288 .

PARASHRAM THAKUR DASS & OTHERS

RAM CHAND S/O SHRI RADHUMAL & OTHERS

February 17, 1982

[R.S. PATHAK AND 0. CHINNAPA REDDY, JJ.)

Madhya Pradesh Land Revenue Code, 1954 Ss. 149(2) and 164(3) & Madhya Pradesh Land Revenue Code Rules, 1956, Rules 2 to 26.

Allotment of nazul land to displaced persons-Applications from claimants~ State Government ini1ially deciding not to grant plots-Subsequent decision to allot .)..-~- - plots taken-Plots allotted to some claimants-Claims of other parties not considered-Such action-Whether valid.

Grant of lease-Hold right in nazul land without auction-Rea,, ons to hi recorded in writing-Whether essential.

Respondents Nos. I to 16 applied for the grant of plots of land for purposes of constructing shops, alleging that they were displacedpersons and entitled to the grant of plots. The appellants also made a similar application. There were applications from other claimants. The State Government acting on the report of the Commissioner rejected all the applications. Subsequently the Government at the instance of the appeJlants who had sought a review1 reversed its earlier or®r and df'cided to grant plots on permanent lease to the appellants. The deci sion was conveyed in a memorandum by the State Government, who granted the plots to the appellants as shop sites in Bhumidhari rights without auction on payment of premium. The allotment was assailed by the respondents and they repre.sented to the State Government that only after further inquiry should the land be reserved for do!serving claimants.

The respondents filed a writ petition in the High Court challenging the allotment made by the Government in favour of the appellants contending that no reasonable opportunity had been given to them to press their claim for grant of plots, after reversal of the earlier decision not to grant land, that the apoellants had been unduly favoured, and that the power to grant plot's was 't"ested in the Collector and not in the State .Government. The appellants contested aHeging that they bad acquired a right to the land that -they could not be divested of those rights. The High Court quashed the order granting plots to the appellants and directed the State Government to take appropriate action on the several claims for allotment of lalld. It held that under sub--sect.ion (2) of section 149 read with

subsection (3) of section 164 of the Madhya Pradesh Land Revenue Code, 1954, and rules 22 and 26 framed under the Code it was not open to the State Government to dispose of the plots without holding a public auction unless there were reasons recorded in writing for doing so and that after initially deciding not to

PARASRAM v. RAMCHAND 289

grant the plots, the su sequent decision to allot them was contrary to law as the claims of others had not been considered.

Dismissing the appeal,

HELD : I. The High Court was right in quashing the order granting plots to the appellants and directing the State Government to consider the several

_ claims for allotment. [296 C-D] B

2. The grant cannot be attributed to clause (c) of sub-section (2) of section

149. _The land was disposed of in Bhumidhari right. It was not given on favourable terms to the appellants, tlie market value of the plots was taken for fixing the premium. From the nature of the grant, it was clear that action under subsection (I) of section 149 was intended. [293 El

3. Under Rules 24 to 26 of the Land Revenue Code, lease-hold rights in nazul land are to be disposed of by public auction. If in any particular case the State Government or the Collector considers that there is good reason for grant ing the land without auction the reasons must be recorded in writing.· The exis

tence of good reason for departillg from the general principle and the recording of the reason in writing are essential prerequisites which must be satisfied before lease hold rights are granted without auction. [295 A-CJ

In the instant case there is no evidence that the State Government has recorded any reasons in writing for prcfcring the mode of disposing of the land without auction. It had also no good reason for favouring that mode. In these circumstances the gfant ot land to the appellants was rightly quashed by the High Court. [295 E-F]

4. The State Government hRd decided earlier, as a matter of policy, not to allot nazul land to displace.d persons, and pursuant to the decision all the appli cations for a11otment were rejected. The applications 'illCre not rejected on the merits of their respective claims. Subsequently, when the State Government made an allotment of the plots to the appellants, it was consequent to a decision, which. must be regarded as a composite of two decisions. one a policy decision to throw open the land to allotment in reversal of the earlier policy and, two, to allot the land to the appellants. The applications of the respondents for allotment of plots were rejected on te ground that the land was not available for a1lotment. That was a policy decision. When it was reversed it was incumbent on the State Government to reconsider those applications or to notify that the land was available for allotment and to invite fresh applications in that behalf.

It was not open to thC State Government to allot the plots to the appeUailts in disregard of the claims of others who bad also applied for allotment.

[295 G-H; 296 AB]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 440 (N) of 1970.

Appeal by special leave from the judgment and order dated the 18th June 1969 of the Bombay High Co4rt in Misc. Civil Appln.

No. 139 of 1968.

29()

SUPREME COURT REPORTS (1982] j s.c.I!..

A Naunit Lal, for the Appellant.

A.G .. Ratnaparkhi for Respondents Nos. 1-6.

M.N. Shroff, for Respondents Nos. 17-19.

The Judgment of the Court was delivered by

PATHAK, J. This appeal by special leave is directed against the judgment of the Nagpur Bench of the Bombay High Court quashing the grant of Nazul land to the appellants on a writ petition filed by the respondents Nos. I to 16.

The respondents Nos. 1to16 applied on March 15, 1963 for the grant of sixteen plots of land included in Government Nazul Plot No. 31/l (Sheet No. 49-D) in Yeotmal Town for the purpose of constructing shops thereon. They alleged that they had not been allotted any land yet for carrying on business at Y eotmal, and inasmuch as land sites were being released to refugeea or displaced persons they claimed that having been compelled to migrate from West Pakistan to India during the partition of 1947 they were entitled to the grant of such plots. The appellants made a similar application on May 16, 1964 and it is their case that they had also applied earlier in the same behalf on February 27, !962. There were applications from other claimants also. The State Government, acting on the report of the Commissioner, Nagpur Division, rejected all the aplications. The appellants say that they sought a review of the order of the Government, and on June 28, 1965 the Government reversed its order and decided to grant plots on permanent lease to the appellants. The Collector, Yeotmal submitted a report to the Government pointing out that each plot would be 192 sq. ft. in area and having regard to its market value each allottee should be required to pay a premium of Rs. 960. The State Government granted the plots to the appellants as shop sites in Bhumidhari right without auction on payment of premium, and the decision. was conveyed in a Memorandum dated March 3, 1966.

The allotment was assailed by the respondents, and they represented to the State

Government that after further inquiry the land should be reserved for deserving claimants.

H The respondents filed a writ petition before the Nagpur Bench of the Bombay High Court challenging allotment made by the Government in favour of the appellants. They urged that no reason-

• I /-

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l>ARASRAM V, RAM CHAND (Pathak, J.) 291

 able opportunity had been given to them to press their claims for grant of plots after the Government had reversed its earlier decision not to grant land, that the appellants had been unduly favoured and that the order was bad in law because the plots had been granted without holding an auction. It was also contended that the power to grant the plots was vested in the Collector and not the State Government.

During the pendency of the writ petition a statement was made on behalf of the State Government that it was prepared to consider the claims of the respondents. The appellants, however, maintained that they had acquired a right to the land in terms of the order dated March 3, 1966 and that they could not be divested of those rights,

By its judgment dated March 14, 1968 the High Court allowed the writ petition, quashed the order granting plots to the appellants and directed the State Government and its officers to take appropriate action on the several claims for allotment of land. The High Court held that in view of sub•s. (2) s. 149 read with sub-s. (3) of s. 164 of the Madhya Pradesh land Revenue Code, 1954, as applied to the Vidharba region of Maharashtra, and rules 22 and 26 framed under the Code, it was not open to the State Government to dispose of the plots without holding a public auction unless there were reasons recorded in writing for doing so, and that after initially deciding not to grant the plots the subsequent decision to allot them to the appellants was contrary to law inasmuch as the claims of others had not been considered.

In this appeal, it is urged by the appellants that the High Court erred in applying sub-s. (3) of s. 164 and rule 26, and therefore in holding that the lease of the plots without auction and witliout recording any reasons was invalid.

When the Government decided to grant land to the appellants, it thought that the grant should take the form of a permanent lease in their favour.

The Collector was requested to frame suitable proposals and to submit them to th~ Govenment.

The Collector submitted a report dated November 23, 1965. suggesting the allotment of plots for the construction of shops on the footing that each' plot would measure 192 sq. ft. and its market value, worked out on the basis of recorded sale transactions, and taking into regard the commercial purpose for which the land was intended, indicated a premium of Rs. 960. He recommended further that the plots may

SUPaEMB COURT REPORTs [ i 982] j s.C.i<.

be granted without auction and in Bhumidhari right on payment of premium for constructing shops thereon for -carryin!l on business.

On March 3, 1966 the State Government made an order accordingly.

Now s. 149 of the Madhya Pradesh Land Revenue Code 1954 provides:

"149. (I) Subject to rules made under this Code, land belonging to the State Government, not beingland hereinafter mentioned in sub-section (2), shall be disposed of in Bhumidhari or Bhumiswami rights by the Deputy Commissioner who may require payment of a premium for such right or sell the same by auction.

(2) The land referred to in sub-section (11 shall be the following, namely :-

(a) land situate in the bed of a river of a tank ;

(b) land reserved for communal purposes such as common grazing ground and cremation grounds;

(c) 'land given out on favourable terms for the promotion of religious, charitable, educational, public or social purposes;

(d) land given out to persons on the condition that it shall be used only for grazing cattle;

(e) land given out for temporary purposes or for limited periods or for mining and purposes subsidiary thereto or for industrial or commercial purposes;

(f) land given out to persons on favourable terms for rendering service as a kotwar;

(g) any other may, by specify."

land which the State notification issued in Government this behalf,

Section 164 of the Code may also be set forth :

• -4j

I I ..

I ,-. . .......

"164. (1)

PARASRAM v. RAM CHAND (Pathak, J.) 29j

Every person who holds land from the State Government or to whom a right to occupy land is granted by the State Government or the Deputy Commissioner and who is not entitled to hold land as a tenureholder shall be called a Government lessee in respeet of such land .

(2) The Government lessee shall, subject to any express provision in this Code, hold his land in accordance with the terms and conditions of the grant which shall be deemed to be a grant within the meaning of the Government Grants Act, 1895 .

(3) The State Government or the Deputy Commissioner may, subject to rules made under this Code, dispose of the right to occupy the land specified in sub-section

(2) of section 149 on payment of a premium or by D auction or on such terms and conditions as may be prescribed."

It is apparent that the grant cannot be attributed to clause (c) of sub-s. (2) of s. 149. The land was disposed of in Bhumidhari right.

E Moreover, it was not given on favourable terms to the appellants; the market value of the plots was taken for fixing the premium. From the nature of the grant, it is clear that action under sub-s. (I) of s. 149 was intended. Now Part III of the Notification No. 1118-1832·55-XXVIII dated May 22, 1956 sets forth the rules framed with reference to sub-section (I) of s. 149. These rules pro- F vide for the grant of Bhumiswami and Bhumidhari rights in nazul land for dwelling houses and ancillary purposes. Rule 24 defines the expression "Nazul Land" to mean land belonging to the State

Government which is used for building on, or for roads, markets and other public purposes. Rule 26 applies the provisions of rules 18 to 36 contained in Part V of the Notification No. I I J 9. J 832-55- G XXVIII dated May 22, 1956 to the disposal of nazul land under Part Ill. The provise to rule 26 declares that where nazul land is put to auction it should normally be i; ranted in Bhumiswami right, and where it is disposed of without auction it should normally be granted in Bhumidhari right.

Rule 22 of Part V defines the power

. H of the State Government and of the Collector to dispose of nazul plots with or without auction. Rule 22 provides :-

294 SUPREME coi.JkT REPoRTS

( J 982) 3 S.C.R.

"22. Power to dispose of nazul plots with or without auction shall be exercised in accordance with these Rlues-

(I) by the State Government in the case of-

(i) plots of which the freehold market value is not Jess than Rs. 5,000;

(ii) plots within the limits of the Municipal Corporation of the City of Nagpur, whether or not included in the Schemes of Nagur Improvement Trust;

(iii) plots reserved for specific purposes under rule 20;

(iv) strips of land not being 1ndependent plots to be settled with the occupants of adjoining land where the freehold value of the strip is not less ihan Rs. 5,000;

(v) small strips of land adjacent to occupied plot, which cannot be disposed of as a separate site and in respect of which there is a difference of opinion betvyeen the Collector and the Officer-incharge, Town Planning and Valuation;

(vi) independent plots not included in the approved lists where there is a difference of opinion between the Collector and the Officer-in-charge, Town Planning an<;} Valuation;

(vii) plots granted without auction.

(2) by the Collector, in case of the other plots."

Sub-rule (I) of rule 26 in Part V declares:-

"26. (I) . Leasehold rights in nazul land shall be disposed of by public auction except when in any particular case the

State Government or as the case may be, the Collect\lr thinks for reasons to be recorded in writing that there is good reast>n for granting the land without auction."

PA!l.ASRAM i•. 11.AM t!IANI> (Pathak, J) 29~

lt seems indisputable that under the Rules as a general principle leasehold rights in nazul land are to be disposed of by public auction. If in any particular case the State Govern ment or, as the case may be, the Collector considers that there is good reason for granting the land without auction the reasons must. be recorded in writing. The existence of good reason for departing from the general principle, and the recording of the reason in writing are essential prerequisites which must be satisfied before leasehold rights are granted without auction.

It is pointed out that under clause (vii) of sub-rule (I) of rule 22 the State Government is empowered to dispose of nazul plots without auction. We have no doubt it can do so, but only after full compliance with sub-rule (l) of rule 26. The sub-rule (I) controls the power of the State Government conferred by clause (vii) of subrule (I) of rule 22. To hold otherwise would be to confer an arbitrary power on the State Government to dispose of nazul plots.

It would be in the absolute discretion of the State Government to

decide whether nazul plots should be granted with auction or with D out auction. If that construction is accepted, it is clear that sub-rule (I) of rule 26 would be negatived. The only reasonble construction, it seems to us, is to read the two provisions together.

In the present case there is no evidence that the State Government has recorded any reasons in writing for preferring the mode of disposing of the land without auction and we are not satisfied that it had good reason for favouring that mode.

In the circumstances the grant of land to the appellants has been rightly quashed by the High Court.

There is also sufficient justification in the _grievance of the respondents that the State Government did not .!onsider the claims of other persons, .including the respondents, when making an allot ment of the plots. The State Government had decided earlier, as a matter of policy, not to allot nazul land to displaced persons, and pursuant to that decision all the applications for allotment were rejected. The applications were not rejected on the merits of the respective claims set out therein. Subsequently when the State Government made an allotment of the plots to the appellants, it was

consequent to a decision which analytically must be regded as a composite of two decisions, one, a policy deision to throw open

SUPREME COUR1 REPORTS (J982j 3 S, C, R.

the land to allotment in reversal of the earlier policy and, two, to allot the land to the appellants. It will be remembered that the applications of the respondents for allotment of plots were rejected on the.ground that the land was not available for allotment. That was a policy decision. When it was reversed, it was incumbent on the State Government to reconsider those applications or to notify that the land was available for allotment and to invite fresh applications in that behalf. It was not open to the State Govenment to allot the plots to the appellants in disregard of the claims of others who had also applied for allotment.

In quashing the order granting plots to the appellants and directing the State Government or its appropriate officers to consider .t,· the several claims for allotment the High Court, in our opinion, did that which was plainly right.

The appellants say that the respondents must be taken to have accepted the rejection of their applications for allotment, and it was only the appellants who pursued the matter and obtained a reversal of the order of the Government and therefore the appellants alone were entitled to the allotment of plots. The submission would have had force but for the circumstance that the State Government effected what was a change of general policy.

The change of policy altered the situation completely, and all the claimants were entitled to the benefit of that change. By adopting the new policy, the State Government must be taken to have declared that the land was now open to allotment to the claimants who were found most deserving.

There were several applicants for allotment, and a selection had to be made.

It cannot be contended, as indeed it is urged before us, that the appellants constitute a distinct and separate lass from the respondents only because the appellants agitated against the rejection of their applications . While the respondents did not. ·

The controversy which remains is whether it is the State Government or the Collector who has power to dispose of the plots in view of their market value.

That is a matter on which we need express o opinion, having regard to the quashing of the entire allotment proceeding from its inception .. It will for the Govern

• ••

PARASHRAM v. RAM CHAND (Pathak, J.) 297

ment or the appropriate authority to decide what should be the A nature of the rights to be conferred on the allottees and, therefore, what should be the premium to he fixed.

In the result, the appeal is dismissed with costs.

N.V.K.

Appeal dismissed.

PARASHRAM THAKUR DASS & OTHERS

RAM CHAND S/O SHRI RADHUMAL & OTHERS

February 17, 1982

R.S. PATHAK

0. CHINNAPA REDDY, JJ.

Madhya Pradesh Land Revenue Code, 1954

Ss. 149(2) and 164(3)

section 149

section 164

Madhya Pradesh Land Revenue Code, 1954

section

149

Bhumidhari

section 149

A Naunit Lal

A.G .. Ratnaparkhi

M.N. Shroff

PATHAK

Nagpur Bench

Yeotmal Town

Y eotmal

West Pakistan

India

May 16, 1964

February 27, !

Nagpur Division

June 28, 1965

Yeotmal

March 3, 1966

ARASRAM V

They urged that no reason-

• I /-
.:.-
~-

l>ARASRAM V, RAM CHAND (Pathak, J.) 291

 able opportunity had been given to them to press their claims for grant of plots after the Government had reversed its earlier decision not to grant land, that the appellants had been unduly favoured and that the order was bad in law because the plots had been granted without holding an auction.

RAM CHAND

March 14, 1968

s. 149

s. 164

Madhya Pradesh land Revenue Code, 1954

Vidharba

Maharashtra

s. 164

November 23, 1965

s. 149

Madhya Pradesh Land Revenue Code 1954

Section 164

Government Grants Act, 1895

section 149

s. 149

s. 149

May 22, 1956

s. 149

Bhumiswami

Bhumidhari

Pathak

N.V.K.


RANDHIR SINGH

UNION OF \_NOIA & ORS.

February 22, 1982

(0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL !SLAM, JJ.]

Constitution of India, Articles 14, 19 and 3~( d) "Equal pay for equal work" is not an abstract doctrine but one of substance.

The petitioner is a driver constable in the Delhi Police Force under the Delhi Administn1tion. The scale of pay in the Delhi Police Force is for nonmatriculate drivers Rs. 210-270 and for m.atricuh.te drivers 225-308. The scare of pay of a driver in the Railway Protection Force is Rs. 260-400. The scaie of pay of drivers in the r..onsecretariat offices in Delhi is Rs. 260-6-326~EB-8-351), while that of Secretariat offices in Delhi is Rs. 260-6-290-EB-6-326-8-366-EB-8-8-8-390-10

400. The scale of pay of drivers in the office of the Language Commission is Ri. 260-300 while the drivers of heavy vehicles in the Fire Brigadge and the Department

of Light House is Rs. 330-480. The petitioner and other driver constabl1es made a representation to the authorities that their case was omitted to be considered separately by the Third Pay Commission and that their pay sca1es should be the same as the drivers or heavy vehicles in other departments. As their claims for better scales of pay did not meet with success, the present application has been filed by the petitioner for the issue of a writ under Article 32 of the Constitution.

Allowing the petition, the Court

HELD: 1:1. The petitioner was appointed as a driver in the Delhi Police Force. After his discharge from the army question of his employment as a drive:.- in Delhi Police Force was considered, he was asked to appear for a test of proficiency in driving, directed to produce a Civil Heavy Tran.sport Driving Licence, selected thereafter as a driver in Delhi Police Force under the category "Employment of Ex-serviceman in Delhi Police as N.T. Driver (Contable)." He was desigoate..:i as Constable, because for the purposes of th~ discipline of the Force and appointment as driver in the Ddhi Police Force he had 10 be made a member of the Delhi Police Force and bad to be asigned a rank in the Force.

The investiture of the petitioner with the "powers, fun,; tion-; and privileges of a police Officer" was a consequence of his becoming a member of the Force. '

[302 H, 303 A-CJ

1:2. The petitioner and other drivers in the Delhi Police Force perform the same functio1':s and duties as other drivers in the service of the Delhi Administration and th~ Central Government. If anything, by reason of their investiture

with the "power, f11nctions and privilegeS of a police Officer'', their duties and

sponsibilities re more ardqous. 'J'.he clarifi, catioQ. that the driver$ of the

RANDffiR SINGH v. UNION OF INDIA 299

Delhi Police Force and the other drivers belong to different departments and that the equal pay for equal work is not a prinCipTe which the courts may recognise and act upon is irrational. [306 A, B, C, DJ

2:1. No doubt, equation of posts and equation of pay are matters primarily rOr the Executive Government and expert bodies and not for the courts, but where all thing~ are equal that is, where all relevant considerations are the san1e, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank alld the nomenclature is the same. [303 G-H, 304 A]

3:1. The principle "equal pay for equal work" is not an abstract doctrine but one of substance. There can be and there ar'e different grades in a service., with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue fqr officers of the lower grade. The higher qualifications or experience based on length of service, reasonably sustain the classification of the fficers into two grades with di'ffer.ent scales of pay. The principle Or equal paf for equal work would be an abstract doctrine not attract ing Article 14 if sou11ht to be applied to them. [304 C-E]

3:2. It is true that the principle of "equal pay for equal work" is not ex pressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Article 39 (d) of the Constitution proclaims "equill pay for equal work for both men aud women" as a Directive Principle of State Policy. "Equal pay for equal work for both men and womn" means equal pay for equal work for every one and as between the sexes. Directive Principles have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Consti tution enjoins the State not to deny anyfperson equality before the law or the equal protection of the laws and Article 16 declares that there shall be equa1ity of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconCerned with the work they do and the pay they get. To them the equality clauses will have some substance if equ1t work means equal pay.

Questions concerning wages and the Hke, mundane they may be. are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the coD; stitutioo declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'to each according to his need', it must at ]east mean 'equal pa f equal work'. L304 E-H, 305 A-DJ , Y or

3:3. From a construction of Articles 14 and 16 in the light of the Pre • ble and Article 39(d), it is clear that the principle ·"equal pay for equal work~~ deducible from !hose Articles and may be rrperly applied to cases of uncqu:~

scales of pay based on no classification or irration'al clasification though those drawing the different scales of pay do identical work under the same employer.

[305 G-H, 306 A]

Kishori Lal Mohan Lal Bakshlv. Union of India, A.J.R.' 1962 S.C.1139, distinguished.

ORIGINAL JuRJ.IDICTION : Writ Petition No. 4676 of 1978,

(Under article 32 of the Constitution of India)

M.S. Ganesh for the Petitioner.

N.C. Talukdar, R.N. Poddar and Miss A. Subhashini, for the Resp on dent.

.The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. 'Equal pay for equal work' is not a mere demagogic slogan. It is a constitutional gqal capable of attainment through constitutional remedies by.the enforcement of constitutional rights. So the petitioner claims; so the petitioner asserts.

Article 39 (d) of the Constitution proclaims, as a Directive Principle, the Constitutional goal of 'equal pay for equal work for both men and women'.

Articles 14 and 19 guarantee respectively the funda• mental rights to equality before the law and equality of opportunity in the matter of public employment and Art. 32 provides the remedy for the enforcement of the fundamental rights. So the petitioner has invoked the jurisdiction of this Court under Art. 32 and bas asked us to direct the respondents to give him his due, the same as they have given others like him.

True, he is the merest microbe in the mighty organism of the State, a little clog in a giant wheel.

But, the glory of our Constitution is that it enables him to directly apRfoach the highest Court in the land for redress. It is a matter of no little pride and satisfaction to us that he has done so.

Hitherto the equality clauses of the Constitution, as other articles of the Constitution guaranteeing fundamental and other rights, were most often invoked by the privileged classes for their protection and advancement and for a 'fair and satisfactory' distribution of the buttered leaves amongst themselves.

Now, thanks to the rising social and political consciousness and the expectations roused as a consequence, and the forward-looking posture of this Court, the underprivileged also are clamouring for their rights and are seeking intervention of the Court with touching faith and confidence in the Court. The judges of _the Court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller

than to the guest of the five star hotel.

UNDHIR SINGH v. UNION OF INDIA (Chinnappa Reddy, J.)

:JOI

The petitioner m a Driver-Constable in the Delhi Police Force under the Delhi Administration and be demands that bis scale of pay should atleast be the same as the scale of pay of other drivers in the service of the Delhi Administration.

The scale of pay of a Driver-Constable in the Delhi Police Force is Rs. 210-270 in the case of non-matriculates and Rs. 225-308 in the case of matriculates.

The scale of pay of a Driver in the Railway Protection Force is Rs. 260-400.

The scale of pay of drivers in the non-Secretariat offices in Delhi is Rs. 260-6-326.E-B-8-350. The scale of pay of drivers in the Secretariat offices in Delhi is Rs. 260-

6-290-EB-6-326-8-366-EB-8-8-8·390- I0-400.

The scale of pay of drivers in the office of the Language Commission is Rs. 260-350. The pay scale of drivers of heavy vehicles in the 'f'.ire Brigade and the Department of Light House is Rs. 330-480. The case of the petitioner is that be discharges the same duties as the rest of the drivers in the other offices; in fact he claims that he discharges more onerous duties than the others.

He complains that there is no reason whatsoever. to discriminate against the petitioner and other driver- Constables merely because be and bis ilk happen to be described as constables as indeed they are bound to be so described, belonging as they do to the Police Force.

It appears that the Third Pay Commission considered the claims of all drivers as a common category under the head "the pay scales appropriate for drivers of motor vehicles operating on roads .

After considering the qualifications etc. possessed by drivers the Commission proposed pay scales for various categories of drivers. like drivers of light motor vehicles, drivers of heavy motor vehicles, drivers employed in organisations with large fieet of vehicles, drivers of staff cars etc. The pay scales were professed to be fixed with reference to the qualifications for driving, the nature and the arduousness of the duties and responsibilities, the non-availability of

adequate promotional avenues and such other usual considerations.

The Pay Commission, however, while considering the question of the scales of pay of drivers separated the case of constable-drivers' on the ground that their case would be considered along with the cases of other police personnel. The grievance of the petitioner is that while considering the question of the scales of pay of the police

personnel, the Pay Commission failed to considr the drivers as a separate category and ignored the special considerations which prevailed in tile case of drivers in other departments and which should have, tilerefore, prevailed. ill ti!~ ~Ilse of driver-consabl.es 11Isq,

The drivers-constables were not only required to possess heavy transport driving licence, they were further required to undergo a test of proficiency in driving before they were appointed as ddverconstables in the police force. Their duties were no less arduous and their responsibilities no less heavy than the duties and' responsibilities of drivers in other departments. Their hours of work were long and inconvenient and there was, constant exposure to security risks.

The petitioner and other driver-con stables made a representation to the authorities that their case was omitted to be considered separately by the Pay Commission and that their scales of pay should be the same as the drivers of heavy vehicles in other departments.

As their claims for better scales of pay did not meet with any success, the present application has been filed for the issue of a Writ under Art. 32 of the Constitution.

Among the submissions made on behalf of the respondents, it was suggested that the petitioner was no more and no less than a constable of the Delhi Police Force and that there was no such category of Drivers in the Delhi.Police Force. The hollowness of this submission is exposed by a reference to the facts relating to the individual petitioner. The petitioner who was an ex-gunner (driver) in the artiliary corps of the Indian Army and who was experienced in the driving,_ operation and maintenance of jeeps, trucks and heavy armoured vehicles was allowed to retire from the Army on compassionate grounds. He held an Army driving licence as also a Civil Heavy Transport Driving Lice.nee. After he was discharged from the Army his nominal roll was forwarded by the Director General Resettlement, Ministry of Defence to the Commandant, Delhi Armed Police, Delhi. The question of his employment as a driver in the Delhi Police Force was considered and he was informed that a test of proficiency in driving would be held. He was required to produce his Civil Heavy transport driving licence at the time of the test. It is of interest to note that the subject of the communication sent by the Delhi Police establishment to the petitioner was "Employment of ex-servicemen in Delhi Police as N.T. Driver (Const)". He appeared at the test.

By a communication dated March 29, 1968, he was informed by the Commandant, Delhi Armed Police, Delhi that his name had been "approved for enlistment as driver in the Delhi Police". Thereafter a certificate in the prescribed form was issued to him vesting him with the. powers, functions and privileges of a police , Officer.

It is clear and it cannot be seriously disputed that th(petitioner wa~ appointQd 11s a driver in . the Delhi

RANDHIR SINGH v. UNiON OF iNDIA (Chinnappa Reddy, I.) 303

Police Force.

He was designated as constable, because, for the purposes of the discipline of the Force and appointment as driver in . the Delhi Police Force, be bad to be made a member of the Delhi

Police Force and had to be assigned a rank in the Force. The investiture of the petitioner with the "powers, functions and privileges of a police Officer" was a consequence of his becoming a member of the Force.

The main defence taken by the respondents is, in the words of the deponent of the counter-affidavit, as follows :

"It is subfoitted that there can be no comparison between the different departments of the Government of India for the purpose of fixation of pay scale. A pay scale has been fixed upon consideration of various factors. The pay scales of the drivers of the Delhi Police bas been fixed after duly considering all the circumstances. The drivers in the other departments are not similarly situated as the petitioner and there is no question of any hostile discrimi nation. It is, however, denied that the driveres have been treated as a separate class. It is also denied that the designation of the petitioner is N. T. Driver (Constable)'

The counter-affidavit does not explain how the case of the drivers in the police force is different from that of the drivers in other departments and what special factors weighed in fixing a lower scale of pay for them. Apparently in the view of the respon; derits, the circumstance that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of their identity of their powers duties and responsibilities. We cannot accept this view. If this view is to be stretched to its logical conclusion, the scales of pay of officers of the same rank in the Government of India may vary from department to department notwithstanding that their powers duties and responsibilities are identical. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we-must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform_ dissimilar functions and the powers,

304 SUPREME COURT REPORts [1982)3 s.C.lt.

duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of .'dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.

Our attention was drawn to Binoy Kumar Mukerjee v. Union of India('), Makhan Singh v. Union of India & Ors(')., where reference was made to the .observations of this Court in Kishori Mohan/al Bakshi v. Union of India(') describing the principle of equal pay for equal work as an abstract doctrine which had nothing to do with Art. 14.

We shall presently point out how the principle, ''i:qual pay for equal work", is not an abstract doctrine but one of substance.

Kishori Mohan/al Bakshi v. Union of India is not itself of any real a'Sistance to us since what was decided there was that there could be different scales of pay for different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length ,, f service, reasonably sustain the classification of the officers in lo two grades with different scales of pay.

The principle of equal pay for equal work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them.

It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims ''equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes.

Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental r.igbts as a matter of interprelation.

Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under

(I) l.L.R. [1973] 1 Delhi 427. (Z) I.L.R. [1975] 1 Delhi 227.

(3) A.l.R. 1962 S.C. 1139.

' 1

RANDHlR slNOH v. UNION OF INblA (Chinnappa 1?.eddy, /.) 30S

the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay.

Whether the special procedure prescribed by a statute for trying alleged robber barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other ques tions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that" the equality clauses of the Constitution have any signi ficancc to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'To each according to his need', it must atleast mean 'equal pay for equal work'. The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g, Section 59 of ihe Hungarian Labour.

Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code.

Indeed this principle bas been incorporated in several western labour codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic; and clause 7, Section 123 of the Mexican Constitution, the principle is given U11iversal significance (vide: International Labour Law by Istvan Szaszy p. 265). The preamble of the Constitution of the International Labour Organisation re cognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Art.39(d) we ate of the view that the principle 'Equal pay for Equal work' is deducible from those Article and may be properly applied to cases of unequal scales of pay based .

siJi>REMil CoiJltt ltEPOltTS

(1982] 3 S.C.R.

A on no classification or irrational classification though these drawing the different scales of pay do idential work under the same employer.

There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with . the 'powers, functions and privileges of a police officer', their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver 0constabies of the Delhi Police Force perform no less arduous duties than drivers in. other departments, ,_....... it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ?

There is none.

The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments ahd that the principle of equal pay for equal work is not a principle which the Courts may recognise and act upon.

We have shown that the answer is unsound. The clarification is irrational. We, therefore, allow the Writ Petition and direct the respondents to fix the scale of pay of the petitioner and the drivers-constables of the Delhi Police Force atleast on a par with that of the drivers of the Railway Protection Force. The scale of pay shall be effective from 1st January, 1973, the date from which the recommendations of the Pay Commission were given effect.

S.R.

Petition allowed.

SINGH

UNION OF \_NOIA & ORS

February 22, 1982

0. CHINNAPPA REDDY

A.P. SEN

Constitution of India

Articles 14, 19 and 3

Delhi

Third Pay Commission

Article 32

Ddhi Police Force

Delhi Police Force

Delhi Police Force

Article 14

Article 39

Article 14

Article 16

India

Articles 14 and 16

Article 39(d)

Kishori Lal Mohan Lal Bakshlv

article 32

Constitution of India

M.S. Ganesh

N.C. Talukdar

R.N. Poddar

A. Subhashini

Article 39

Articles 14 and 19

Art. 32

Art. 32

Chinnappa Reddy

Art. 32

Delhi.Police Force

Ministry of Defence

Delhi Armed Police, Delhi

Delhi Police

March 29, 1968

Government of India

Art. 14

Art. 14

Art. 39(d)

Art. 14

Art. 16

A.l.R. 1962 S.C. 1139

State

Section 59

Section 111

Section 67

Section 40

Section 33

Section 31

Book I of the French Code

Section 3

clause 7

Section 123

Istvan Szaszy

Articles 14 and 16

Delhi Administration

Central Government

1st January, 1973


MUNICIPAL COUNCIL DAMOH

VRAJ LAL MANILAL & CO. & OTHERS.

February 23, 1982

[V.D. TULZAPURKAR AND AMARENDRA NATH SEN, JJ.]

Central Provinces & Berar Municipalities Act, 1922-Ru/es made under the Act-Rute27(b) of the Octroi Ru/1s-Octroi duty paid on raw material imported into the municipality for manufacture of bidis;_Manufactured bidis exported out~ side ihe municipal limits-Refund, 11 allowable uncf.er rule 27(b).

Words & phrases: "manufacture" and "manufacturing process''-Meaning of.

The res"pondents manufacture and selJ bidis in the state. At the time of import of tobacco and other raw materials into the municipal Jimits for the manufacture of bidis they paid oc:troi duty payable under the rules. Their claim for refund of octroi duty on the raw materials utilised for the bidis which they manufactured and exported outside the municipa1 limits was rejected by the muni cipal counCil.

Rejecting the appellant-council's contention that the benefit of rule 27(b) of the Rules was not available to the respondents fo! the reason that the exported goods (bidis) were not the same or identical as the imported raw materi8l'J the Sub-Divisional Officer allowed the respondent's appeal.

Io revision the High Court upheld the order of the Sub-Divisional Officer.

In appeal to this Court it was contended tlrat refund is available under rule 27(b) only where even after undergoing the manufacturing process the impor ted article retained its essential character as sch ar!icle and the same was exported outside the municipal limits. (2) The respondents we~ not entitled to refund as they failed to satisfy the committee that the san1e or identical goods had been exported.

Dismissing the appeal,

HELD : I (a) Rule 27(b) of the Octroi Rules in terms provides for refund of octroi paid on imported. raw materials when such raw material is actualJy used within the municipal limits for manufacturing the exported articles. Clause

(b) of this rule itself speaks of the raw materials being "used in the manufacture"

SUPREME CC)URt REPOR'rS [19821 s.c.a.

so that use. or consumption which a manufacturing process entails was present to the mind of the framers of the rule when they provided for the refund on the export of finished goods manufactured within municipal limits. [313 F-H)

(b) The well settled connotation of ''manufacture" and "manufacturing process" is that as a result of undergoing the process, a distinct commercial commodity .different from the raw materials, comes into existence. Therefore B the expression 'manufacture' occurrine in rule 27(b) cannot be given a limited

meaning as suggested by the appellant. [313 H, 314 A-BJ

2. The proviso to the rule is not attracted to a case of manufactured goods f.alling under clause (b). The proviso is applicable to cases where there is an export of the importc~ goods themselves without subjecting them to any manu factoring process. It is in such cases that in order to claim refund the exporter has to satisfy the committee that the Same goods on which import duty had been paid were bein_g exported. The proviso is not a proviso to clause (b) at all but will be applicable to the other parts Of the rule. [314 C, D, El

3. It is not just to permit the appellant to raise the plea of limitation in the case becallse at one stage it acquiesced in the trial court's finding and did not raise the question in appeal before the High Court. While asking for a certifi- D cate for appeal the appellant did not raise the question of limitation before the High Co)lrt nor did it include the point of Jimitatioo in the memo of appeal filed in this Court. The point raised needs investigation into facts. [316 .F-G]

CIVIL APPELLATB JURISDICTION : Civil Appeals Nos. !048 of 1970 & 845 of 1971.

Appeals by certificate from the judgment and decree dated the 11th March & 15th November 1969 of the Madhya Pradesh High Court (Jabalpur) in Misc Petition No. 96 of 1959 and in First Appeal No. 44 of 1966 respectively.

AND

Civil Appeals Nos. !047, 1048 & 1049 of 197!.

Appeals by special leave from the judgment and decree dated the 17th April, 197 l of the Madhya Pradesh High Court at iabalpur in Second Appeal Nos. 415, 416 & 417 of 1966 respectively.

D.V. Patel, S.S. Kh, induja and C.L. Sahu for the Appellants in all the Appeals.

Dr.Y. S. Chitale)nd Rameshwar Nath for Respondent No. J in Civil Appeals Nos. 1048/70 & 845 of 1971.

MtJNtCIPAt COtJNClt v. vllAl LAL (Tulzapurkar, 1.) 309

Rameshwar Nath for Respondent No. I in Civil Appeals Nos. 1047-1049 of I 971.

Gopal Subramanium and S.A. Shroff for Respondents Nos. 2 & 3 in all the appeals.

The Judgment of the Court was delivered by

TULZAPURKAR, J. The aforesaid five appeals, the first two on a certificate granted by the Madhya Pradesh High Court and the last three by special leave granted by this Court, raise a common question in regard to refund of octori duty collected by the appellant-Council from the respondent firms and are, therefore,' disposed of by common judgment. The principal question raised in these appeals relates to the proper construction of Rule 27 of the Octroi Rules of Damoh Municipal Council (the appellant) framed in exercise. of powers conferred by ss. 7 I, 76 and 85 of the Central Provinces & Berar Municipalities Act, 1922-which Rules were continued in operation even after the coming into force of the new Act, the Madhya Pradesh Municipalities Act, 1961 and the question arises in these circumstances :

The two respondent firms in the two sets of appeals (M/s. Vraj Lal Manila! & Co. and M/s. Prabhudas Kishoredas) carry on business of manufacturing and selling bidis in Damoh and other cities in Madhya :Pradesh and for that purpose they import tobacco and other raw material into the Municipal limits of Damoh city and after manufacturing bidis out of such imported raw mater.ial they export their finished product (bidis) outside Damoh Municipal limits. The respondents' case was that at the time of import of tobacco and other raw material into the municipal limits of Damoh they paid octroi duty as per Octroi Rules of the appellant Council and after utilising the said raw material for preparing bidis when they exported the manufactured bidis outside the limits of the appellant Council, they were entitled to a refund of the octroi duty paid by them on the raw material so utilized under Rule 27 of the

' Octroi Rules but inspite of refund vouchers having been issued by the concerned official of the appellant council and inspite of having complied with the Rules and procedure prescribed in that behalf, the appellant Council refused to pay the amounts of the refund

. SUPREME COURT REPORTS

(1982) 3 S.C.R •

vouchers to them.

In Civil Appeal No. 1048 of 1970 sincethe claim for refund to the sum of Rs. 33,409.52 based on 1866 refund vouchers relating to the period from 4.12.1952 to 12.12.1959 arose under the old Act, namely, Central Provinces and Berar Mu, icipalities Act 1922, the respondent firm M/s Vraj Lal Mani Lal & Co. filed an appeal before the Sob Divisional Officer Damoh under s. 83 (1-A) of the Act against the refusal of the appellant-Council to make the refund. Apart from raising technical pleas such as .non-maintainability of the appeal, bar of limitation etc. the appellant Council resisted the claim on merits on the two grounds : (a) that since the raw material had been used or consumed in the manufacture of bidis and since the exported goods (finished products) were not the same or identical as the imported raw material on which the octroi duty had been paid no refund under Rule 27 (bl was available to the respondent firm and (b) . that the respondent firm had failed to prove to the satisfaction of the Municipal Council as required by the proviso to Rule 27 (b) that the same or identical goods were being exported on which import octroi had been paid by them. The Sub Divisional Officer by bis order dated 30th June, 1961 negatived the technical pleas of the appellant council, which order was finally confirmed by the High Court on 25th February, 1963.

The Sub Divisional Officer al.so over-ruled the defences raised by the appellant Council on merits and by his final order dated 4th April, 1964 directed that the amount of 1865 refund vouchers aggregating to

R~. 33409.52 minus the amount recovered under 19 vouchers should be refunded to the respondent firm.

The appellant Council wi; nt in revision to the State Government but the same was .dismissed on 28th September, 1968. The Sub Divisional Officer's decision as well as the State Government's order in revision were challenged by the appellant Council before the High Court by a Writ Petition (Miscellaneous Petition No. 96 of 1969) but the writ petition was dismissed by the High Court summarily and in doing so the High Court followed its earlier judgment in the case of Municipal Committee, Burhanp11r v. Allauddin Ao/ia Saheb and Co.(') where in regard to a similar refund rule obtaining in Burhanpur Municipal Committee the Court bad taken the view that "Octori duty paid on imported tendu leaves and tobacco is refundable under the provisions of Rule 25 (b) of the Rules framed under s. 85 of the Act when bidis manufactured within the limits of the Municipal

(1) 1957 MPL1 278.

....,.--..

MUNICIPAL COUNCIL v. VRAJ LAL (Tulzapurkar, J.) . 311

Committee are exported." In the remaining four matters, being Civil Appeals 845, 1047, 1048 and 1049 of 1971 the claims for refund made by the respondents in similar drcumstances were required to be prosecuted by filing civil suits against the appellant Council, inasmuch as when action was contemplated by the respon dents, the new Act, namely, Madhya Pradesh Municipalities Act 1961 had come into force and no remedy by way of any appeal to Sub Divisional Officer was available. In each of these suits the appellant Council resisted the claims for refund on merits on the same grounds mentioned above The respondents failed in their suits in the two lower courts but succeeded in second Appeals in the High Court.

ln these appeals the self-same two contentions were urged before us on behalf of the appellant-council. First, since Octroi duty is a levy on imported goods meant for use, consumption and sale thereof within the municipal limits and since the raw material (tobacco) was used or consumed in the manufacture of bidis the same or identical goods were not exported by the respondent firms and so no refund under Rule 27 (b) was available to the respondent firms.

Secondly no attempt was made by the respondent firms to satisfy the Municipal Ccmmittee that the same or identical goods had been exported as required by the proviso to Rule 27 (b).

For both these reasons it was urged that the respondent firms' claim to •efund of octr.oi should have been rejected. Counsel urged that these points did not arise and were not determined in Allaudin Saheb' s case (supra),

The admitted facts in these appeals are that the respondent firms, who carry on the business of manufacturing and selling bidis imported or brought into the municipal limits of Damoh during the relevant period tobacco and other raw material, that they paid the requisite octroi duty on such raw material on its import at the prescribed rates, that they utilised the said raw material for manufacturing bidis and they exported the finished product

(bidis) outside the municipal limits of Damoh. and it was at that stage of export of bidis that they claimed under Rule 27 (b) a

refund of octori duty paid by them on tbe raw material from the appellant Council. The question raised is whether under the said provision they are entitled to the refund of octroi as claimed by

them. Rule 27 whib deals with rfu!J~ of otroi runs thus ;

SUPREME COURT REPORTS [1982) 3 s.c.a.

"27. Refund of octroi. On the exportation of dutiable goods outide municipal limits the exporter shall be entitled to a refund of duty paid on them at the time of their import, provided that,

(a) no refund shall be given, if the amount to be refunded be less than Re. l or if the claim be made after the expiry of two months from the date of export, unless the exporter is able to explain satisfactorily the reason for the delay.

(b) the refund on the exported goods which have been manufactured within the municipal committee from imported raw materials liable to octroi, shall not exceed the octroi on the raw materials used in the manufacture, and

Provided that the exporter shall not be entitled to a refund of octroi duty unless he proves to the satisfaction of the committee that the goods brought for export belong to him and .are the same on which duty was paid by the importer in whose favour the octroi receipt is produced in

E support of the claim for refund of duty."

In support of their claim for refund the respondents obviously rely upon cl. (b) of Rule 27 under which refund is available on exported goods provided those have been manufactured within the municipal limits from out of the imported raw materials on which octroi has been paid and the clause indicates that quantum .of. refund shall not exceed the octroi duty actually paid on such raw materials at the time of their import. Counsel for the appellant, however, conterided that in its very nature octroi is a duty levied on import of goods which are meant for use, consumption or sale within the municipal limits and counsel urged that it cannot be disputed that when .raw material like tobacco is utilized in the manufacture of bidis such raw material is used or consumed in the process of manufacture and it is such finished product (bidis), a disputed commercial commodity that is being exported by the respondent-firms and, therefore, no refund under cl. (b) or Rule 27 would be available to them.

Counsel urged that the word 'manufacture' occurring in the 9lause must be given a limited meaning, that is to say, only such

MUNICIPAL COUNCIL v. YRAI LAL (Tulzapurkar, J.) 313

manufacturing process is contemplated by that clause which does not alter. or change the identity of the imported commodity and only in respect of the 'eipott of such manufactured goods the refund Would be available and not where the imported commodity gets converted into an altogether different commercial article. Counsel also invited our attention to the proviso following cl. (b) which states that the exporter shall not be entitle~ to refund of octroi duty unless he proves to the satisfaction of the committee that .the goods brought for export are the same on which duty had been paid by the importer and according IQ Counsel the 'bidis' cannot be said to be the same goods on which the respondent-firms could be said to have paid the duty. In other words refund is available under cl.

(b) in cases where even after undergoing the manufacturing process the imported article or commodity retains its essential character as such article or commodity and the same is exported outside the municipal limits. It is not possible to accept the aforesaid construction sought to be placed on cl. (b) of Rule 27 of the Octroi Rules by the appellant's counsel for reasons which we shall presently indicate. In the first place, though it is true that octroi by its nature is a lev) on import within the municipal limits of articles or goods meant for use, consumption or sale therein that does not prevent a Municipal Coullcil from framing a rule either granting exemption from that duty or refund of such duty after its collection in cases of certain type of use or consumption of the imported articles or goods for certain purposes. Secondly, a Municipal Council may do so for achieving certain objectives like increasing industrialisation by encouraging manufacturing activities within its limits. Clearly the avowed object of Rule 27 (b) appears to be of this nhture for in terms it provides for refund of octroi paid on imported raw materials when such raw-material is actually used within the municipal limits for manufacturing the exported article and it is in light of this objective that the said rule will have to be interpreted. Looked at from this angle it will be difficult to accept the narrow or limited construction of the word 'manufacture' appearing in cl. (b) as is suggested by Counsel for the appellant and the same could not have been intended by the framers of the rule.

Further clause (b) itself speaks of the rav; materials being "used in the manufacture" so that use or consumption which a manufacturing process entails was present to the mind of the framers of the Rule when they provided for the refund on the export of finished goods manufactured within the municipal limits. Moreover, tqe well-settled connot!ltion of the

SUPRJ!ME COURT REPORTS (J982J 3 s.c.R.

concept of 'manufacture' and 'manufacturing process' is that as a result of undergoing the process a distinct commercial commodity different from !he raw materials comes into existence; it is difficult

to visualise degrees of manufacture as suggested by counsel for the appellant and in any case none could be attributed to the framers of the Rule. It is, threfore, not possible to accept the contention that the expression "manufacture" occurring in cl. (b) of Rule 27 should be. given a limited meaning as is suggested.

Turning to the proviso on which strong reliance was placed by the counsel for the appellant, it seems . to us that the proviso by its very terms is not attracted to a case of manufactured goods falling under cl. (b). If

cl. (b) confers the benefit of refund of octroi duty on the export of goods manufactured out of raw material then it is difficult to appreciate how the exporter will be able to satisfy the Municipal Committee that the exported goods are the same or identical on which duty bas been paid, for admittedly the exported goods are the finished product and no import duty is paicl thereon by the exporter. The proviso in our view is applicable to cases where there is an export of the imported goods themselves without . subjecting them to any

manfacturing process and it is in such cases that the exporter bas to satisfy the Committee that the same goods on which import duty has been paid are being exported which would entitle the exporter to claim a refund; in other words it is not a proviso to cl.

(b) at all but will be applicable to the other parts of the Rule. It is thus clear to us that when raw materials like tobacco etc. were imported by the respondent-firms within the limits of Damoh, on which they paid octroi-duty and when they manufactured bidis out of such raw.materials and exported the same they were entitled to get refund to the extent of quantum mentioned in cl. {b) of Rule 27.

In view of our aforesaid conclusion that the proviso is not applicable to cases of manufactured goods falling under cl. (b) of the rule the second contention urged by the Counsel for the nppel-

1 lant that the respondent firms were not entitled" to refund as they

failed to satisfy the Municipal Committee that the same or identical goods had been exported does not .survive.

That apart, the High Court has on a conspectus of the Octroi Rules came to the conclusion and in our view rightly, that . the Octroi, Superintendent is rs

ponsible for the proper ad!llinistratioQ of thy Otroi Depart!lleQt iQ

MUNICIPAL COUNCIL v. VRAJ LAL (Tulzapurkar, J.) 315

all its branches which necessarily includes that it is he who should be satisfied as to the identity of the goods that are to be exported or that are utilized in the manufacture of goods which are to be exported.

The last contention sought to be urged on behalf of the appel !ant-council before us related to the bar of limitation to the responc dents' claim arising under section 319 (2) of the Madhya Pradesh Municipalities Act, 1961 and counsel fairly stated that this arises only in Civil Appeal No. 845 of 1971. The facts in this behalf are these: Civil Suit No. 1-B of 1964, out of which the aforesaid appeal arises, was filed by the respondent-firm M/s Vraj Lal Manila! & Co. on 7.5.1964 claiming refund in respect of goods exported during the years 1959-1964; in other words, part of the claim from 1959 to 31st January, 1962 arose under 1922 Act while the claim pertaining to the period from 1.2.1962 to April 1964 arose under the 1961 Act, which came into force from 1.2.1962. The trial Court as well as the High Court took the view that non-payment of refund under the 1922 Act could be agitated only by way of an appeal under section 83 and other remedies were barred under s. 84 of the Act and, therefore, tliat part of the respondent's claim was dismissed as being not tenable but both the Courts held that non-payment of refund after 1.2.1962 could be agitated by a suit and the same was tenable On the question of limitation the trial Court held that that part of the claim was not barred but since it had negatived the respondent's claim for refund on merits it dismissed the respondent's suit entirely but the High court, which reversed the trial Court's view on merits allowed the respondent's claim in respect of refund vouchers which had• been certified and presented after 1.2.1962. Since, however, it was not possible for it to sort out the refund vouchers which had been certified the High Court by its judgment and decree dated 15.12.1969 remanded the matter to the trial Court for determining the amount payable to the respondent-firm.

Upon remand the Ilia!

Court on the basis of statements made by the parties passed a decree in respondent's favour for Rs. 21,023.53 with interest thereon @ 4% and this decree was drawn up on 23.4.1970.

Section 319 (2) of the 1961 Act runs thus;

"Every such suit shall be dismissed unless it is instituted within 8 months from tqe <ll\te of the awrual of thq alleged cause of action."

- . - ' '

SJ.IPREMB COURT REPORTS ' .

(1982) 3 S.C.R.

-··~---•-C --·-- -

Relying upon this provision counsel for the appellant urged that since the suit had been filed on 7.5.1964 _the respondent's claim for refund during 8 months prior to 7.5.1964 would be within limitation but the rest of the. claim from-1.2.1962 to 7.9.1963 would be ·-barred by limitation and to that extent the decree in favour of the n respondent-firm deserves to be modified

,_D

. We are not inclined. to entertain' this cont.intion soght to be urged by counsel for the appellant before" us for.mi)re than one reason. It is true that . this bar ofJimitation under:.s. 319 (2) was pleaded by -the appellant council in. its written statement and an. issue thereon was also raised . t the trial but the trial , Court held that the claim arising" under_ the 'new .Act. after 1.2.1962 was not barred by limitation. because cause . of action arose, on. 24.9.1963 when"there_-was. refusal. io pay or accede to the notice of demand but when-th~ matter was carried in appeaf to the High. Court by !lie respondent firm against the dismissal of their claim 0 n merits and the . High Court reversed the trial Court's view on merits and held that the plaintiffs' claim for the period subsequent to 1.2.1962 was liable to be decreed, this point of limitation arising under s. 319 (2) was neither raised nor. pressed before , the High Court. No contention was" raised that the refusal to pay on 24.9.1963 did not give rise to the cause_ of action but th.at it arose. on" dates when goods were exported and refund vouchers ·.were presented or certified. Had it ·. been . pres; ed the High Court would have, while emanding the matter given appropriate directions to .the trial Court in that behalf. This shows that the appellant council acquiesced in the trial Court's finding on the question _of limitation, namely,. the cause of action : -arose on 24.9.1963. Secondly, while applying for a certificate from

 the High Court for appeal to this Court the appellant-Council sought _the certificate on points touching the merits of the claim and not on the question of limitation. Further . in the Memo of Appeal filed in . this Court the grounds do not include the point of limitation. Lastly the point raised cannot be said to . be a pure q11estion oflaw as it -will require investigation into . facts to ascertain tlie exact date or

 dates of accrual of the cause of action.

When on the point of limi tation the appellant-Council had at one stage acquiesced in the trial Court's finding and did not raise the_ question in appeal before the High Court we do. not think it would be fair or just to permit the appellant-Council to raise . tl)e plea of limitation in thi_s Court,

I ' ' ' ~. • .• - . . • • • . • • • .

...

. ..\-

-'f

-'y

MUNICIPAL COUNCIL v. VRAJ LAL (Tu/zapurkar, J.) 317

especially when the result of allowing such plea might be to defeat the just claim of the respondent-firm.

In the result the appeals are dismissed and each party will bear its own costs.

P.B.R.

Appeals dismissed.

MUNICIPAL COUNCIL DAMOH

VRAJ LAL MANILAL & CO. & OTHERS

February 23, 1982

V.D. TULZAPURKAR

AMARENDRA NATH SEN, JJ.

Berar Municipalities Act, 1922

CIVIL APPELLATB JURISDICTION

D.V. Patel

S.S. Kh

induja

C.L. Sahu

Y. S. Chitale)nd

Rameshwar Nath

Gopal Subramanium

S.A. Shroff

TULZAPURKAR

Damoh Municipal Council

ss. 7

Berar Municipalities Act, 1922

Madhya Pradesh Municipalities Act, 1961

Vraj Lal Manila! & Co.

Prabhudas Kishoredas

Damoh

Madhya :

Damoh city

Damoh Municipal

Vraj Lal Mani Lal & Co.

s. 83

30th June, 1961

25th February, 1963

4th April, 1964

28th September, 1968

Burhanpur Municipal Committee

s. 85

Madhya Pradesh Municipalities Act 1961

Allaudin Saheb

SUPRJ!ME COURT REPORTS (J982J 3 s.c.

Tulzapurkar

section 319

Madhya Pradesh Municipalities Act, 1961

Vraj Lal Manila! & Co.

31st January, 1962

section 83

s. 84

Section 319

SJ.IPREMB COURT

s. 319

s. 319