were pendmg on Apnl 1, 1974 when it came into force.

We are unable to accept the interpretation of s. 484(2) (a) of the new Code suggested by the learned Counsel for the respondents. The language of this provision is clear. Hs material part runs as under.

"(1) The Code of Cr. Procedure 1898 (V of 1898) is hereby repealed.

(2) Notwithstanding such repeal :-

(a) If, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of contained, held or made, as the case may be, in accor~ dance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898) as in force immediately before such commencement. ....... as if this Code has not come into fore . ....... "

It will be seen that the word "application" in the saving provision contained in clause (a) of sub-section (2) of s. 484 immediately follows the term "appeal". It therefore takes some colour from the collocation of words in which it occurs. It is synonymous with the term "petition" which means a written statement of material facts, r.:questlng the court to grant the relief or remedy based on those facts.

It is a peculiar mode of seeking redress recognised by law. Thus considered there can be no doubt that the word "application" as used in clause

(a) of s. 484 of the Code of 1973 will take in a revision application made under s. 435 of the old Code.

Such a revision application does not cease to be an "application" within the purview of the afore.- said clause (a) merely because in the event of the application being allowed, the Sessions Judge was required to make a reference to the High Court under s. 438. . Whether such an application is granted or dismissed by the Sessions Judge, he finally disposes of the matter so far as his court is concerned. May be that a purely interlocutory application in a pending action, which by itself is not an independent mode of seeking redress recognised by law is not covered by the word 'application' as used in the aforesaid clause (a). But it is not necessary to express any final opinion on that point because a revision application of the kind before us is not by any recokning, such an interlocutory application.

In the present case, the revision application made by P. Philip was pending before the Sessions Judge when the New Code came into force.

In view of s. 484(2) (a) of the New Code, this revision was required to be disposed of in accordance with the provisions of the old Code.

....

The above being the position, the learned Judges of the High Court were clearly in error in holding that in view of s. 399(3) of the New Code, the appellant was not competent to maintain a revision in the / High Court against the order dated August 6, 1974 of the Sessions Judge . •

For these reasons we allow this appeal, set aside the order of the High Court and send the appellant's revision petition (No. 393 of B

1974) back of it for disposal with utmost expedition in accordance with Jaw.

Appeal allowed and R. P. 393/74 remitted.

P. PHILIP

THE DIRECTOR OF ENFORCEMENT, NEW DELHI & ANOTHER

Petition-Criminal Procedure Code 1973

Sec. 484(2)

section 120

Indian Penal Code

section 435

section 399(3)

section 484

section 484(2)

section 484

section 43

T. C. Raghavan

N. Sudhakaran

Debabrata Mookerjee

R. N. Sachthey

SARKARIA

ss. 399

Code of Cnmmal Procedure, 1973

New Delhi

s. 120

Penal Code

s. 5(1)

Foreign Exchange Regulation Act, 1947

s. 23

Reserve Bank of India

s. 23D

s. 23

September 5, 1973

P. Philip

s. 435

Code of Criminal Procedure, 1898

Sessions Judge, Ernakulam

August 6, 1974

Sessions Judge, P. Philip

s. 399(3)

Raghavan

s. 484

D. Mukherji

s. 484(2)

s. 438

s. 484(2)

s. 484

s. 484(2)

Code of Criminal Procedure, 1898

s. 484

s. 484

s. 435

s. 438

s. 484(2)

s. 399(3)


STATE OF MADRAS v.

K. N. SHANMUGHA MUDALIAR & ORS. \ March 4, 1976 •

(H. R. KHANNA AND P. K. GOSWAMI, JJ.]

1.And Acquisition Act, 1894--Sections 23 and 24--Quantum of compensation -Madras Estates Abolition Act, 1948-Whether compensation under .Land k Acquisition Act can be claimed if the estate is aboli.shed-/Lnterest on compen- j sation to be allowed, from what date.

The State of Madras acquired land belonging to the respondent landlords.

The Land Acquisition Officer gave his award determining the compensation payable.

On a reference made to the Subordinate Judge certain cvmp..!nsation C was determined. Interest was awarded to the respondents on the compensation amount from 1st December, 1949 because in the opinion of the Subordinate Judge, possession of the land had been taken on that date.

On an appeal, the High Court affirmed the decision of the Subordinate Judge regarding the rate of compensation. The High Court also rejected the r.onten tion of the appellant that the land had vested in the Government ui1der the Madras Estates Abolition Act, 1948, and, therefore, the respondents were not entitled to compensation under the Land Acquisition Act. The High Court found that there was no material on record to sho_w that the possession of the land had been taken prior to the date of the award by the Land Acquisition Officer. Interest was accordingly directed to run from the date of the award, i.e. Noven1ber~ 1951. ln an appeal by certificate, the appellant contended :

( 1) The land in question vested under the Abolition Act in the State

and the respondents were, therefore, not entitled to compensation ...,• under the Land Acquisition Act. {2) The quantum of compensation awarded by the High Court was excessive.

(3) Interest should have been allowed from 1st December, 1949.

HELD : ( 1) There were two alternative courses open to the State either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act. Although the estate was notified under the Abolition Act, the procedings under that Act were stayed and the matter proceeded under the Land Acquisition Act.

It was not open to the appellant in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to the interest of the respondents.

The High Court rightly rejected the contention of the appellant in this behalf. [538D-E, G-H]

(2) Both the High Court as well as the Subordinate Judge awarded the con1pensation in accordance with the previous decisions which laid down a formula.

No cogent grounds have been shown to us to interfere with the concurrent findings in this respect.

[539B-C]

(3) There is no reason to disagree with the High Court judgment regarding the date on which the interest should run on the amount of compensation.

[539-G]

C!vIL APPELLATE JURISDICTION: Civil Appeal No. 1425 of 1968.

From the Judgment and Decree dated the 5-8-74 of the Madras High Court in Appeal No. 448 of 1960

A. V. Rangam and Miss A. Subhashini for the Appellant.

K. Jayaram and R. Chandresekhar for Respondent No. 1

E:i:-parte for Respondents 2-8.

MADJl, AS STATE v. SHANMUGHA MUDALIAR (Khanna, J.) 53 7

The Judgment of the Court was delivered by A

KHANNA, J. This appeal on certificate is by the State of Madras, now Tamil N adu, against the judgment of Madras High Court affirming on appeal the award of learned Subordinate judge Salem in respect of the amou'nt of compensation payable to the respondents for acquisition of land under the Land Acquisition Act (Act 1 of 1894) (hereinafter referred to as the Act). The High Court, however, B directed that the interest on the amount awarded shall run from November 19, 1951, the date of the award by the Land Acquisition Officer and not from December 1, 1949 as ordered by the Subordinate Judge.

On July 12, 1949 notification under section 4 of the Act was issued for the acquisition of 19 acres 45 cents of dry land situated in c Alegapuram Mitta for the Salem Fair Lands Co-operative Society Ltd. on December 19, 1950. Alegapuram Mitta was notified under the Madras Estates Abolition Act (Act 26 of 1948) (hereinafter referred to as the Abolition Act). A writ petition was filed in the High Court to challenge that notification.

Further proceedings in pursuance of the notification were stayed by the High Court by order dated January

1. 1951.

The Society for which acquisition was being made deposit- D cd in the meantime the probable cost of the land on September 13,

1950.

On November 19, 1951 the Land Acquisition Officer announced his award.

The respondents, it may be stated, were the Mclevaramdars (landholders) of the land in question.

Kudiwaramdars (cultivators) were also, besides the respondents, parties to the proceedings before the E Land Acquisition Officer.

The Land Acquisition Officer by his award dated November 19, 1951 awarded compensation to the cultivators at the rate of Rs. 1 ,500 per acre for part of the land near the road and at the rate of Rs. 1,300 per acre for the rest of the land.

Rs. 520, 11 As, 1 P the capitalised value of the net rental income was held to be the amount payable to the respondents.

The Kudiwaramdars were content with the compensation awarded to them, but the respondents F who were, as already mentioned above, Melavaramdars asked for a reference to conrt under section 18 of the Act for claiming enhanced compensation. According to the respondents, they were entitled to one-third of the value of the totality of the interest in the land.

According further to the respondents, compensation for the total land should be awarded at the rate of Rs. 3,000 per acre -Learned Subordinate Judge held that the respondents were entitled to G 50 percent of the compensation awarded in respect of the Melawaram interest in the land.

The Subordinate Judge in this context relied upon an earlier decision of the Madras High Court wherein it had been held that the rights of Melavaramdars were not confined only to rent from land a>,1d that they had other recognised rights and were entitled to compensation for those rights. The respondents were thus held entitled to compensation for their Melavaramdar interest at the rate H of Rs. 750 per acre in respect of land near the road and Rs. 650 per acre in respect of the remaining land.

Interest was awarded to the respondents on the compensation amount from Decemlxr 1, 1949 2-608SCl/76

SUPREME COURT REPORTS

[1976] 3 S.C.R.

A because, in the opinion of the Subordinate Judge, possession of the land had been taken from that date.

On appeal the High Court affirmed the decision of the Subordinate J uuge regarding the rate of compensation.

The contention advanced on behalf of the appellant that as the land had vested in the Government under the Abolition Act, the respondents were not entitled to compensation under the Land Acquisition Act, was rejected. It was observed that in the land acquisition proceedings the Government was estopped from denying the absence of any interest in t!he claimants whom the Government had made parties to the proceedings. Regarding the date from which interest on the amount or compensation should accrue, the High Court found that there was no material on the record to show that possession of the land had been taken prior to the date of the award by the Land Acquisition Officer.

Interest was accordingly directed to rnn from the date of the award.

In appeal before us Mr. Rangam on behalf of the appellant-state has urged that as the land in question has vested under the Abolition Act in the State, the respondents are not entitled to compensation under the Land Acquisition Act. We find it difficult to accede to this submission, for we are of the opinion that in case the State wanted to take over the land under the Abolition Act it should not have proceeded to acquire the interest of the respondents in the land in dispute under the Land Acquisition Act.

There were two alternative courses open to the State, either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act.

Although the estate was notified under the Abolition Act, the proceedings under that Act'were stayed and the matter proceeded under the Land Acquisition Act.

As the proceedings which were continued were under the Land Acquisition Act the compensation payable had also to be paid in accordance with the provisions of that Act. The reference which was made by the Land Acquisition Officer to the Subordinate Judge under section 18 of the Land Acquisition Act was with respect to the quantum of compensation payable to the respondents because the respondents had felt dissatisfied with the amount awarded to them as compensation by the said officer.

The underlying assumption of those proceedings was that the respondents had an interest in the land. If it was the case of the appellant that the respondents had been divested of their interest in the land and the same had vested in the appellant- State, the appellant should have taken appropriate steps to make such a claim in accordance with law.

No such claim seems to have been made.

The High Court expressly left open the question of the claim of the State Government to the amount of compensation deposited on the score that Melwaramdar respondents were not entitled to it by reason of having lost all their interest in the land at the relevant point of time.

We agree with the High Court that it was not open to the appellant-State in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to the interest of the respondents.

There is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the

, ..

MADR, AS STATE V, SHANMUGHA MUDALIAR (Khanna, J.) 53 9

fespondents in accordance with the provisions of the Land Acquisition Act.

This question appears to have been agitated for the first time / only in the appeal before the High Court.

The High Court rejected the contention in this behalf.

We find no cogent ground to take a different view.

As regards the quantum of compensation, the. High Court has referred to the previous decisions which show that the formula generally adopted is to pay one-third of the total compensation to Melavaramdars and two-thirds of the compensation to Kudiwaramdars.

In accordance with that formula, the respondents would be entitled to one-half of the compensation payable to Kudiwaramdars.

Both the Subordinate Judge and the High Court awarded compensation in accordance with this formula.

No cogent ground has been shown to us as to why we should interfere with the concurrent finding in this respect.

We also find no reason to disagree with the High Court regarding the date from which interest should run on the amount or

~ compensation.

The appeal fails and is dismissed with costs.

~ ;!:'.H.P .

Appeal dismined.

STATE OF MADRAS

K. N. SHANMUGHA MUDALIAR & ORS

March 4, 1976

H. R. KHANNA

P. K. GOSWAMI, JJ.

And Acquisition Act, 1894

Sections 23 and 24

Land k Acquisition Act

1st December, 1949

Madras Estates Abolition Act, 1948

A. V. Rangam

A. Subhashini

K. Jayaram

R. Chandresekhar

MADJl, AS STATE

SHANMUGHA MUDALIAR

A

KHANNA

December 1, 1949

July 12, 1949

section 4

January

1. 1951

September 13,

1950

Kudiwaramdars

section 18

Madras High Court

section 18

Melwaramdar

STATE

SHANMUGHA MUDALIAR (Khanna, J.) 53 9

Melavaramdars

Kudiwaramdars


54 0

REGIONAL MANAGER & ANR.

PAWAN KUMAR DUBEY

March 8, 1976

[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J

c..:onstituri0n of India, 1950, Art. 16 and 311(2), when applicable.

Civil cri, ant-Reversion of-Order apparently innocuous when realty p1111iti: c attracting Art. 16 and 311(2).

The respondent was reverted fro1n the higher post in which he was officiating, to his substantive post, by an order which stated that he was 'not fit yet' tor tfc higher post.

His juniors continued to officiate in the higher post.

Till some time before the order of reversion, the respondent ¢.'as praised by his superior officers, but, during a period of about six months before the reversion, there was a spurt of warnings, complaints, and adverse remarks, alleging disrespect, disobedience to orders, and that he cast aspersions on h\s superior -I officer.

The respondent asked for particulars to meet the allegation"I, but they \ v•cre not given to him.

His representation against the last adverse entry \Vas

p-nding when the reversion order was passed.

He challenged the order and the High Court, following State of U.P. v. Sugliar Singh [1974] 2 S.C.R. 335, quashed the order, holding that the reversion ¥/as a punishment in the light of the circumstances preceding the order, from the terms of the order, and it5 e:ffect on the respondent's future--'"-and that there \\las a \'iolation of 1-ules of " natural justice.

Jn appeal to this Court by special leave, the appellant contended that the I-[igh C'ourt misunderstood Sughar Sinr:ll's case. ••

Dismissing the appeal, HELD : ( 1) As the reversion order v, ras punitive and passed contrary to the rules of natural justice embodied in Art. 311(2), it must be quashed. The authorities are, however, free to take action, either in accordance with applicable """" ruies for a comparative assessment of the merits of the respondent and others ( \vho n1ay be eligible, or to take disciplinary proceedings. [550A-B]

(a) In Stighar Singh's case, th.is Court was only following the law on Art. 311 (2) as laid down repeatedly.

In that case also the reversion of Sughar Singh was apparently not punitive, but, since it could not be explained except as a result of an adverse entry made two years earlier, it Wa5 held to be by v.'ay of punishment. On this view it was not necessary to con5ider \Vhether there was a violation of Art. 16, but this Court held that thrc was.

What \.\.'eighed with this Court was not only that there was a sufficient element of punishment in reverting him so that Art. 311 (2) had to be complied \vith, but that there was also enough of imprOpriety and unreasonableness in the action taken solely for a very stale reason which had beco1ne logically disconnected aEd extraneous, to make out a case of 'malice in law' if J1ot 'n1alice in fact'~

[545H-546F]

(h) Whether an apparently innocuous order is punitive or aniount• to unjustifiable discriminatory action, violating either Art. 311 or Art. 16 depends - on the facts of the case.

[549E]

(c) This Court has. in Sltan1sher Singh v. State of Punjab [19751 1 S.C.R. 814 laid down authoritatively the conditions necessary in such cases for the- <ippiicability of Art. 311 (2) after considering all the previous cases and there

is no scope for any misapprehensim1 of the law. [544C1

(d) As regards Art. 16, before it is held to have been violacd,, there must he discrimination between one Government servant and another, sun1larly placed. \Vhich cannot be reasonably explained except on the basis of 'malice in law~ or 'malice in fact'.

But, the person wlicr alleges such rrialice in law must

5<tisfactl?rily _establish it on proved or admitted facts as in State of My.\orc v.

R.ulkarn1 (A.IR 1972 SC 2170).

When the alle 0ations are of '1nalice in facf 'vhich are disputed and require a detailed adductin of evidence or exarni•ation of witesses, the our.t \Vil leaye the party aggrieved to an ordinary civil uit J and \Vill not exercise its d1scret1onary power under Art. 226.

Reversion of an ?fficer as a _result of. administrative exigencies, without any suggestion of malice t. in la"". or 1n fact, is unaffected by Sughar Singh's case, and is not vitiated even if some Government servants, junior to hin1 have not been reverted.

"' I

[547B-D, F-G] '

( e) The facts of the present case are similar to those of Suf:har Sjngh's case and the High Court was right in holding that there was a violation of the principles of natural justice embodied in Art. 311 (2). [548F-Gl There were no administrative reasons for the respondeilt's reversion. lf there had beer. anything really serious against him, proceedings under Art. 311 (2) <>hould have been instituted. The sudden reversion for the reason given in the order amounts to unjustified stigma which could not be said to be devoid .o[ the element of punishment. [5480-H, 549D--El

(f) Jf he was really unfit as compared with his Juniors there could have been a fair comparison with them at a time when such assessment is called for under the rules (rules should be made if there are none) and on such a con1paratrve assessment of merits, the juniors could have been preferred ensuring that there \Vas no violation of Art. 16. Dealings of superior ot1icers with their subordinates in Government must be shown to be based on fair play and reason.

But it is not necessary to invoke the aid of Art. 16 to quash the order. [549

C-D, E-F, 550B]

(2) Even if the High Court should not have interfered, it is not a fit case for interference by this Court under Art. 136, as it is still open to .the authorities to proceed in a just and legal way against fhe respondent if necessary.

[549F-HJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1844/1975. (Appeal by special leave from the judgment and order dated the 17-7-1974 of the Allahabad High Court in special appeal No. I 21 of E 1974).

R. N. Trivedi and 0. P. Rana, for the appellants.

S. C. Aggarwal and V. J. Francis, for the respondent.

The Judgment of the Court was delivered by

BEG, J.

This appeal by special leave granted t~ the Regional Manager of U.P. State Road Transport Corporation, Allahabad, challenges the findings of a learned single Judge, affirmed by a Division Bench of the Allahabad High Court holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a Senior Station Jncharge, in which he was officiating, to his substantive post of a Junior Station Incharge by means of an Order dated 20-2-1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January, 1973.

His juniors, it was found, were still officiating in posts of Senior Station Incharge.

The respondent's chances of promotion were said to be adversely affected by the reason given for the reversion in the impugned order : that the respondent was "not fit yet" for the higher post.

The learned single Judge and the Division Bench in the Allahabad High Court were referred to several decisions of this Court mentioned ; by the Division Bench. These were : State of Bombay v, F. A.

A Abraham( 1); Champaklal Chimanlal Shah v.

Union of India('); Divisional Personnel Officer v. Raghavendrachar("); and State of U.P. & Ors. v. Sughar Singh(').

The Allahabad High Court had followed what it considered to be \ the ratio decidendi of Sughar Singh's case (supra), the last case of this , Court available at the time.

Special leave to appeal was sought in the B case before us on the ground that Sughar Singh's case (supra) had been misunderstood by the High Court and required some elucidation by this Court.

Special leave was granted on condition that, in any

I<\ event, the costs of the respondent will be borne by the appellants. The question to be determined was assumed to be one of law only.

The appeal was, therefore, to be heard on the special leave paper book with such additional documents from the record of the case as the C parties may choose to file.

We find that, although a number of documents were filed, neither side has chosen to file a copy of the order impugned which has been interpreted by the single Judge as well as by the Division Bench of the -1.

Allahabad High Court as one amounting to award of a punishment not merely in the light of the circumstances preceding the order but also D from the terms of the order itself and its effect upon the respondent's future.

The question, therefore, arises whether we really have before

us any point of law of such a nature as to justify interference in ex- • ercise of the exceptional powers of this Court under article 136 of the Con.stitution,

Even though we have come to the conclnsion that the question before us is substantially one of fact, we would like to explain a little the law applicable to such cases in view of the submissiola that Sughar Singh's case (supra) had led to some misunderstanding of it. Not much clarification seems necessary so far as conditions for the application of Article 311 (2) are concerned as this question has been considered . and decided by this Court in a number of cases including the recent decision by a bench of seven Judges of this Court in Shamsher Singh & Anr. v. State of Punjab C).

It was pointed out in that case (at p. 937) :

"No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amonnt to a punishment on G the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or, inefficiency, or, for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it may, in a given case, amount to removal from service within the meaning of Article 311 (2) of the Constitution.'' H

(1) !19621 (2) Suppl. S.C.R. 92.

(2) [1964](5) S.C.R. 190.

(3) [19661 (3) S.C.R. 106.

(41 [197412 S.C.R. 335.

(5) [1975] (I) S.C.R. 314.

I \

;"I I

Shamsher Singh's case (supra) related to an order of termination A of services of a probationer which, on the face of it, appeared to be innocuous.

Nevertheless, this Court, alter examining the facts and circumstances constituting the background of the order and its consequences, held it to be substantially one of punishment and set it aside for a violation of Article 311 (2) of the Constitution.

It was explained there (at p. 837) :

"Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.

In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other reason not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged.

No punishment is involved in this.

The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry.

But, in these cases, the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a dhance to make good in other walks of life without a stigma at the time of termination of probation.

If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and, if his services are terminated without following the provivisions of Article 311 (2), he can claim protection. In Gopi Kishore Prasad v. Union of India A.LR. 1960 S.C., 689, it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment.

Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer".

It was also observed in Shamsher Singh's case (supra) (at p. 838)

"The fact of holding an inquiry is not always conclusive.

What is decisive is whether the order is really by way o[ punishment. (Sec : State of Orissa v.

Ramnarain Das

(1961) 1 S.C.R. 606. If there is an enquiry, the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance (see : Madan Gopal v. State of Punjab (1963) 3 S.C.R. 716).

In R. C. Lacy v. State of Bihar & Ors., (Civil Appeal No.

590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry into the condnct of the probationer in the circumstances of the case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken.

A probationer whose terms of service provided that it could be terminated without any notice and without any .

A cause being assigned could not claim the protection of Article 311(2). [See: R. C. Banerjee v. Union of India (1964)

2 S.C.R. 135].

A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311 [see : Champaklal C. Shah v. Union of India (1964 (5) S.C.R.

190].

On the other hand, a statement in the order of tenni- B nation that the temporary servant is undesirable has been held to import an element of punishment [See : J agdish Mitter v. Union of India, A.LR. 1964 S.C. 449]'".

We think that the principles in valved in applying Article 311 t 2) having been sufficiently explained in Shamsher Singh's case (supra) it should no longer be possible to urge that Sughar Singh's case (supra) c could give rise to some misapprehension of the law.

Indeed, we do not think that the principles of law declared and applied so often have really changed.

But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometirues that there is some conflict between different decisions of this Court.

Even where there appears to be some conflict, it would, we think, vanish when the mtio D decidendi of each case is correctly understood.

It is the rule deducible from the application of law to the. facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be siruilar.

One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.

We have examined the record of the case of Sughar Singh (supra).

Our judgment in the case perhaps does not fully bring out the factual background on which the decision of that case was based.

In that case, the Government servant concerned had been suspected of making an alteration in his own service record.

It was not shown how he coulo possibly have had access to his service record as he was not in charge of the record.

One of the alterations made meant an increase in his age so that he would, according to the altered state of the record, have had to retire earlier.

Sughar Singh complained, when asked to show canse against the alleged tampering, that it must have been manipulated by his enemies interested in injuring him.

It could not be detennined who was responsible for the alterations.

Nevertheless, the following adverse entry was made on Sughar Singh's record :

"1966-Is suspected to have got entries of date of birth and educational qualifications altered on the authority of a fictitious certificate which had to be corrected later on.

Severely warned".

. Two years later, as a result of this entry, based expressly on bare suspicion, without further inquiry into the question whether Sughar Singh could be responsible for tampering with the record, a reversion order, innocuous on the face of it, had been made on 12th August 1968.

The effect of the reversion order was that Sughar Singh who,

\ . ,;.

apart from this entry, had an excellent record, was reverted from a A post in which he had been officiating from 16th March, 1961, until the reversion order dated 12th August, 1968. It was shown that / about 200 officers, junior to him, were still officiating in the cadre . from which Sughar Singh had been reverted to his substantive post of • Head Co,1stable. No administrative need or exigency could be shown to justify the reversion order. All officers, including Sughar Singh, who had been officiating, had been selected after special training for B the higher cadre.

The question, naturally arose : Why was S!ighar

;"I Singh selected for this discriminatory treatment?

A single Judge of the Allahabad High Court held, acting on the principl\' that a mere reversion, from a post to which the incumbent had no right, did not amount to punishment within the meaning of Article 311(2) so that Sughar Singh had no remedy.

He only took C the form of the action into account.

No further probe was considered necessary by the learned Judge.

When the case came before a Division Bench, in special appeal, one of the learned Judges agreed with ) the learned single Judge who had dismissed Sughar Singh's petition merely on the ground that Sughar Singh had no right to the post without considering the impact of the surrounding facts or the background of the order. The other learned Judge, however, carefully examined D the background of Sughar Singh and the reversion order as revealed • by facts on record.

He pointed out that the averments of Sughar Singh, that he had a splendid record, apart from the adverse entry in question, and that there was no inefficiency on his part, were not con-

'11 troverted in the counter-affidavit filed.

This learned Judge found the reversion order against Sughar Singh to be punitive.

He, however, added that, even if the order could not be held to be punitive, it was E certainly violative of the guarantee contained in Article 16 (I) of the y- Constitution.

When the matter was heard by Verma, C.J., on a reference occasioned by the difference of opinion between the two learned Judges on the Div isiou Bench, it was again argued that both Articles 16 ( 1) and 311 (2) had been infringed.

The learned Chief Justice did not find sufficient material to uphold a violation of Article 16.

But, after taking into account the admission of the Counsel appearing for the State that the sndden reversion of Sughar Singh could not at all be explained or accounted for unless it couJd be linked with the adverse entry, the learned Chief Justice held the action against Sughar Singh to be punitive and violative of Article 311 (2) of the Constitution.

Sughar Singh had been held to have been punished for nothing beyond what had taken place two years before the reversion order so that it could not have been justly or reasonably connected with the delayed action based upon it.

This Court could have dismissed the appeal by special leave solely on the ground that no question of law arose on the finding of fact, also upheld by this Court that Sugh•ar Singh was punished, in substance, so that Article 311 (2) was attracted.

This Court's judgment in Sughar Singh's case (supra) shows that it was only following the law on Article 311 (2) of the Constitution as laid down repeatedly earlier by this Court. It specifically referred to

the following cases : Purshotam. Lal Dhingra v.

The Unioll of India('); State of Punjab & Anr. v. Sukh Raj Bahadur('); State of Onssa v. Ram Narayan Das( 3); B. C. Lacy v.

State of Bihar('); Jagdish Mitter v. Union of India('); A. G. Benjamin v.

Union of \ India("); Ram Gopal Chaturvedi v. State of Madhya Pradesh('); Union of India v. Gajendra Singh('); Divisional Personnel Officer v. .~· Raghavendrachar (supra); Union of India v.

Jaswan Ram ("); Madhav v. State of Mysore('"'); State of Bombay v. Abraham (supra),.

In Sughar Singh' s case, this Court summarised the propositions of Jaw deducible from the cases mentioned above; and, while considering the

I"\ applicability of some of the propositions of law to the facts of the case, it did observe that, on the face of it, the action against Sughar Singh did not appear to be punitive.

Nevertheless, on a total consideration of all the facts, including 'the admission in the High Court before Verma, C.J., by the Standing Counsel appearing on behalf of the State, that the reversion order could not be explained except as a result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the State of Bihar & Ors. v.

Shiva Shukshuk J Mishra(''), where this Court had affirmed the opinion of the High \ Court, on facts, that the "reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the plaintiff and by way of punishment to him".

On this view of the case, it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary • to the provisions of Article 16 also.

Nevertheless, this Court held there, alternatively, after referring to State of Mysore v. P. P.

Kulkarni ( "), that the action taken against Sughar singh also resulted in a '1' violation of the provisions of Articles 14 and 16 of the Constitution.

It seems to us to be clear, after examining the record of Sughar Singh'.>

case (supra), that what weighed with this Court was not only that there was a sufficient "element of punishment" in reverting Sughar Singh "oi for a suppo.sed wrong done, from which the order of reversion could I not be divorced, so that Article 311(2) had to be complied with, but, there was also enough of an impropriety and unreasonableness in the action taken against Sughar Singh, solely for a very stale reason, which had become logically quite disconnected, to make out a case of "malice in law" even if it was not a case of "malice in fact". If an authority acts on what are justly and logically viewed, extraneous grounds, it would be such a ase. All these aspects of the case were kept in view by this Court when it recorded the conclusion :

"In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if it were not so, we have no doubt that the order would be

(l) [19581 S.C.R. 828.

(2) [1968] (3) S.C.R. 23.

(3) [1961](1) S.C.R. 606.

(4) C.A. No. 590of1962decided on 23-10-C>3.

(5) A.LR. 1964 S.C. 449.

(6) C.A. No. 1341 of 1966 decided 0n 13-12-66.

(7) [19701(1) S.C.R. 472.

(8) [1972j(3) S.C.R. 660.

(9) A.LR. !958 S.C. 905. (10) A.l.R. 1962 S.C. 811. (JI) (1971](2) S.C.R.191. (12} A.l.R.1972 S. C. 2170.

I •

! ...

liable to be quashed on the ground of contravention of

A'> Articles 14 and 16 of the Constitution".

We do not think that Sughar Singh's case, in any way, conflicts with what has been laid down by this Court previously on Article 311 (2) of the Constitution or Article 16 of the Constitution.

We would, however, like to emphasize that, before Article 16 is held to have been violated by some action there must be a clear demonstra- B: ti on of discrimination between one Government servant and another. similarly placed, which cannot be reasonably explained except on an assumption or demonstration of '"malice in law" or "malice in fact".

As we have explained, acting on a legally extraneous or obviously' misconceived ground of action would be a case of "malice in law".

Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, arc unaffected by C Sughar Singh's case (supra).

They arc not vitiated merely bccaJsc son1e other Government servants juniors in the substaO.tivc rank; have not been reverted.

This Court has held in S. C. Anand v. Union of India('}, that no question of applying Articles 14 or 16 could arise where a termination of service takes place in terms of a contract of service.

Again, in n' Champaklal Chiman Lal Shah (supra), this Court held that the motive behind an order of termination of service, in accordance with the terms of a contract, would not be really relevant even if an enquiry had been held to decide whether proceedings under Article 311 (2) shouldi be instituted or the services of a Govenunent servant terminated in terms of his contract.

Champaklal Chimanlal Shah's case (supra I w'1S noi one in which any question of mala tides arose.

Protection of E Article 16 was claimed there on the ground that Rule 5, prov[ding for termination of services of temporary servants, was itself hit by Article 16.

Such a contention was repelled.

On the other hand, Kulkami's case (supra), relied upon in Sughar Singh's case (supra), was one in which "n1isuse of power" or detourne111ent de puvoir'' (as it i:-; called in French Administrative law), had been proved.

Another term for >Uch use of power for an improper object is "malice in law".

We repeat that, before any such case of ''.malice _in law". can be accepted, the person who alleges it must sat1sfactonly establish 1t 011 proved or admitted facts as it was in Ku/karni's case (supr~). Whe_re the allegations are of malice in fact, which arc generally senously disputed, and the case cannot be satisfactorily decide~ without a detaild G adduction of evidence or cross-examination of witnesses, Courts will leave the party aggrieved to an ordinary civil suit. This rule, relating to exercise of discretionary powers under Article 226, is also well settled.

We have tried to gather, from such materials on the record of the case before us as have been made available to us by the parties, the "spirit and substance", to use the expressions employed by this Court ll in Champaklal' s case (supra) , of the action taken against the contest,

~----- - -~--~

(1) A.J.R. 1953 S.C. 250.

ing re?pondent.

We have examined the background of the order of

revrsm~. W. c find that, on the one hand, there is fulsome praise, in tes!Imomals given to the respondent by his superior officers for meritorious work done by im. On the other hand, we find tht, precedmg the order of reversmn, passed on 20th February, 1973, against the respondent, there 1s a spurt of warnings and very vague complaints and adverse remarks of 30th September, 1972, and 4th October, l 972, 21st October, 1_972, and 25th Janua'.y, 1973, presumaly all by a particular supenor officer, allegrng disrespect shown, disobedience to •Orders given, and aspersions said to have heen cast by the respondent against the conduct of the superior officer.

The respondent was warned by this superior officer, an Assistant General Manager, by a letter dated the 4th October, 1972. T'here is also a copy of an order on a complaint against the respondent that the respondent had inisused the services of a Chowkidar.

The detailed order of 2nd June, 1970, shows that, although, the complaint was dismissed by the General Manager, yet, he had admonished the respondent and had advised him to conduct himself more respectfully towards superior officers and to be "sweet tempered".

There were some old adverse entries also against the respondent.

But, they must be deemed to have been washed off by orders of his promotion, on an "ad hoc" or officiating basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as required by the rules. It appears that the respondent had asked for particulars to meet the vague allegations of insubordinatiou and disobedience which had found their way into his service record for 1972 to 1973. It bas not been shown that the respondent was supplied with these particulars.

He professed ignorance of occasions on which be bad been disrespectful or of existence of any orders which had been disobeyed by him.

These particulars could have been easily supplied to him if the allegations against him were justified The respondent's representation against the last adverse entry, of the kind indicated above, made on 25th January, 1973, was pending when the reversion order of 20th February, 1973, was passed.

His allegations that his juniors are still holding the posts in the cadre in which he was officiating and that there are no administrative reasons for his reversion are not controverted. In these respects, the facts of the

ase are similar to those of Sughar Singh's case (supra).

Jn addition. as the High Court points out, the express condemnation of the respondent as "not fit" for the higher post, in which bis juniors were allowed to officiate, categorises him as inferior to his juniors even if it \Vas qualifie.d by the addition of the word "yet".

The only possible justification which could be offered for this discriminatory treatment were the sudden adverse entries of 1972-73 against the respondent which were quite vague.

If there bad been anything really serious against the respondent, proceedings under Article 311 (2) of the Constitution should have been instituted.

Indeed, they can still be taken if there are substantial grounds against the respondent. qn the ther hand, if te ction against him is due merely to a feclmg of pique or anger with him on ihe part of his superior officers, to which the respondent's tactlessness

may have contributed, it did not deserve anything more than the warnings and the adverse entry.

Indeed, even the bona fides of the last adverse entry becomes doubtful when we find that the respondent was not, despite his requests, given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based.

To allege such misconduct against him and then to stigmatise the respondent as "not fit" for working in the higher post could appear, on the facts and circumstances of the particular case, to be more vindictive than just and fair.

It may mar or delay his chances of promotion in future.

We, however, refrain from commenting further on what may or may not have been the real cause of the respondent's reversion. If the respondent is really unfit or inefficient, as compared with his juniors, there is no reason why, on a comparative assessment of merits, at a time when such assessment may be called for under the rules (there should be rules on the subject if there are none so far) , his juniors in service should not be preferred over him.

A decision given after fair comparisons with records of others officiating in the fame cadre would have ensured that no violation of Article 16 took place.

The sudden reversion of the petitioner, for the reason given in the reversion order, could be held to amount to an unjustified stigma which could not be said to be "devoid of an element of punishment''.

As we have indicated, there is no magic formula or uniform set of facts which could convert even an apparently colourless or innocuous order into punitive or unjustifiably discriminatory action.

It is, however, well established that even an apparently inoffensive order may fail to pass tests imposed by Articles 16 and 311 of the Constitution.

Dealings of superior officers with their subordinates in Government service in a Welfare State must be shown to be based on fair-play and reason when facts arc actually proved which indicate F that these requirements may be Jacking.

Even if the case before us could be one in which the High Court could have refrained from interfering, we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Constitution.

The High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules of natural justice. It did not give the respondent any other or consequential relief.

And, as we have already indicated, it is still open for the authorities to proceed in a just and legal way against the respondent if there is really a substantial case against him deserving punitive action .

As we are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of

the respondent and others who may be eligible to officiate in the post of a Senior Station lncharge, or, to take disciplinary proceedings, it considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary lo ruics of natural justice embodied in Article 311 (2). It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a tinding.

This, we think, was also the position in Sughar Si11gh's casr (supra).

This appeal is dismissed with costs.

V.P.S.

A ppeai disn1issed.

0

REGIONAL MANAGER & ANR

PAWAN KUMAR DUBEY

March 8, 1976

A. N. RAY, C.J.

M. H. BEG

JASWANT SINGH, JJ

Art. 16 and 311(2)

Art. 16 and 311(2)

[1974] 2 S.C.R. 335

Sughar Sinr:ll

Art. 311(2)

Stighar Singh's

Art. 311

Sughar Singh

Art. 16

Art. 311

Art. 311

Art. 16

Art. 311

Art. 16

Art. 226

Suf:har Sjngh

Art. 311

Art. 311

Art. 16

Art. 16

Art. 136

CIVIL APPELLATE JURISDICTION

Allahabad High Court

0. P. Rana

S. C. Aggarwal

V. J. Francis

BEG

Pawan Kumar Dubey

25th January, 1973

article 136

Article 311

Article 311

Shamsher Singh's

Article 311

Article 311

Shamsher Singh

(1961) 1 S.C.R. 606

(1963) 3 S.C.R. 716

Article 311(2)

(1964)

2 S.C.R. 135

Article 311

Article 311

12th August 1968

12th August, 1968

S!ighar

;"I Singh

Article 311(2)

Article 16

Verma

Articles 16

Article 16

Article 311

Sugh•ar Singh

Article 311

Article 311

Article 16

Sughar singh

Articles 14 and 16

Article 311(2)

Articles 14 and 16

Article 311

Article 16

Article 16

C Sughar Singh

Articles 14

Champaklal Chiman Lal Shah

Article 311

Champaklal Chimanlal Shah

Article 16

Article 16

Kulkami

karni

Article 226

Champaklal

4th October, 1972

2nd June, 1970

7th March, 1972

Uttar Pradesh

18th March, 1972

20th February, 1973

Article 311

Article 16

Articles 16 and 311

Article 136

Article 311

Article 16

Sughar Si11gh