C. I. T. BOMBAY

BAR COUNCIL OF MAHARASHTRA

BAR COUNCIL OF INDIA

BAR COUNCIL OF GUJARAT

April 22, 1981

[V. D. TULZAPURKAR AND E.S. VENKATARAMIAH, JJ.]

Income Tax Act, 1961, section 2(15) and 11-Whether the Bar Councils constituted under the Advocates Act, 1961, are bodies intended to advance any object of general public utility falling within section 2( 15) for purposes of section 11 of the Act.

The income derived by the Bar Council of Maharashtra from securities (interest) and other income by way of enrolment fees during the accounting periods relevant to the assessment years 1962-63, 1963-64, 1964-65 was subjected to tax by the Income Tax Officer. Since the Central Government had accorded approval to the assessee for the purpose of section 10(23A) during the jpendency of the appeal before the Tribunal by a notification dated August 5, 1966 with effect from December 28, 1961, the Tribunal held that the assessee Council was entitled to exemption under section 10(23A) in respect of its income by way of enrolment fees. The Tribunal remanded the case oack to the Appellate Assistant Commissioner and directed him to dispose of the case by examining the question as to the purpose for which the securities were held by the assessee Council. It observed that if the said securities were held for educational purpose or for any other charitable purpose then the exemption under section 11 would be admissible to the extent available under the law. The High Court, on a reference made at the instance of the assessee-Council, answered the question : ''Whether on the facts and in the circumstances of the case, the assessee--Council could be taken to be a body intended to advance any object of general public utility falling within section 2(15) for purposes of section 11 of the Act ?" in favour of the assessee and hence the appeals by Revenue after obtaining special leave from the Court.

Dismissing the appeals, the Court

HELD : 1. Having regard to the Preamble of the Advocates Act, 1961 and the nature of the various obligatory functions including the one under clause (d) enjoined upon every State Bar Council under section 6(1) of the Advocates Act, it is elear that the primary or dominant purpose of an institution like the assessee- Council is the advancement of the object of general public utility within the meaning of section 2(15) of the Income Tax Act, 1961 and as such the income from securities held by the assessee--Council would be exempt from any tax liability under section 11 of the Income Tax Act, 1961. [551 E-G]

C.I.T. V. BAR COUNCIL 543

2. If the primary or dominant purpose of a trust or institution was A charitable any other object which by itself might not be charitable but which was merely ancillary or incidental to the primary or dominant purpose would not prevent the trust or institution from being a valid charity. The restrictive words "not involving the carrying on any activity for profit" in section 2(15) of the Income Tax Act, 1961, qualify" object" and not the advancement or accomplishment thereof. In other words, the true meaning of the restrictive words is that when the purpose of a trust or institution was the advancement B of an object of general public utility it was that object of general public utility and not its accomplishment or carrying out which must not involve the carrying on of any activity for profit. Here, admittedly, the State Bar Councils are not indulging in any activity for profit and hence the question of applying the restrictive words in s.2(15) does not arise. [547 C-F, 548 G-H]

Commissioner of Income Tax, Madras v. Andhra Chamber of Commerce, 55 ITR 722; Additional Commissioner of Income Tax, Gujarat v. Surat Art Silk Cloth Manufacturers Association, 121 ITR 2, reiterated.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2115 to 2117of1980.

Appeals by special leave from the judgment and order dated the 8 the August, 1978 of the Bombay High Court in Income Tax Reference No. 142 of 1969.

S. C. Manchanda and A. Subhashini for the Appellant.

V. N. Ganpule and Mrs. Veena Devi Khanna for the Respondent.

V. N. Ganpule for Intervener No. I.

S. C. Patel for Intervener No. 2.

The Judgment of the Court was delivered by

TULZAPURKAR, J. These appeals by special leave raise the question : "whether on the facts and in the circumstances of the case the assessee-Council could be taken to be a body intended to advance any object of general public utility falling within s. 2(15) for purposes of s. 11 of the Income Tax Act, 1961 ?"

The facts giving rise to the aforesaid question may briefly be stated. The respondent assessee-Bar Council of Maharashtrais a body corporate established under the Advocate's Act, 1961

(Act 25 of 1961) which came into force on December 28, 1961.

H During the accounting periods relevant to the assessment years 1962-63, 1963-64 and 1964-65 the assessee derived income from

Hsecurities (interest) and other income by way of enrolment fees particulars whereof, are as follows :

-· Assessment year Interest on securities Other Income

1962-63 Rs. 3,779 Rs. 28,035

1963-64 Rs. 8,629 Rs, 3,04,103

1964-65 Rs. 9,356 Rs. 96,322

The Income Tax Officer subjected to tax the income from both the sources for all the three years. In appeals preferred fo the Appellate Assistant Commissioner it was contended by ihe assessee that its other income by enrolment fees was exempt under s. I 0 (23A) and interest on securities was exempt from tax under s. 11 of the Income Tax Act, 1961.

The Appellate Assistant Commissioner negatived the exemption claimed under s. 10(23A) in the absence. of the Central Government's notification according appr9val to the association and with regard to the claim for exemption in respect of the interest on securities he held that it was not established that the securities were held on trust for any charitable purpose. He took the view that the main object of the assessee-Council was to benefit the legal profession (its Members) and, therefore, the object was not one of general public utility. Accordingly he confirmed the assessment orders for the three years.

The matter was carried in further appeal to the Income Tax Appellate Tribunal and since by that time the Central Government had accorded approval to the assessee for the purpose of s. 10. (23A) by a notification dated August 5, 1966 with effect from December 28, 1961, the Tribunal held that the assessee-Council was entitled to exemption under s. I 0(23A) in respect of its income by way of enrolment fees.

In regard to the income by way of interest on the. securities the Tribunal observed that the character of the body holding the securities was not by itself decisive, that safeguarding. the rights, privileges and interest of advocates on its roll 9ould not be said to be an object of general public utility, that the real question to be considered under s. 11 was whether the securities were held for any charitable purpose or .not and the tribunal found that there was no evidence or material on record touching this aspect.

It, therefore, remanded the case back to the Appellate Assistant.

Commissioner and directed him to dispose of the case by exam_ining the question as to the purpose for which the securities were held by

the assessee-Council. It observed that if the said securities were held for educational purpose or for any other charitable purpose then the exemption under s. 11 would be admissible to the extent available under the law; At the instance of the assessee- Council the question set out at the commencement of this judgment was referred to the High Court for its decision under s. 256( I) of the Act. The High Court took the view that having regard to the obligatory functions enjoined upon a State Bar Council under s.6 of the Advocate' s Act the assessee-Council could be regarded as a body constituted for general public utility and that the entire income of the body would be exempt from tax under s.11 of the Income Tax Act, 1961.

In its view the advancement of any object beneficial to the public or a section of the public as distinct from an individual or a group of individuals would be a charitable purpose as defined in s.2 (15) of the Income Tax Act and in this view of the matter the High Court answered the question in the affirmative and against the Revenue. It is this view of the High Court that is being challenged by the Revenue before us in these appeals.

In support of the appeals counsel for the Revenue sought to raise two contentions. First, he urged that the relief claimed under s.11 was ruled out by reason of relief having been obtained by the assessee-Council in respect of its mcome from enrolment fees under s.10 (23A) of the Act. According to him s.10 (23A), while exempting from tax any income of an association or institution established in India having as its object the control, supervision, regulation and encouragement of the profession of law, medicine, accountancy and any other profession as the Central Government may specify, has expressly excluded from exemption such association's or institution's income chargeable under the head "interest on securities" or "Income from house properties" or "any income received in rendering any specific service", etc., and, therefore, what has been expressly excluded from exemption under this provision could not be or was not intended to be exempt under s.11 of the Act. In other words, the assessee-Council's claim for exemption in respect of interest on securities under s.11 was ruled out by reason of s.10(23A) of the Act.

Secondly, counsel contended that on merits the High Court's view that the assessee-Council was a body constituted for advancement of an object of general public utility was erroneous inasmuch as it was a body established principally for the purpose of safeguarding the rights, privileges and interest of the advocates on its roll and since such objective merely served to benefit the members

A of the profession it was no charitable purpose as defined by s.2 (15) for purposes of s.11 qf the Act. In support of this contention counsel placed reliance on some English decisions.

At the out set it may be stated that we were not inclined to permit counsel for the Revenue to urge his first contention as in our view the Revenue must be deemed to have given up the same. We may point out that precisely this very contention was raised by the Revenue before the Tribunal and was negatived by it. The Tribunal on a detailed analysis of the concerned provisions took the view that the two provisions were not mutually exclusive but operated under different circumstances, that s.11 was relatively wider in its scope and ambit, that while s.10 (23A) granted absolute exemption in respect of particular types of income s.11 imposed certain conditions for the exemption but such exemption was available for all sources and there was nothing inherently improbable or inconceivable about the two provisions operating simultaneously and as such the claim for exemption under s. I I was available to the assessee-Council provided it satisfied all the -requirements of that provision. We may point out that there are other allied provisions like for instance sub-s. (23C) in s.l 0 which clearly indicate that the Legislature did not intend to rule out s. I I when exemption was claimable under such specific provisions of s. I 0. It was after negativing the contention in this manner that the Tribunal went on to consider the claim for exemption made by the assessee-Council under s.11 but on merits found that there was no material or evidence on record to show whether or not the securities were held by the assessee-Council for any of charitable purposes and, therefore, it remanded the case. The remand order was never challenged by the Revenue by seeking a reference on the ground that a remand was unnecessary because s.11 was ruled out by reason of exemption having been obtained by the assessee-Council under s.10 (23A) of the Act nor was any such contention raised when reference was sought by the assessee-Council nor when the matter was being argued . in the High Court. In these circumstances it is clear to us that the Revenue acquiesced in the view taken by the Tribunal that the claim for exemption under s.1 I of the Act could not be said to be ruled out by reason of the provisions of s.10 (23A).

We, therefore, proceed to deal with the second contention which was principally argued before us in these appeals.

Under s.11 of the Income Tax Act, 1961, subject to the conditions therein specified, income derived from property held

under trust wholly for charitable or religious purposes to the extent to which such income is applied to such purposes in India is exempt from the tax liability under the Act and s.2 (15) gives an inclusive definition of the expression "charitable purpose" thus :

"Charitable purpose" includes relief of the poor, education,

medical relief and the advancement of any other object of iJ genernl public utility not involving the carrying on any activity for profit.

It may be noticed that whereas any object of general public utility was include:! in the definition of "Charitable purpose" in the 1922 Act, the present definition has inserted the restrictive words "not involving the carrying on of any activity for profit" which qualify or govern the last head of charitable purpose. In Commissioner of lncome Tax, Madras v.

Andhra Chamber of Commerce(1)--a case decided by this Court under the 1922 Act where the restrictive words were absent-this Court laid down that if the primary or dominant purpose of a trust or institution was charitable, any other object which by itself might not be charitable but which was merely ancillary or incidental to the primary or dominant purpose would not prevent the trust or institution from being a valid charity. After the addition of the restrictive words in the definition in the 1961 Act, this Court in Additional Commissioner of Income Tax, Gujarat v. Surat Art Silk Cloth Manufacturers Association(') affirmed that the aforesaid test of primary or dominant purpose of a trust or institution still holds good, that the restrictive words qualify "object" and not the advancement or accomplishment thereof and that the true meaning of the restrictive words was that when the purpose of a trust or institution was the advancement of an object of general public utility it was that object of general puplic utility and not its accomplishment or carrying out which must not involve the carrying on of any activity for profit.

And applying these tests trading bodies like Andlw1 Chamber of Commerce and Surat Art Silk Cloth Manufacturers Association have been held to be institutions constituted with a view to advance an object of general public utility because their primary or dominant purpose was to promote and protect industry, trade and commerce either generally or in certain commodities, even though some benefit through some of their activities did accrue to their members which

(1) 55 ITR 722. (2)

121 ITR 1.

was regarded as incidental and this Court held that the income derived from diverse sources by these institutions (rental income from property in the case of Andhm Chamber of Commerce and income from annual subscriptions collected from its members and commission of a certain per centage of the value of licences for import of foreign yarn and quotas for purchase of indigenous yarn obtained by the assessee from its members in the case of Surat Art Silk Cloth Manufacturers Association was exempt from tax liability under s.11 of the Act. Reliance on English decisions would not be of much avail because the definition of charitable purposes as given in our Act since it embraces 'any other object of general public utility' goes further than the definition of charity to be derived from the English cases. Under English Jaw of charity a trust is charitable only if it is within the spirit and intendment of the Preamble to the Statute of Elizabeth ( 43 Eliz. ch. 4) and alJ objects of general public utility are not necessarily charitable, some may or some may not be, depending upon whether they falJ within the spirit and intendment of the Statute of Elizabeth.

Under our definition every object of general public utility would be charitable subject only to the condition imposed by the restrictive words inserted in the 1961 Act.

It is because of this basic difference between Indian Law and English Law of charity that Lord Wright in Aff India Spinners' Assn. v. CJT(1) utterred a warning against blind adherence to English decisions o.n the subject thus : "The Indian Act gives a clear and succinct definition which must be construed according to its actual language and meaning. English decisions have no binding authority on its construction and though they may sometimes afford help or guidance, cannot relieve the Indian Courts from their responsibility of applying the language of the Act to the particular circumstances that emerge under conditions of Indian life."

Having regard to the aforesaid manner in which the definition of "charitable purpose" given in s.2 (15) has been interpreted by this Court the question that arises for considenation in these appeals is whether the securities, interest from which is sought to be exempted from tax liability, were held by the assessee-Council on trust wholly for a charitable purpose, namely, for the advancement of an object of general public utility?

Admittedly the assessee- Council is not indulging in any activity for profit and hence the aspect of considering the applicability of the restrictive words does not arise and the answer to the question must depend upon the

(1) 12 t.T.R. 482 (PC).

nature or character of the functions and activities which the assessee- Council can undertake under the Advocates Act, 1961 for it is clear that it cannot go beyond what is prescribed by that Act.

' The Preamble of the Advocates Act, 1961 shows that it was enacted with a view to amend and consolidate the law relating to

legal practitioners and to provide for the constitution of Bar Councils B and an All India Bar. Under s.3 of the Act Bar Councils are constituted for various States and the assessee-Council happens to be a State Bar Council for Maharashtra. Section 4 provides that every Bar Council shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property both movable and immovabie and to contract, and may by the name by which it is known sue or be sued. Section 6 is the material provision which sets out both obligatory as well as optional functions of every State Bar Council and so far as is material runs thus :

"6. (I) The functions of a State Bar Council shall be-

(a) to admit persons as advocates on its roll;

(b) to prepare and maintain such roll;

(c) to entertain and determine cases of misconduct against advocates on its roll;

( d) to safeguard the rights, privileges and inte- E rests of .advocates on its roll;

(e) to promote and support law reform;

(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;

(eee) to organise legal aid to the poor in the prescribed manner;

(f) to manage and invest the funds of the Bar Council;

(g) to provide for the election of its members;

(h) to perform all other functions conferred on it by or under this Act;

(i) to do all other things necessary for discharging the aforesaid functions.

(2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of-

(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates;

(b) g1vmg legal aid or advice in accordance with the rules made in this behalf."

Sections 9, 9A and 10 of the Act provide for the constitution of various committees for the purposes mentioned therein.

Section 15 confers power on the Bar Council to make rules to carry out the purposes of this Chapter.

The rest of the provisions of the Act are not material for the purpose of the issue under consideration.

Counsel for the Revenue contended that the primary object or purpose with which the Bar Council of a State is constituted is to benefit the members of the legal profession inasmuch as under s.6 (I)

(d) it is an obligatory function of the State Bar Council to safeguard the rights privileges and interests of the advocates on its roll and that other functions like promotion of law reform, conducting law seminars etc. are incidental objects and the benefit to the public is remote or indirect or incidental and, therefore, the assessee-Council could not be regarded as a body intended to advance the object of general public utility. It is impossible to accept this contention.

It is clear that sub-s. ( 1) lays down the obligatory functions while

sub'.s. (2) indicates what are the optional or discretionary functions that could be undertaken by the State Bar Council and from amongst the obligatory functions it will be wrong to pick out one and say it is the primary or dominant object or purpose.

All the clauses of sub-s. (I) will have to be considered in light of the main objective sought to be achieved as indicated in the Preamble. The functions mentioned in els. (a) and (b) of sub-s. (l), namely, to admit persons as advocates on its roll and to prepare and maintain such roll, are clearly regulatory in character intended to ensure that persons with requisite qualifications who are fit and otherwise proper to be advocates are available for being engaged by the litigating public; the function pnscribed in cl. (c) has been enjoined upon avowedly with the objective of protecting the litigating public from unscrupulous professionals by taking them to task for any misconduct on

their part; it is also one of the obligatory functions of a State Bar Council to promote and support measures for law reform as also to conduct law seminars and organise talks on legal topics by eminent jurists, obviously wifh a view to educate the general public, the function prescribed by cl. (eee) is obviously charitable in nature, the same being to organise legal aid to the poor. Amongst these various obligatory functions one under cl. (d) is to safeguard the rights, privileges and interests of the advocates on its roll and it is difficult to regard it as a primary or dominant function or purpose for which the body is constituted.

Even this function apart from securing speedy discharge of obligations by the litigants to the lawyers ensu'res maintenance of high professional standards and independence of the .

Bar which are necessary in. the performance of their duties to the society. In other words, the domimant purpose of a State Bar Council as reflected by the various obligatory functions is to ensure quality service of competent lawyers. to the litigating public, to spread legal literacy, promote Jaw reforms and provide legal assistance to the poor while the benefit accruing to the lawyermembers is incidental. It is true that sub-s. (2) provides that a State Bar Council may constitute one or more funds for the purpose of giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; but it is an optional or discretionary function to be undertaken by the Council.

Apart from that, admittedly the assessee-Council has not so far constituted any such fund for the purpose specified in the instant case.

As and when such a fund is constituted a question may arise for consideration and the C.rnrt m1y have to decide whether the function so undertaken by a State Bar Council has become the dominant purpose for which that Council is operating. Having regard to the Preamble of the Act and the nature of the various obligatory functions including the one under cl. (d} enjoined upon every State Bar Council under s.6 (l) of the Act, it is clear that the primary or dominant purpose of an institution like the assessee-Council is the advancement of the object of general public utility within the meaning of s.2 (15) of the Act, and as such the income from securities held by the assessee-Council would be exempt from any tax liability under s.11 of the Act.

Having come to the aforesaid conclusion on applying the

langage of our Act to the nature of functions undertaken by a State Bar Council under the Advocates Act 1961 it is truly unnecessary to deal with the English decisions cited during the course of

arguments.

However, we might indicate that in two cases (Royal College of Surgeons case(1) and the General Medical Council's) case(2) on an analysis of the functions undertaken by the two concerned institutions under the Statutes and Charter$ governing them the Court came to the conclusion that the institutions were not constituted for charitable purpose but they were more of professional institutions, the approach being to find out whether the objects satisfied the limited concept of charity within the spirit and intendment of the Statute of Elizabeth. In the other two cases (The

Yorkshire Agricultural Society's case(3) and The Institute of Civil Engineers' case(4) the Court took the view that both the institutions were constituted for charitable purposes entitled the exemption under s.37 (I) (b) of the Income Tax Act, 1918, and the benefits accruning to the members were regarded as incidental.

In the result we are of the opinion that the High Court was right in answering the question in the affirmative and in favour of the assessee. The appeals are accordingly dismissed with no order as to costs.

S.R.

(I) 3 T.C. 173. (2)

13 T.C. 819. (3)

13 T.C. 58. (4)

I 6 T.C. 158.

Appeals dismissed.

I. T. BOMBAY

April 22, 1981

V. D. TULZAPURKAR

E.S. VENKATARAMIAH, JJ.

Income Tax Act, 1961

section 2(15) and 11

section 2( 15)

section 11

Bar Council of Maharashtra

Central Government

section 10(23A)

August 5, 1966

December 28, 1961

section 10(23A)

section 11

section 2(15)

section 11

section 6(1)

Advocates Act

section 2(15)

Income Tax Act, 1961

section 11

Income Tax Act, 1961

section 2(15)

Income Tax Act, 1961

CIVIL APPELLATE JURISDICTION

S. C. Manchanda

A. Subhashini

V. N. Ganpule

Veena Devi Khanna

S. C. Patel

TULZAPURKAR

s. 2(15)

s. 11

Income Tax Act, 1961

Bar Council of Maharashtrais

s. 11

Income Tax Act, 1961

s. 10(23A)

Income Tax Appellate Tribunal

s. 10

s. 11

s. 11

s. 256( I)

Income Tax Act, 1961

India

Income Tax Act, 1961

Andlw1 Chamber of Commerce

Andhm Chamber of Commerce

Elizabeth

Wright

Preamble of the Advocates Act, 1961

Maharashtra

Section 4

Section 6

Sections 9, 9A and 10

Section 15

State Bar Council

Advocates Act

Royal College of Surgeons

Institute of Civil Engineers

Income Tax Act, 1918


BIBI RAHMANI KHATOON & ORS.

HARKOO GOPE & ORS.

April 22, 1981

[D.A. DESAI AND BAHARUL ISLAM, JJ.J

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956- Section 4(1}(c}-Scope of-Section provides that, without prejudice to rights of parties all pending proceedings at any stage before any court in respect of lands

taken up for consolidation shall abate-Plaintiffs" suit for declaration of title decreed-Notification issued when appeal pending before High Court-Effect of notification-Whether judgment and decree of trial court would abate.

Section 4(1)(c) of the the Bihar Consolidation of Holdings and Prevention of Fragmentation AC!, 1956 provides that upon the issue of a notification under section 3(1) of the Act every proceeding pending before any court or authority, whether of the first instance or of appeal shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated. The proviso to the section enacts that such abatement shall be without prejudice to the rights of persons affected to agitate the right in dispute before the appropriate consolidation authorities in accordance with the provisions of the Act. The State Government issued a notification under section 3(1) of the Act.

The plaintiffs' (appellants herein) suit for a declaration of their title and for recovery of possession of agricultural lands bearing khata Nos. 458 and 459 against defendants (respondents herein and three other defendants) was decreed by the trial court. Defandant No. 7 claimed interest in Khata No. 458 only while the other defendants I to 4 claimed interest in Khata No. 459. On appeal the Additional District Judge affirmed the decree of the trial court. Defendant No. 7 died when the first appeal was pending before the District Judge. Neither his legal representatives nor any one claiming under him were substituted nor was an appeal preferred by any of them to the High Court.

!'efore the High Court the defendants I to 4 submitted that the work of consolidation of holdings in respect of the lands in dispute having been taken up by the concerned authorities consequent on the issue ol a notification under section 3 of the Act the appeal would abate by virtue of the provisions of section 4 of the Act. Accepting the contention the High Court held that the appeal abated and set aside the judgment and decree of the courts below in respect of both Khatas 458 and 459.

In appeal to this Court it was contended on behalf of the appellants-plaintiffs that (I) even if the second appeal abated in respect of Khata No. 459 the High Court could not set aside the judgment and decree of the trial court as well as of the first appellate court both of which became final and (2) in any event, on the

death of defendant No. 7 during the pendency of the first appeal, his legal representatives having not been substituted, his appeal abated and none of the present respondents had any interest in the property.

Therefore, the High Court was in error in setting aside the decree of the trial court in so far as that property was concerned.

Dismissing the appeal in part,

The effect of a notification issued under Section 3 of the Act bringing a land in dispute in a civil proceeding under a scheme of consolidation is that the proceedings pending in thecivil court either at the stage of trial, appeal or revision would come to naught. The High Court was right in holding that the second appeal abated in respect of Khata No. 459 and that the judgment and decree of the trial court and the first appellate court stood abated along with those proceedings. [562 G H]

When a scheme of consolidation is undertaken, the Act provides for adjudicating of claims by the authorities under the Act. In order to permit them to pursue adjudication of rival claims unhampered by any proceedings in civil courts a wholesome provision is made that pending proceedings involving claims to land at whatever stage they might be, should abate. To avoid conflict between rival jurisdictions the Act provides that such proceedings should be examined exclusively by the authorities under the Act.

Provision has been made for abatement. of pending proceedings as well. [558 F-G]

The concept of abatement known to civil law is that if a party to a proceeding dies either in the course of trial or appeal or revision and the right to sue survives, the heirs and legal representatives of the deceased party would have to be substituted, failure to do which would result in abatement of the proceedings. If a party to an appeal or revision dies and if the appeal or revision abates it will have no impact on the judgment, decree or order against which the appeal or revision is preferreds. Such judgment, decree or order under appeal or revision would become final. [559 B-D]

But the abatement contemplated by section 4 of the Act is of a different kind. If the concept of abatement as understood in the Code of Civil Procedure is imported into this case, it would do irreparable harm to the parties. For example, if an appeal abates rendering either the judgment of the trial court or the judgment in the first appeal final and binding the consolidation authorities would also be bound by it and the party whose appeal or revision abated would lose the chance of persuading the appellate or revisional authority to accept its case which may result in interfering with or setting aside the judgment etc. ir, appeal. That this could not be the intention of section 4 is manifest from the proviso to clause (c) of section 4. By virtue of the proviso no one would stand to suffer on account of abatement because a special forum is carved out for adjudication of the rights of parties. [5S9 E-G]

fl Ram Adhar Singh v. Ramroop Singh and Ors. [1968] 2 S.C.R. 95, Chattar Singh and Ors. v. Thakur Prasad Singh, A.I.R. 1975 SC 1499, and Satyanarayan.

Prasad and Ors. v. State of Bi har and Anr., A.LR. 1980 SC 2051; referred to.

-"'\

BIBI RAHMANI v. HARKOO GOPE (Desai, J.) 555

The High Court was in error in holding that the judgment and decree in respect of Khata No. 458 also abated. Defendant No. 7 claimed separate, specific and exclusive right in respect of that Khata. On his death his legal representatives having not been substituted, his appeal abated. His legal representatives did not prefer an appeal to the High Court. The appellants' title in respect of Khata 458 therefore became established under the decree of the trial court. The abatement of the second appeal will have no impact on the appellants to Khata No. 458. (562 C-E]

CIVIL APPELLATE JURISDICTION of 1981.

Civil Appeal No. 1359

Appeal by special leave from the judgment and order dated the 18th August, 1979 of the Patna High Court in Second Appeal No. 697 of 1974.

B.P. Singh for the Appellants.

S.K. Mehta for the Respondents.

The Judgment of the Court was delivered by

DESAI, J.

Mst. Bibi Rahmani Khatoon and others filed Title Suit No. 3/70 in the Court of the Additional Subordinate Judge I, Gaya for declaration of their title and for recovery of possession of agricultural !ands admeasurlng 4 acres 29 gunthas comprised in two holdings bearing khata nos. 458 (nakdi) and 459 (Bhouli) in Touzi No. 7535 situated in village Parsain. The defendants in the suit were the present respondents and three others defendants Nos. 5, 6 and 7.

One Brahmadeo was defendant 7 claiming an interest in khata no. 458 on the basis of a sale deed executed on March 3 l, 1959, by one Deonandan Singh who was defendant 5 in the trial court. It must be made distinctly clear that Brahmadeo claimed interest in khata no. 458 while the present respondents Claimed interest in khata no. 459 only. The trial court decreed the suit declaring that the plaintiffs were the owners of both the khatas and were entitled to recover possession of the same.

Title Appeal No. 7/74 was preferred in the court of the Distt.

Judge, Gaya, and it was heard by the learned Fourth Addi. District Judge as per his judgment and decree dated July 12, 1974. The learned Addi. District Judge dismissed the appeal and affirmed the decree of the trial {; Ourt.

Present respondents alone preferred Second Appeal No. 697/74 in the High Court of Judicature at Patna. It must be specificafly

A mentioned that neither defendant 7 Brahmadeo who died pending the appeal before the District Court and whose legal representatives were not impleaded, nor anyone claiming under him either came to be substituted in the appeal pending in the District Court nor any of them preferred appeal to the High Court.

This has some relevance to the disposal of the appeal before us and, therefore, it has B been categorically set out.

Harkoo Gope and three others who claimed interest in khata no. 459 only, preferred second appeal against the dismissal of their appeal by the learned Distt. Judge.

When the Second Appeal No. 697/74 was pending in the High Court, an affidavit was filed on behalf of the appellants (respondents in this Court) on November 16, 1978, drawing attention of the Court to a notification under s.3 of the Bibar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 ('Act' for short) and further intimating to the Court that the village in which the disputed khatas were situated was taken up for consolidation of holdings and, therefore, the appeal pending in the High Court would abate in view of the provision contained in s. 4 of the Act.

The High Court accepted the submission and disposed of the appeal by its order dated August 18, 1979, the operative portion of which reads as under :

"The appeal abates and the judgments and decrees of both the courts below are hereby set aside as having abated".

Original plaintiffs having been dissatisfied by the order of the High Court not only abating the second appeal preferred by the respondents but also setting aside the judgments and decrees of the trial court and the first appellate court as having abated, have preferred this appeal by special leave.

Shri B.P. Singh, learned counsel who appeared for the appellants contended that even if the Second Appeal abates by virtue of the provision contained in s. 4, on issue of a notification under s. 3 of the Act, the High Court cannot set aside the judgments and decrees of the trial court and the first appellate court as according to him when an appeal abates the judgment and decree of the court

against which the appeal is preferred becomes final.

The second contention of the learned counsel is that in any view of the matter as the present respondents had no interest in khata no. 458 and as Brahmadeo on sale to him by Deonandan Singh alone claimed interest 'in khata no. 458 and since the death of Brahmadeo when the

BIBI RAHMANI v. HARKOO GOPE (Desai, J.) 557

first appeal was pending and his heirs and legal rpresentatives having not been substituted, the appeal qua him in respect of khata no. 458 had abated and the present respondents could not have preferred appeal in respect of khata no. 458 and, therefore, the High Court could not have set aside the decree in respect of khata no. 458.

Section 3 of the Act confers power on the State Government to make a declaration of its intention to frame a scheme for consolidation of holdings.

When the State Government entertains an intention to make a scheme for consolidation of holdings in a given village, it has to issue a notification declaring its intention to make a scheme for the consolidation of holdings in the specified area.

Section 4 provides that upon the publication of a notification under sub-s. (I) of s. 3, the consequences enumerated in s. 4 shall ensue.

One such consequence is as set out in sub-clause (c) which reads as under:-

"4. Effect of notification under section 3( I) of the D Act-

Upon tl, le publication of the notification under subsection (I) of section 3 in the official Gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the E notification till the close of the consolidation operations ensue in the area to which the notification relates, namely:-

(c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights of interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under . this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or pro- . ceeding is pending, stand abated".

There are as many as 5 provisos to clause (c) of s. 4 but only one is material which reads as under :

"Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder".

Present appeal arises out of a suit filed by the present appellants, who were plaintiffs, for a declaration of their title and consequential relief of possession meaning that it was a suit concerning agricultural land to which title was claimed and disputed.

This suit was pending in Second Appeal at the instance of the respondents when the notification under s. 3 {I) came to be issued.

Accordingly, s. 4 (c) would be attracted and the necessary consequence statutorily prescribed, must ensue.

Therefore, it is incontrovertible that the second appeal would abate.

Shri Singh, learned counsel for the appellants does not dispute this legal consequence.

The grievance of Shri Singh is that the High Court while making an order declaring that the second appeal has abated, was in error in setting aside the judgments and decrees of the trial court as well as of the first appellate court which were in favour of the present appellants on the ground that those proceedings have also abated. At first blush this argument is very attractive but if accepted it has a potentiality of doing irreparable harm.

\\!hen a scheme of consolidation is undertaken, the Act provides for adjudication of various claims to land involved in consolidation by the authorities set up under the Act.

In order to permit the authorities to pursue adjudication of rival claims to land unhampered by any proceedings in civil courts, a wholesome provision was made that the pending proceedings involving claims to land in the hierarchy of civil courts, may be in the trial court, appeal or revision, should abate.

This provision was made with a view to ensuring unhampered adjudication of claims to land before the authorities under the Consolidation Act without being obstructed by proceedings in civil courts or without being hampered or impeded by decisions of the civil courts in the course of consolidation of holdings. In order to avoid conflict consequent upon rival jurisdictions the legislature provided that the proceedings involving the claims to land put in consolidation should be exclusively examined

> .

BIB1 RAHMANI v. HARKOO GOPE (Desai, J.) 559

by the authorities under the Consolidation Act and all rival jurisdiction would be closed.

Simultaneously it was necessary to deal with the pending proceedings and that is why the provision for abatement of such proceedings.

The concept of abatement is known to civil law. If a party to a proceeding either in the trial court or any appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings.

Now, if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. In fact, such judgment, decree . or order under appeal or revision would become final.

Such is not the scheme of abatement as conceived by s. 4 of the Act.

Here, if the abatement as is conceptually understood in the Code of Civil Procedure is imported, it will do irreparable harm. To illustrate, if an appeal abates rendering either the trial court judgment or the judgment in first appeal final and binding; the consolidation authorities would also be bound by it and the party whose appeal or revision abated would lose its chance of persuading the appellate or revisional authority to accept its case which may result in interfering with or setting aside the judgment, order or decree in appeal.

Such was not and could not be the intention of s. 4.

This becomes manifestly clear from the proviso to clause (c) of s. 4 extracted hereinabove which shows that such abatement shall be without prejudice to the rights of the person affected to agitate the rights or interest in dispute in the suit or proceeding before the appropriate consolidation authorities under a'ld in accordance with the provisions of the Act.

No one would, therefore, stand to suffer on account of the abatement because there is a special forum carved out for adjudication of the rights which were involved in proceedings which would abate as a consequence of the notification under s. 3. If the construction as canvassed for were to be adopted it would result in irreparable harm and would be counter-productive. The consolidation work would be wholly hampered and a party whose appeal is pending would lose the chance of convincing the appellate court which, if successful, would turn the tables against the other party in whose favour the judgment, decree or order would become final on abatement of the appeal. Therefore, the legislature intended that not

only the appeal or revision would a bate but the judgment, order or decree against which the appeal is pending would also become nonest as they would also abate and this would leave consolidation authority free to adjudicate the claims of title or other rights or interest in land involved in consolidation.

In our opinion, therefore, the High Court was right in not only holding that the second appeal pending before it abated but also the judgment and decree of the trial court and first appellate court would stand abated along with those proceedings. We reach this conclusion on the language of ss. 3 and 4 and the scheme of the Act but the view which we are taking is also borne out by some decisions though in none of th em this position was directly canvassed.

In Ram Adhar Singh v. Ramroop Singh & Ors.,(1) this Court examined the effect of a provision in pari materia in a parallel statute, namely, s. 5 of the Uttar Pradesh Consolidation of Holdings Act, 1953 ('U. P. Act' for short). Section 5 provided for the consequences of a declaration of intention to prepare a scheme for consolidation of holdings made under s. 4.

As the section stood prior to its amendment in 1966, it did not provide for abatement of proceedings pending in civil courts at the commencement of consolidation proceedings.

By the Amending Act 21 of 1966, s. 5 was amended introducing sub-s. (2)(a) to provide for abatement of pending proceedings. This section is in pari materio with s. 4 (c) of Act. At the time of the issue of the notification an appeal by special leave was pending in this Court and a notice of motion was taken out requesting the Court to pass an order abating the appeal after taking note of sub-s. (2)(a) introduced by the Amending Act of 1966.

After negativing the contention challenging the constitutional validity of the Amending Act, this Court held that the suit out of which the appeal came to the Court would stand abated in view of sub-s. (2) (a) introduced in s. 5.

The emphasis is that not only would the appeal pending in this Court abate but the suit as a whole abated. True it is that no contention was taken whether only the appeal would abate keeping the judgment under appeal intact or the suit as a whole would abate, but the observation of this Court will clearly indicate that in the opinion of this Court the suit as such would abate rendering the appeal pending before this Court infructuous. This decision in Ram Adhar Singh's case supra was

BIBI RAHMANI v. HARKOO GOOPE (Desai, J.) 561

in terms followed in Chattar Singh & Ors. v. Thakur Prasad Singh(1).

The appeal in Chattar Singh"s case related to a suit which had a reference to a claim to the land in respect of which a notification was issued under the UP. Act as amended by Act 21 of 1966.

The notification was issued when the appeal was pending before this Court. The appellants moved for passing an order of abatement.

Granting the motion, this Court held that tl, e suit and the appeals stood abated, leaving it open to the parties to work out the rights before the appropraiate authorities under the U. P. Act.

Both the aforementioned decisions were noticed in Satyanarayan Prasad Sah and others v. State of Bihar and another. (2) In that case upon the issue of a notification under s. 3 of the Act at a time when the matter was pending in the High Court an order was made under s. 4 (c) abating the proceeding as also the suit from which the proceeding arose.

Writ Petitions were filed in this Court under Article 32 of the Constitution questioning the constitutional validity of s. 4 of the Act as being violative of Arts. I 4 and 19 of the Constitution. After repelling the challenge to the vires of s. 4. this Court affirming the decisions in Ram Adhar Singh and Chattar Singh' s case (supra) held that maybe that the High Court should not have nullified the decree of the trial court but should have merely declared that the proceeding stood abated which this Court understood to mean that the civil proceeding comes to a naught.

In other words, the proceedings from its commencement abate and no decision in the proceeding at any stage would have any impact on the adjudication of claims by the parties under the Act.

Accordingly, both on principle and precedent it is crystal clear that where a notification is issued bringing the land involved in a dispute in the civil proceeding under a scheme of consolidation the proceedings pending in the civil court either in the trial court, appeal or revision, shall abate as a consequence ensuing upon the issue of a notification and the effect of abatement would be that the civil proceeding as a whole would come to a naught. Therefore, the order of the High Court impugned in this appeal is legal and valid so far as it not only directed abatement of the appeal pending before the High Court but also abating the judgments and decrees of the trial court and the first appellate court because the entire civil proceeding came to naught.

(1) A.LR. 1975 S.C 1-499.

(2) A.LR. 1980 S.C. 2051.

The next contention of Shri Singh was that the Hight Court ought not to have nullified the decree with regard to khata no. 458 in which Brahmadeo and Deonandan Singh, defendants 7 and 5 respectively, alone were interested and the present respondents had no interest in khata no. 458. Learned counsel who appeared for the respondents conceded that the present respondents have no interest in khata no. 458. It also transpires that Brahmadeo claimed interest in khata 110. 458 alleging that he had purchased the land involved in the khata from Deonandan Singh, defendant 5. The suit proceeded ex-parte against defendants 5 and 6 and Brahmadeo, defendant 7 contested the suit in respect of khata no. 458.

The trial court negatived the contention of defendant 7 Brahmadeo and accepted . plaintiff's title. Defendant 7 Brahmadeo along with other defendants preferred an appeal to the District Court. When the appeal was pending in the District Court, Brahmadeo, the appellant died.

His legal representatives were not substituted. Since defendant 7 Brahmadeo as appellant claimed separate, specific and exclusive right to khata no.~458, on his death his legal representatives ought to have been substituted. He was the appellant. No one was substituted on his behalf. Obviously, therefore, the appeal preferred by Brahmadeo abated. It may also be made clear that legal representatives of Brahmadeo have not preferred second appeal.

Second Appeal was preferred by the present respondents who claimed. interest in khata no. 459 only.

Accordingly, when the appeal preferred by the present respondents abated, it only abated with reference to khata no.· 459 and in no case it would have any impact on the title of present appellants which became established under a:decree of the trial court which became final on the appeal of Brahmadeo having abated before the notification under s. 3, and it could not at all be dealt with by the High Court. To that extent this appeal wlll have to be allowed and an appropriate modification would have to be made.

Accordingly, this appeal succeeds in part. Proceedings with. regard to khata no. 459 (Bhouli) in Touzi 7535, village Parsaia were rightly abated by the High Court and the civil proceedin: with regard to khata no. 459 as a whole would abate leaving the parties to get their rights adjudicated before the authorities under the Act.

The title of the appellants declared by the trial court in respect of kbata no. 458 (nakdi) has become unchallenieable at the hands of Brahmadeo or anyone claiming throuih him and the

, i... ..

BIBI RAHMANI v. HARKOO GOOPE (Desai, J.) 563

abatement of the second appeal will have no impact on the title of the appellants to khata no. 458. The declaration made by the trial court in respect of khata no. 458 is restored.

In the circumstances of the case there will be no order as to costs.

P. B. R.

Appeals allowed in part.

BIBI RAHMANI KHATOON & ORS

HARKOO GOPE & ORS

April 22, 1981

D.A. DESAI

BAHARUL ISLAM, JJ

section 3(1)

section 3(1)

section 3

section 4

Section 3

section 4

the Code of Civil Procedure

section 4

section 4

[1968] 2 S.C.R. 95

Satyanarayan

Patna High Court

B.P. Singh

S.K. Mehta

DESAI

Bibi Rahmani Khatoon

Additional Subordinate Judge I, Gaya

Brahmadeo

March 3 l, 1959

Deonandan Singh

Brahmadeo

July 12, 1974

High Court of Judicature at Patna

Harkoo Gope

November 16, 1978

s. 4

August 18, 1979

B.P. Singh

s. 4

s. 3

Section 3

Section 4

s. 3

s. 4

section 3( I)

section 3

s. 4

s. 3

s. 4

Singh

s. 4

the Code of Civil Procedure

s. 4

s. 4

s. 3

ss. 3 and 4

s. 5

Section 5

s. 4

s. 5

s. 4

s. 5

Ram Adhar Singh

Chattar Singh"s

s. 3

s. 4

Article 32

s. 4

s. 4

Chattar Singh

Brahmadeo

Deonandan Singh

District Court, Brahmadeo

s. 3

Parsaia


(EX) CAPT. RANDHIR SINGH DHULL

S. D. BHAMBRI & OTHERS

March 2, 1981

[R. S. PATHAK, 0. CHINNAPPA REDDY AND BAHARUL ISLAM, JJ.]

Punjab Tahsildari Rules 1932, Rules 5 and II and Standing Order Na. 12 of 1909, Part A, Para 4(1) and Punjab Emergency (Concession) Rules 1965, Rules 2 and 4(ii)-Class 'A' Tahsildar-Recruitment-Candidates initially 'accepted' and thereafter 'appointed'-Seniority-Determined by date of substantive appointment in the post-Military service rendered by a candidate-Concession in seniority-When admissible.

Standing Order No. 12 of 1909 (Part A) provides for.two classes of Tahsildar candidates (1) class 'A' (or direct) and (2) class 'B'. Para 4 (1) of the Standing Order read with the Punjab Tahsildari Rules 1932 provides that candidates are required to undergo training for a period of three years in the case of class 'A' direct recruits. In addition to the completion of training a candidate is required to pass a qualifying departmental examination before he is eligible to be appornted to the post of Tahsildar, temporary or permanent.

Initially, a tahsildar candidate is not enrolled against any post, nor is he appointed against any vacancy but is appointed against vacancies after completing the training and passing the examination held. After appointment to the post of tahsildar, the officer has to be on probation for a period of two years under Rule

10 of the Tahsildari Rules. Rule 11 provides that the seniority of members of the service shall be determined by the date of substantive appointment in the post.

The Punjab Emergency (Concession) Rules, 1965 provides by sub-rule (ii) of Rule 4 that the period of 'military service' shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service.

The petitioner in his writ petition contended, that he appeared in the class 'A' Tahsildar candidate Haryana Civil Services (Executive Branch) Services Examination 1972-73 and was accepted as 'A' Class Tahsil<lar candidate on September 13, 1974 and joined the civil post with effect from September 26, 1974. After completing the training he was appointed to the post on January 3, 1978. He approached respondent No. 1 under Rule 4(1) and (ii) of the Punjab Emergency (Concession) Rules, 1965 and requested that the military service rendered by him from 1963 to 1974 except for the P.eriod from July 2, 1968 to October 13, 1968 be tagged on to his services with effect from September 26, 1974 for the purpose of his seniority, increments, promotion, pensions etc. and that respondent No. l did not give this facility though it was accorded to other respondents, and that the promotion of respondents Nos. 3 to 18 who were junior to him had violated Articles 14 and 16 of the Constitution.

The first respondent claimed that the petitioner was accepted as class 'A' Tahsildar candidate on 13th September, 1974 and that he had qualified himself

A for the post of Tahsildar after he had completed the prescribed training and successfully qualified in the departmental examination and that he was appointed as Tahsildar by the order dated January 3, 1978. As the petitioner had been in service in the Armed Forces from April 29, 1963 to January 10, 1968 on which day termination of the Emergency was declared, the petitioner was given the benefit of the service and his seniority was fixed as on May 26, 1973 in accordance with the provisions of Rule 4, sub-clause (ii) read with Rule 2 of the Punjab B Emergency (Concession) Rules 1965.

Dismissing the petition,

HELD : 1. The petitioner was not appointed to but accepted as a candidate for the post of Tahsildar. [63 D]

In the instant case a perusal of the letter of appointment Annexure P-S alongwith sub-rules 2 and 3 of Rules S and 11 of the Tahsildari Rules shows that the petitioner was merely accepted as a candidate for the post of Tahsildar. It is mentioned therein that the terms and conditions of the service namely training, passing of departmental examination, and probation are to be governed by the Tahsildari Rules and Standing Order No. 12 as amended from time to time. A candidate had to fulfil the said terms and conditions mentioned before his appointment to the post of Tahsildar. [62 H-63 D]

The petitioner's substantive appointment was by order dated January 3,

1978. It is clear from the said order that the substantive appointment of the petitioner cannot be before the said date. [63 E, 64 F]

3. The military service of the petitioner from January 11, 1962 to July 1, 1968 and again from October 31, 1968 to September 22, 1974 was not during the operation of emergency. The petitioner's service from October 31, 1969 to September 22, 1974 was not as an "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." During this period the petitioner had been allowed the benefit of service rendered by him in the Army for the period from April 29, 1963 to January 10, 1968 by the order dated December 14, 1978 of the Financial Commissioner. [ 66 C]

The petitioner has not been able to point out that any of the respondent Nos. 3 to 18 was given seniority from the date of acceptance. In fact none of them was accepted alongwith him by letter dated September 13, 1974. [67A]

ORIGINAL JURISDICTION: Writ Petition No. 1099 of 1979.

(Under Article 32 of the Constitution)

R. K. Garg, P. C. Bhartari, K. S. Tiwari, Arvind Kumar and Mrs. Laxmi Arvind for the Appellant.

K. G. Bhagat and M. N. Shroff for Respondents I & 2.

The Judgment of the Court was delivered by

BAHARUL !SLAM, J. the Constitution of India.

This is an application under Art. 32 of The Petitioner, Ex.-Capt. Randhir Singh

Dhull prays that the military services rendered by him from 1963 to A 1974 (except for the period during 1968 from 2.7.68 to 13.10.1968)

be tagged to his services with effect from 26.9.1974 for the purpose of his seniority, increments, promotion, pensions etc., and for a direction to respondent no. l, the State of Haryana, to promote him to the Haryana Civil Service (Emergency Branch) on the basis of the seniority claimed with effect from the date mentioned above.

His B grievance is that respondents no. 3 to 18 who were junior to him had been promoted and put above him. The impugned action of respondent no. I, according to the petitioner, has violated Arts. 14 and 16 of the Constitution. ·

This case has a chequered career. The material facts may be stated in a short compass.

The petitioner is an ex-army personnel, his rank having been Captain. He served during the period of Emergency from 29-4-1963 to 1-7-1968 and also during the period of Emergency from 31.10.1969 to 22.9.1974, the total period of service thus having been 10 years, . one month and 23 days before his . appointment t-0 the present post he is now holding.

The respondent no. 1 through the Haryana Public. Service Commission by an advertisement called for applications that a combined competitive examination for recruitment to, inter alia, "A Class Tahsildar (Apprentices) wouH.l be held by the Haryana Public Service Commission at Chandigarh in March, 1973 in accordance with the rules contained in the Punjab Public Service (Executive Branch) Rules, 1930. The petitioner appeared in the said examination and was successful and as a result he was appointed to present post of Tahsildar Class II post............ against reserved post/service for ex-services."

There is a set of rules called the Punjab Emergency (Concession) Rules, 1965 (hereinafter 'the Emergency Concession Rules').

According to the petitioner he joined civil post on 26.9.74 and under Rule 4(i) & (ii) of the aforesaid Rules and the administrative instructions his services arc required to be counted immediately on his joining the Civil post namely with effect from 26.9.1974, tagging the period of military services to the present post.

But as respondent no. 1 did not do so, he sent several representations to respondent no. I to give him the benefit of seniority, promotion, increment etc. according to the said set of Rules. The petitioner alleges that while respondent no. I did not tag the petitioner's period of military service towards his seniority; promotion and increment. respondent no. J gave similar facilities to Capt. Phu! Singh, Kewal Singh, Indraj Singh,

H. R. Kapur and other respondents. His further allegation is that

A while he has been deprived of his dues mentioned above, respondent nos. 3 to 18, who were junior to him were promoted to be put above him.

As the respondent no. I did not favourably react to the representations made by the petitioner, he filed a Writ Petition, being B W. P. No. 1398/77,, in the High Court of Punjab and Haryana but he withdrew it on a promise made by the Counsel of respondent no. I.

But as respondent no. I did not keep the promise he filed an application for review of the order made in W. P. No. 1398 of 1977. The petition for review was rejected but he was permitted by the High Court of Punjab and Haryana to file a fresh application.

He then C filed CWP No. 3584 of 1977 which was dismissed in August, 1978 by a single Judge of the said High Court. The petitioner filed Letters Patent Appeal from the judgment of the single Judge.

The Letters Patent Appeal was also dismissed. The petitioner then filed a special leave petition before this Court. The special leave petition was also dismissed. He then filed an application for review before this Court.

D The application for review was also dismissed in limine.' The petitioner then filed an application before the single Judge of the High Court of Punjab and Haryana for the review of his judgment but it was dismissed in April, 1979. Against that order a special leave petition, being S.L.P. (Civil) No. 4475ef1979, was filed before this Court.

The Special Leave Petition was allowed to be withdrawn by this E Court with liberty to the petitioner to file a Regular Writ Petition under Article 32 of the Constitution by. Order dated 27.8.79. The , petitioner has thus filed the present writ application.

Respondent No. I (hereinafter 'the respondent') has filed a counter affidavit.

The contention of the respondent is that by F Annexure P. 5 the petitioner was not appointed to the post of Tahsildar but he was accepted as a Tahsildar candidate.

In other words, the Respondent's contention is that the petitioner was accepted as an Apprentice for appointment to the post of Tahsildar after he qualified in the Haryana Civil Service (Executive Branch) and Allied Services Examination held by the Haryana Public Service Commission G in 1972-1973 in accordance with the rules in force for selection of 'A' class Tahsildar-apprentices.

According to the respondent the petitioner was accepted by the Financial Commissioner, Haryana, as a candidate, for the post of Tahsildar in the State of Haryana on 13th September, 1974 as per Annexure P. 5.

The respondent has H explained the procedure. The procedure is that candidates for the post of Tahsildar ate required under para 4(1) of the Standing Order No. 12 (hereinafter 'the Standing Order') issued by the Financial

. ""r

Commissioners read with Rule 5 of the Punjab Tahsildari Rules 1932, (hereinafter 'the Tahsildari Rules') to undergo training for a period of three years in the case of directly recruited candidates categorised as 'A' Class. In the case of candidates recruited otherwise are categorised as 'B' class candidates; the training period is fixed by the Financial Commissioner keeping in view candidates', experience and qualification. In addition to the completion of training, candidates are required to pass certain qualifying departmental examination before he is eligible to be appointed to the post of Tahsildar, temporary or permanent. Initially the tahsildar candidates are not enrolled against any post, nor are they appointed against any vacancy but they are appointed against vacancies after they have completed the training and passing the examination held.

After appointment to the post of Tahsildar the Officer has to be on probation for a period of two years under Rule 10 of the Tahsildari Rules.

According to the respondent the petitioner was accepted as Class 'A' Tahsildar candidate/apprentice on 13th September, 1974. The petitioner qualified himself for the post of Tahsildar after he had completed the prescribed traiTJ ing and successfully qualified in the departmental examination and he along with 6 others was appointed as Tahsildar in the post of Tahsildar by Order dated 3rd January 1978.

The respondent's case is that 'as the petitioner had been in service in Armed Forces from April 29, 1963 to January 10, 1968 on which date termination of the Emergency was declared under Art. 352 of the Constitution with effect from 26th October, 1962, the petitioner was given the benefit of the sery_ice and his seniority was fixed as on 27th May 1973 in accordance with the provisions of Rule 4(ii) read with Rule 2 of the Emergency Concession Rules, 1965 (Annexure 'B').

The decision of this case depends primarily on the true and correct interpretation of the document, Annexure P-5 :

(i) Whether it is a letter of appointment of the petitioner to the post of Tahsildar, as claimed by the petitioner, or

(ii) Whether it is a letter of acceptance of the candidature of the petitioner to the post Lof Tahsildar, as contended by the respondent.

The material portion of document H Annexure p.5 reads :

"From

The Financial Commissioner & Secretary to Government, Haryana, Revenue Department.

I. Shri Raj Kumar Aggarwal... .............. .

Shri Amarnath Ichhpujani ................. :

Shri Ashok Kumar Visistha .............. .

Shri Kamal Kumar Gupta .. .............. ..

Shri Hard hull Singh Bhole ................. .

Shri Randhir Singh Dhull (Petitioner)

7. Shri Nepal Singh Tanwar ................. .

Memo No. 3896-E-II-74/30535

Chandigarh, dated the 13th September, 1974

• Subject ; Acceptance of class 'A' Tahsildar candidate Haryana Civil Services (Executive Branch) ad other services examinations 1972-73.

The Financial Commissioner, Revenue Haryana is pleased to accept Sarvshri Raj Kumar Aggarwal, Amar Nath Ichhpujimi, Ashok Kumar Vasistha, Kamal Gupta, Hardhul Singh Hhole, Randhir Singh Dhull and Nepal Singh Tan war as 'A' Class Tahsildar candidates.

The acceptance of Sarvshri Ashok Kumar Vasistha and Hardhul Singh Bhole is subject to verification of their charac- ter and antecedents.

The interse seniority of the above candidates will be communicated to them later.

3. The arrangements for their training will be made by the Commissioners, Ambala and Hissar Division, who are being asked to communicate the programme of training to them. They are allotted to the Commissioners, Ambala and Hissar Division for training as under :

COMMISSIONER,

COMMISSIONER,

AMBALA DIV.

HISSAR DIV.

I. Shri Raj Kumar I. Shri Kamal Kumar Aggarwal Gupta

Shri Amarnath 2.

Shri Hardhul Singh Ichhpujani Bhole

Shri Randhir 3.

Shri Ashok Kumar Vasistha

Shri Nepal Singh Tanwar

The terms and conditions of their service, training, passing of departmental examination, probation etc. will be governed by the Punjab Tahsildari Rules, 1932 and the Financial Commissioner's Standing Order No. 12 as amended from time to time.

During the period of their training they shall draw pay at the rate of the minimum of the time scale of the post of Tahsildar of Rs. 350-25-500-30-650-800 viz. Rs. 350/-

P.M.

They are requested to intimate their Home Districts and the districts in which they have property to the Commissioner of Divisions to whom they have been allotted for imparting training, and this department,

The receipt of this communication may please be acknowledged.

Sd/- Deputy Secretary Revenue, Financial Commissioner and Secretary to Government, Haryana and Revenue Department."

(emphasis added)

Annexure P-5 is based on the Standing Order, and the Tahsildari Rules. The Standing Order, inter alia, says that the H rules for the appointment, removal and discipline of Tahsildars and Naib Tahsi!dars are contained in the Tahsildari Rules.

A Part A of the Standing Order speaks of two classes of Tahsildar:

(I) Class A (or direct) candidates and (2) Class B candidates.

The relevant provisions of Rule 5 of Tahsildari Rules may be extracted;

"5 (1) No person shall be directly appointed to the service unless in the case of appointment to the post of

(a)

(b)

Tahsildar, he is graduate of a recognised university

(2) No person shall be appointed directly or by transfer to the service or promoted from the post of Naib Tahsildar to that of Tahsildar unless he shall have become qualified by passing the examination or undergoing the training prescribed from time to time in the Standing Orders of the Financial Commissioners.

(3) No person shall be appointed directly or by transfer to the service unless he has been accepted as a candidate in the case of Tahsildar by the Financial Commissioners and in the case of Naib Tahsildar by the Commissioner under the conditions prescribed from time to time in the Standing Orders of the Financial Commissioners".

(emphasis added)

Rule 11 speaks of the seniority of service and need be F quoted :

"11. The seniority of members of the service shall in so far as any post is concerned be determined by the date of substantive appointment in the post ............ "

(emphasis added)

'Service' has been defined in the Tahsildari Rules as :

"Service means the Punjab Service of Tahsildars and Nail>.

Tahsildars".

H 8.

A perusal of the letter as per Annexure P. 5 alongwith sub-rules 2 and 3 of rule 5 and rule 11 of the Tahsildari Rules clearly

show that by letter Annexure P. 5 the petitioner was merely accepted as a candidate for the post of Tahsildar. Annexure P. 5 itself has mentioned the terms and conditions of the service namely training, passing of departmental examination and probation to be governed by the Tahsildari Rules and Standing Order No. 12 as amended from time to time. A candidate had to fulfil the terms and conditions named in the letter before his appointment to the post of Tahsildar. The terms and conditions were :

(i) to undergo a period of training

(ii) to pass a departmental examination.

(iii) to undergo a period of probation, etc.

Fulfilments of thes_e terms and conditions by a candidate were conditions precedent to his appointment. Annexure P. 5 has nowhere mentioned that the petitioner was appointed as a Tahsildar.

We therefore have no hesitation in holding that he was not appointed to, but accepted as candidate for, the post of Tahsildar, by Annexure P. 5.

Rule 11 lays down that the seniority of the members of the service shall be determined by the date of the substantive _ appointment in the post. The petitioner's substantive appointment was vi de order dated 3. I. 78. (Annexure A to the Counter Affidavit) which reads as :

"Subject: Declaration of 'A' Class Tahsildar candidate (under training as Naib Tahsildar) as qualified for the post of Tahsildar.

In Exercise of the powers vested in him vide para 6 of the Financial Commissioners Standing Order No. 12, the Financial Commissioner, Revenue is pleased to declare the following 'A' Class Tahsildar candidates as qualified for the post of Tahsildar ;

Shri Amar Nath Ichbpujani, under training as Naib Tabsildar, Tbanesar.

Shri Ashok Vasbisitha, under Training as Naib Tahsildar, Gurgaon.

Shri Kamal Kumar_ Gupta, under training as Naib Tahsildar, Rohtak.

Shri Hardhul Singh Bhole, under training as Naib Tahsildar, Mohindergarh.

Shri Randhir Singh Dhull, under training as Naib Tahsildar working as Tahsildar, Kalka, under local arrangement.

Shri Nepal Singh Tanwar, under training as Naib Tahsildar, Rawal.

Consequent upon the declaration of the above 'A' Class Tahsildar candidates as qualified for the post of Tahsildar, they are appointed as Tahsildars. The orders about their deployment against the posts of Tahsildars are being issued separately. Their appointment as Tahsildar shall take effect from the date they assume charge of those posts. Their appointment as Tahsildars will be governed by the Punjab Tahsildari Rules, 1932, and the Financial Commissioners Standing Order No. 12, as amended from time to time.

The declaration of Shri Hardhul Singh Bhole (sl. no. 4 above) as qualified for the post of Tahsildar and his consequent appointment as such, is subject to the condition that he should qualify the tahsildar's examination in Urdu paper within 6 months from the d.ate of issue of this letter.

Sd/- Deputy Secretary to Govt., Haryana.

Revenue Department.".

(emphas'is added)

From Annexure A, it is clear that the date of the substantive r appointment of the petitioner cannot be before 3.1.78.

10. Standing Order No. 12 of 1909 (Part A), as stated above, mentions two classes of "Tahsildar candidates":

(i) Class A (or G direct) and (ii) Class B.

We are not concerned with class B tahsildar. Class A (or direct) candidates, according to Order No. 12, "must belong to families of tried loyalty and distinguished services, and must be of good social status and influence in the country or members of a class the introduction of which into the public H service it is considered desirable especially to encourage ......... "

(emphasis added)

The petitioner submits that Standing Order No. 12 which is a part of the Tahsildari Rules does not survive the Constitution. We do not feel called upon to decide this point in this case as the petitioner cannot be allowed to raise the point for two reasons :-

(i) The basis of the petitioner's case . all throughout, at all

stages, was Annexure P. 5 based on the Tahsildari Rules B and Standing Order No. 12.

Even now he does not claim his appointment on any other basis ; ·

(ii) Secondly, if the Tahsildari Rules and the Standing Order No. 12 are held to be ultra vires, the letter of acceptance (or letter of appointment as the petitioner erronously calls it) which was issued under the provisions of the said Rules, will disappear and the petitioner will have no legs to stand on.

11. Rule 11 of the Tahsildari Rules has been quoted above.

It provides for the seniority of the members of the service.

It is tO D be determined by the date of the substantive appointment in the

post.

The petitioner however claims that he is entitled to get the benefit of his service in the army during the Emergency, under the provisions of the Emergency (Concession) Rules ; E

Sub-rule (ii) of Rule 4 of the Emergency Concession Rules reads :

"4 (ii) Seniority :-The period of military service mentioned in Clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service."

Military service is defined in rule 2 thus :

"For the purpose of these rules, the expression "military service" means the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of emergency made by the President under Art. 352 of the Constitution of India on the 26th October, 1962 in any of the three wings of the Indian Armed Forces (including the service as a Warrant Officer) during the period of the said Emergency or such other service as may hereafter be declared as military service for the purpose of these rules. Any period

A of military training followed by military service shall also be reckoned as military service.

A perusal of the rule quoted above shows that the Concession in seniority is admissible (i) in respect of military services rendered during the operation of emergency only and not for any military services after the termination of emergency and (ii) only if the service in the military is as "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." The military service of the petitioner from January 11, 1962 to July I, 1968 and again from 31.10.1968 to 22.9.1974 was not during the operation of emergency in question.

Further

th~ petitioner's service from October 31, 1969 to September 22, 1974 was not as an "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." During this period the petitioner has been allowed the benefit of seniority under the Emergency Concession Rules by Order dated 14.12.78 of the Financial Commissioner, Revenue, Haryana in the following terms :

"In pursuance of provisions of rule 4 (i) and (ii) of the Punjab Government National Emergency (Concession) Rules, 1965 issued vide Punjab Government Notification No. GSR-160.

Const/Art. 309/65, dated the 20th July 1965 as amended vide Haryana Govt. Notification No. GSR-182/Const. Art. 309/ Amd (2)-76, dated the 4th August, 1976.

Shri Randhir Singh Dhull, 'a' Class Tahsildar is allowed the benefit of service rendered by him in the Army during the National Emergency as an Emergency Commissioned Officer for the period from 29th April 1963 to 10th January, 1968 towards seniority and his seniority is fixed immediately below Shri Jaswant Singh Rajput among the 'A' class Tahsildars. His date of appointment as Tahsildar will be 27th May 1973.

2. Further his pay is fixed at Rs. 450/- P.M. in the scale of Rs. 350-25-500/30-650/30-800 with effect from 8.2.78 (his actual date of appointment to the post of Tahsildar) and his' next increment raising his pay to Rs. 475/-P. M. is 1.2.79.

He will not be entitled to any arrears of pay as a result of the above fixation prior to 8.2.1978.

3. The above period of Army Service shall count for pension only after Shri Dhull has deposited the bonus or gratuity received by him from military authorities.

12, The petitioner has not been able to point out that any of the respondents No. 3 to 18 were given seniority from the date of acceptance. Jn fact none of them was accepted alongwith him by letter dated 13.9.74.

13. The petitioner's further grievance is that the military service of the Captain K. Phool Singh, Captain Khem Singh Lathar, Shri Inder Singh, Captain A. R. Kohar and Captain B. K, Batra mentioned in para 8 of the petition have been counted for the benefit of their seniority etc.

The petitioner's grievance is baseless.

Their cases were different.

None of them was given the benefit of his service from the date he joined as a 'Candidate'.

The respondent in the counter affidavit asserts that not a single ex-army service Tahsildar Candidate has been allowed the benefit of mili.ary service from the date of acceptance as class 'A' Tahsildar candidate.

14. The petitioner has not been able to make out any case of discrimination and violation of Arts. 14 and 16 of the Constitution.

The. petition has no merit and is dismissed.

We however leave the D parties to bear their own costs.

15.

Mr. Bhagat, the learned Counsel appearing for the Respondent, submitted that the Writ Petition was barred by res iudicata and in support of his subrr.ission he cited a decision of this Court reported in AIR 1970 S. C. 898.

We need not examine the submi- E ssion for two reasons :

(i) We have decided the case on merit against the petitioner and (ii) the petitioner obtained permission of this Court to file a Writ Petition vide Order 5.9.79 in S. L. P. No. 4475 of 1979 (Annexure P. I)

N.V.K.

Pl!tition dismissed.

EX) CAPT. RANDHIR SINGH DHULL

S. D. BHAMBRI & OTHERS

March 2, 1981

R. S. PATHAK

0. CHINNAPPA REDDY

BAHARUL ISLAM, JJ.

Punjab Tahsildari Rules 1932

September 13, 1974

September 26, 1974

January 3, 1978

July 2, 1968

October 13, 1968

Articles 14 and 16

13th September, 1974

April 29, 1963

January 10, 1968

May 26, 1973

January 3,

1978

January 11, 1962

July 1, 1968

October 31, 1968

September 22, 1974

October 31, 1969

December 14, 1978

Article 32

R. K. Garg

P. C. Bhartari

K. S. Tiwari

Arvind Kumar

Laxmi Arvind

K. G. Bhagat

M. N. Shroff

BAHARUL !

Constitution of India

Art. 32

Arts. 14 and 16

Haryana Public. Service Commission

Haryana Public Service Commission

Chandigarh

Phu! Singh

Kewal Singh

Indraj Singh

H. R. Kapur

High Court of Punjab and Haryana

Article 32

Haryana Public Service Commission G

Punjab Tahsildari Rules 1932

3rd January 1978

Art. 352

27th May 1973

Emergency Concession Rules, 1965

Raj Kumar Aggarwal

Amarnath Ichhpujani

Ashok Kumar Visistha

Kamal Kumar Gupta

Hard hull Singh Bhole

Randhir Singh Dhull

Nepal Singh Tanwar

Financial Commissioner, Revenue Haryana

Raj Kumar Aggarwal

Amar Nath Ichhpujimi

Ashok Kumar Vasistha

Kamal Gupta

Hardhul Singh Hhole

Randhir Singh Dhull

Nepal Singh Tan war

Hardhul Singh Bhole

Ambala

Raj Kumar

Kamal Kumar Aggarwal Gupta

Amarnath 2

Hardhul Singh Ichhpujani Bhole

Randhir 3

Ashok Kumar Vasistha

Nepal Singh Tanwar

Punjab Tahsildari Rules, 1932

Naib Tahsildar

3. I. 78

Amar Nath Ichbpujani

Ashok Vasbisitha

Kamal Kumar_ Gupta

Hardhul Singh Bhole

Art. 352

Constitution of India

26th October, 1962

Indian Armed Forces

July I, 1968

Art. 309

Art. 309

29th April 1963

10th January, 1968

Jaswant Singh Rajput

Dhull

K. Phool

Khem Singh Lathar

Inder Singh

A. R. Kohar

B. K, Batra

Arts. 14 and 16

Bhagat