S.C.R.

SUPREl\IE COURT REPORTS 1241

I think it right to add that the question as to the 1955 existence or admissibility of the concept of regional D. P.Joshi domicile as distinguished from Indian domicile and as v. to the bearing of this on the meaning of the concerned The state of rule \vere not canvassed or suggested at the hearing ~Iadhya Bharat before us and that the Court has not had the benefit and another of arguments on these and the connected matters. If, J " -;;;; a J therefore, I have ventured to differ, notwithstanding a.anna a as • my respect for the views of the majority and potwithstanding the absence of assistance from the Bar, it is out of the conviction that the recognition, express or implied, of regional domicile by a decision ()f this Court would be contrary to the intendment of the Constitution.

BY CoURT.::.:..In accordance with the opinion of the majority, the Petition is dismissed without costs.

Petition dismissed.

THE AUTO~IOBILE PRODUCTS OF INDIA LTD. v . .

RUKl\IAJI BALA AND OTHERS

(And connected Appeal)

[S. R. DAs, BnAGWATI and SYED JAFER ItAM JJ.]

Industrial Disputes (Appellate Tribunal) ti.ct, 1950 (XLVJII of 1950), s. 22-Whether Labour Appellate Tribunal has iurisdic tion to impose conditions when granting pe1mission-Industrial Di~ putes Act, 1947 (XIV of 1947), s. 83 and lndustrial Disputes (Ap

pellate Tribunal) Act, 19.50-S. 23-Jurisdiction of authority not only to decide whether there has been failure to obtain permission but also to give decision on the merits of an industrial dispute-Indus- trial Disputes Act, 1947 (as amended), s. 88 and s. 88A-Ind1istrial Disputes ·(Appellate Tribunal) Act--Ss. 22 and 28-Meaning and scope of.

Held, (i) that the ordinary and primary jurisdiction of the .

Labour Appellate Tribunal constituted under the Industrial Disputes ·

(Appellate Tribunal) Act, 1950 is appellate; (ii) that s. 22 of the Act confers on the appellate tribunal a special jurisdiction which is in the nature of original jurisdiction; (iii) that s. 23 also vests in the tribunal an additional jurisdiction to decide the complaint as if it

were an appeal pending before it; and (iv) that s. 23 confers on the

'. ' ··-

February 3

The Aidomobile

l'roducts of

- India Ltd. v.

Rukmaji B:?la

and ot:iers

SUPREJ\IE COURT REPORTS (1955]

workmen an additional remedy wliich they did not have under the Industrial Disputes Act, 194 7. ·

The to new ss. 33 and 33-A inserted in the Industrial Disputes Act 194 7 (XIV of 194 7) by Act XLVIII of 1950 confer dis

-~ tinct benefits on the workmen and give some additional jurisdiction and power to the authorities mentioned therein.

Section 33-A en joins the Tribunal b decide the complaint "aSif it were a dispute referred to or pending before it" and to submit its award to the ap-. propriate Government and provides that the provisions of the Act shall apply to the awaaj. The provisions of these two new ss. 33 and 33 A 'of the 194 7 Act correspond to and are in pari materia with the provisions of ss. 22 and 23 of the 1950 Act and are more Or less in similar terms. A ban has been put by s. 22 of 1950 Act and. s. 33 of the 194 7 Act upon the ordinary right, which the employer has under the ordinary law governing a contract of employment with a view to protect the workmen against victimisation by the employer and tO ensure the termination of the proceedings in connection with indus"' trial disputes in a peaceful atmosphere and the only thing that the authority is called upon to do is to grant or withhold the permission i.e. to lift or maintain the ban. These sections do not confer any power on the authorities to adjudicate upon any other dispute.

Under s: 22 olthelndustrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950) the Labour Appellate Tribunal has no juris diction to impose conditions as a pre-requisite for granting permission to the employer to retre_nch its workmen.

Under s. 33A of the Industrial Disputes Act 1947 ands. 23 of the 1950 Act the jurisdiction of the authority is not only to decide whether there has been a failure on the part of the employer to obtain the permission of the authority before taking action but also to give a decision on the merits of an industrial dispute and grant appropriate relief which when published by the appropriate Govern ment will become enforceable uncler the respective Acts.

Serampore Belting Mazdoor Union v. Serampo1'e Belting Co., Ltd. ([1951] 1 Lab. L.J. 341), Batuk K. Vyas v. Surat BorO'U!Jh Municipality ([1952] 54 Bom. L.R. 922), Raj Narain v. Employers' Association of Northern India ([1952] 1 Lab. L.J. 381), The Queen v.

County Council of West Riding of Yorkshire ([1896] 1 Q.B. 386), Carlsbad Mineral Works Co., Ltd. v. Their Workmen ([1953] 1 Lab.

L.J. 85), Atherton West cf Co., Ltd. v. Suti Mill Mazdoor Union ([1953] S.C.R. 780) and Bhattacharji v. Parry cf Co., Ltd., Calcutta - ([1954] 2 Lab. L.J. 635), referred to.

CIVIL APPELLATE Ju~ISDICTION: Civil Appeals Nos. 2 and 4 of 1955. . Appeal by Special Leave from the Order. dated the 18th day of November 1954 of the Labour Appeli '

late Tribunal of India, Bombay in Application (Misc.) Bombay No. 773 of 1954.

II. M.

Seervai, /. B. Dadachanji and Rajinder Narain, for the appellant in Civil Appeal No. 2 of 1955 and respondent in Civil Appeal No. 4 of 1955.

D. H. Buch and /. N. Shroff, for the respondents ,. in Civil Appeal No. 2 of 1955 and appellants in Civil t- Appeal No. 4 of 1955.

M. C. Setalvad, Attorney-General for India ( G. N.

Joshi and- P. G. Gokhale with him), for the Intervener (Union of India) .

1955. February 3. The Judgment of the Court was delivered by DAs J.-This is an appeal by special leave from the order of the Labour Appellate Tribunal, Bombay Bench, dated the 18th November 1954 which was made on an application made by the appellant company on the 6th September 1954 under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (Act XLVIII of 1950) which is hereinafter referred to as the 1950 Act.

The appellant company carries on business as assemblers of motor vehicles from "completely knocked tlown" assemblies imported into India.

There was some appeal pending before the Labour Appellate Tribunal arising out of disputes between the appellant company and its workmen.

It is alleged that the name of the appellant company had been removed by the Government of India from the list of approved manufacturers maintained by them and that, in the result, it had been unable to secure further import licenses for the import of completely knocked down assemblies of motor vehicles and that consequently on and from the 1st November 1953 the company had to lay off a number of its workmen, for it had to operate the various departments of its factory at greatly reduced strength. As the appellant company saw no prospect of any increase in the scope of its present operation which would provide employment for the workmen who had been laid off, it had become neces-

J955

The Automobile .

Products oj India Ltd.

Rukmqji Bala and others

The Automobile ·

Pr0ducts of India Ltd. v.

Rukmaji Bala and others

Das).

sary to retrench the wrokmen named in Annexure A to the application. As those workmen were concerned with the appeal pending before the Labour Appellate Tribunal the company applied to the Appellate Tribunal under section 22 of the 1950' Act for permission to retrench them.

The respondents through their Union, the Auto.: mobile Manufacturers' Empfoyees' Association, Bombay, filed a written statement on the 1st November 1954 making diverse allegations against the company and contending that the company had itself to blame for having brought about the lay off. It was con: tended that there was no immediate cause for making the application, that the company was motivated by ulterior motives to deprive the workmen of their dues which even according to the company would become due and payable to the workmen on the expiry of the one year of the said lay off period. It was further alleged that in or about April 1954 the company recalled some of the workmen out of those who had been laid off since November 1953 violating all princic pies on which a recall should have been made and that by such arbitrary and unscientific recall the company had imposed disproportionate work loads on the recalled workmen, thereby altering their conditions of service to their prejudice. The resp0ndents maintained that the application was not maintainable in law, was mala fide and should be dismissed. In the penultimate paragraph of the written statement it was submitted that in the event of the Labour Appellate Tribunal granting the permission in. whole or in part such permission should be granted subject to the following conditions :- ( 1) Payment of full wages with dearness allowance for the entire period of lay off;

(2) Payment of one month's notice pay and retrenchment compensation at the rate of one month's wages including dearness allowance for every completed year of service and part thereof in addition to the gratuity as per the scheme in force in the company;

(3) Alternatively to (2) above and in case the Labour Appellate Tribunal took the view that the

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S.C.R ..

SUPRf.ME COURT REPORTS 1245

lay. off was governed by section 25-C of the Industrial Disputes Act, 1947, payment of compenstion at 50 per cent. of their wages plus dearness allowance for the entire period of lay off to the date of discharge in addition to the notice pay and gratuity as claimed in (2) above; and

( 4) Payment of leave wages as per existing rules, taking the entire period of lay off as sei:vice.

A number of documents were filed in support of the respective contentions.

The Labour Appellate Tribunal at the very outset of its judgment under appeal states its finding . on the merits of the action proposed to be taken by the come pany as follows:-

"There can be little doubt that the retrenchment has been occasioned by the failure of the concern to secure sufficient work owing to absence of licenses from Government and, therefore, retrenchment must be regarded as inevitable and the application before us bona fide. Permission to retrench cannot be refused but for the reasons that we shall state hereafter we make that permission conditional upon the fulfilment of certain terms by the concern".

The company contended before the Labour Appellate Tribunal that its function, while dealing wit}l an application under section 22 of the 1950 Act, was only to give or withhold permission.

This contention was rejected by the Appellate Tribunal with the following observation:-

"That view is quite untenable as has ben repeatedly held by this Tribunal.· We are the authority tO whom an application has to be made for permission to retrench, and when such an application is made we must of necessity exercise our ju<; lgment and discretion and satisfy ourselves that when the company retrenches it does justice by its. employees".

The Labour Appellate Tribunal was clearly influenced

by the consideration which, stated in its own words was as follows:- - "'

. "We do not think that we will-~~ advaµclng -th~ mterest of the employees or of the concern by refusing 5-90 S.C. India/59

The Automobile

Products of India Ltd.

Y.¥' Rukmaji Bala -and others

Das J.

. ;1955

The Automobile~

Products of India Ltd. v.

Rukmaji Bala and others

retrenchment because . the case for retrenchment has been established, and the sooner the workmen are allowed to leave and find for themselves other em ployment the better for them.

But in order to assure ourselves that on retrenchment the . employees receive what in justice they should have, we have decided to give permission to retrench subject to certain conditions which m our view are inherent under the Act, and which apart from the Act we consider to be just and equitable m the particular c!fcumstances of this case".

In this view of the matter the Labour Appellate Tribunal definitely declined "to leave over the question of compensation for lay off as a legacy of the present troubles; the employees to be retrenched have enough to worry them without having to make claims and have them decided after contest before a Tribunal".

In the result, the Labour Appellat~ Tribunal gave the appellant company perm1ss1on to retrench "subject to the terms and conditions of Act XLIII of 1953, provided that each workman is paid at the rate of half basic wages and dearness allowance for the whole period from the date of lay off up to thf date of retrenchmen~ (less sums already received as lay off compensation)".

Liberty was given to the company to set off the lay off compensation pro tanto against the retrenchment relief given by the Act.

Aggrieved by this decision the appellant companv applied for and obtained from this Court special leave to appeal against this order.

The respondents subsequently filed an application for special leave to appeal against this decision . in so far as the Labour Appellate Tribunal had not allowed their full claim as summarised above and m so far as the names of l 7 persons had. been struck off on the allegation of the company . that they were not workmen.

This application of the respondents was also acceded to and the two appeals have been heard together.

The Union of India asked for leave to intervene as important questions of construction of the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the l947 Act) and the 1950 Act were involved.

Such

. ..-

leave was granted and we have heard learned counsel for the Union of India along with learned counsel for the parties. ·

The question as to the. propriety of permitting the names of 17 workmen to be struck off from the application has not been seriously pressed before us.· Only two questions have been canvassed at some length before us, namely:- • ·

(1) Whether under section 22 of the 1950 Act the Tribunal has jurisdiction to impose conditions when granting the permission asked for; and

(2) Whether the conditions imposed in this case are in conformity with law.

It is plain, however, that in case the first question is answered in the negative,. the second question will not call for any decision on the present occasion.

In order to correctly answer the questions it will be necessary to bear in mind the general scheme of the two Acts. The purpose of the 1947 Act is, inter alia, to make provision for the investigation and settlement of industrial disputes. In order to achieve this avowed object different authorities have been constituted under this Act. Thus section 3 provides for the constitution of Works Committee whose dutv is to promote measures for securing and preserving amity and good relations between the employers and workmen.

The appropriate Government is authorised by section 4 to appoint conciliation officers charged with the duty . of mediating irt and promoting . the settlement of industrial disputes and by section 5 to constitute a Board of Conciliation for promoting the settlement • of industrial disputes.

Section 6 empowers the appropriate Government to constitute a Court of Inquiry for enquiring into any matter appearing to be connected with or relevant to an industrial dispute.

Finally, section 7 provides for the constitution of fndustrial Tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Section 10 of this Act provides for reference of disputes to a Board, Court or Tribunal. It will be noticed that under this section it is the appropriate

T ht Automobile

Products of ltidia Lid.

Rukmqji Bala and ofhers

DasJ

Th"e Automobile

Products, of India Ltd .. y; Rukmaji Bala

and others

Das•]f •

Government which alone can make the reference and set the authority in motion. The procedure, powers and duties of conciliation officers, Boards, Courts and Tribunals are elaborately prescribed and defined in sections 11 to 15. It is to be noted that the conciliation officer, Board, and Court are required to make a report to the appropriate Government while the Tribunal is enjoined to • submit its award to the appropriate Government.

The report of a Board or Court and the award of a Tribunal .are under section 17 to be published by the . appropriate .Government within a month from the date of their receipt. Section 17-A provides that the . award of a Tribunal shall become enforceable on the expiry of 30 . days from the date of its publication and, subject to the provisions of sub-section (1) shall come into operation from such date as may be specified therein and if no date is so specified from the date when the award becomes enforceable as aforesaid. Section 19 prescribes the period of operation of settlements and awards.

Chapter V deals with strikes and lock-outs. Sections 26 to 31 which are grouped together under the heading "Penalties" prescribe punishments.

Section 31(1) provides that any employer who contravenes the provisions of section 33 shall be punishable with imprisonment for a term which may extend to 6 .months or with fine which may extend to Rs. 1,000 or with both. Section 33, a contravention of which is made punishable by section 31, as it stood before 1950, forbade an employer, during the pendency of any conciliation proceedirigs or proceedings before a Tribunal,. to alter, to the prejudice of the workmen concerned . in tl1e dispute, the conditions of service applicable to them immediately before such proceedings, nor, save with the express permission: of the conciliation officer, Board or Tribunal, as the case may be, to. discharge, dismiss or otherwise punish duririg the pendency of the proceedings any workman, except for misconduct not connected with the dispute; It may be noted that under this section the .ban on the alteration of the conditions of service was absolute and that permission was necessary only iri case of discharge or dismissal or

..... ·-- ~

. ,..

...

 punishment and even in such case no permission was necessary when the workman was guilty of misconduct not concerned with. the pending dispute.

The only deterrent against a contravention by an emplo- yer of the provisions of section 33 was the prosecution of . the employer under section 31. This was hardly any consolation for the workmen, for if an employer took the risk of a prosecution and acted in contravention of section 33 the workmen could only raise an industrial dispute and ask the appropriate Government to refer the same to a Tribunal but if the Government declined to accede to. their prayer the workmen were without any remedy. This . was the position under the 1947 Act before it 'was amended in 1950.

The 19;50 "_Act was enacted for establishing an Appellate • Tribunal . in relation. to industrial . disputes.

Chapter II of the Act deals with the constitution, composition. and functions of the appellate tribunal.

Section 7 .formulates the jutisdictiori of the , appellai:e tribunal. Section 9 confers on the appeljate tribunal all. the powers which are vested . in a Civil Court when hearing_ an appeal under the Code of Civii Procedure,

1908. . Section 10 prescribes the .period of limitation within which appeals are. to be brought before the appellate tribunal.· Under section 15 the decision of. the appellate. tribunal becomes enforceable on. t}ie . expiry of 30 days from the date of its pronouncement,. provided that where . the appropriate Government is of opinion that it would be inexpedient, on public grounds, to "give effect to the whole or . any part. of the decision the appropriate Government may; before the expiry of the said. period of 30 'days, by order in the Official Gazette either reject the decision or modify it.

Section 22. of. this Act provide.s: "22. During the . period . of thirty days allowed for the .filing of an appeal under section 10 or during the pendency of any appeal under this Act, no .employer shall- . . (a.) alter, to the prejudice . of .the workmen concerned in such appeal, the .conditions of . service applicable to them immediately before. the filing of such appeal, or

'1955

TM Automobile ['roducts of India Ltd.

.Y Rukmaji Bala

aTUi others

Ds J.

19,55

The Automobile

Products of India Ltd.

v.

Rukmaji Baia

and others Da; J.

( b) discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal, save with the express permission in writing of the Appellate Tribunal".

Section 23, on which reliance is counsel for the respondents and reads as follows:-

placed by learned for the intervener,

"23.

Where an employer contravenes the provi- sions of section 22 during the pendency of proceedings before the Appellate Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending before it, in accordance with the . provi5ions of this Act and shall pronounce its decision thereon and the provisions of this Act .shall apply accordingly".

Section 29 of .this Act provides for penalty for contravention of the provisions of section 22, namely, imprisonment. for . a term which may extend to six months,. or with fine which may extend to one thousand rupees, .or with both.

From what has been stated so far four things are to be noted, namely, (i) that the ordinary and primary jurisdiction of the appellate tribunal is appellate, (ii) that section 22 of this Act confers on the appellate tribunal a special jurisdiction which is in the nature of original jurisdiction,

(iii) that . section 23 also vests in the tribunal and additional jurisdiction to decide the complaint as if it were an appeal pending before. it; and (iv) that sei:tion 23 confers on the workmen an additional remedy which they did not have under the 1947 Act.

To fill up the lacuna in the 1947 Act section 34 of the 1950 . A.ct provided for certain amendments of the 1947 Act.

Amongst other things, it substituted a new section for the old section 33 of the 1947 Act. The new section 33 runs as follows:-

"33.

During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any industrial dispute, no employer shall-

. ...

(a) alter, to the prejudice .of the wrkmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or . ( b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be".

It will be noticed that this section has made several changes.

Thus under this section provision is made for obtaining permission as . a condition precedent both for altering the conditions of service and for discharging or punishing the workmen and no exception is made for a case of misconduct unconnected with the pending dispute. Besides this,, the following new section was added to the 1947 Act as section 33-A :

".33-A.

Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Tribunal, any employee aggrieved by, such contravention, may make a complaint in writing, in the prescribed manner to such Tribunal and on receipt of such complaint that Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisioris of this Act and shall submit its award to the appropriate Government and the provisions of of this Act shall apply accordingly".

It may be pointed out that the new sections 33 and 33-A thus inserted into the 1947 Act confer distinct benefits on. the worki:nen and give some additional jurisdiction and power to the authorities mentioned therein.

Section 33-A enjoins the Tribunal to decide the complaint '.'as . if it were a dispute referred to or pending before it" and to submit its award to the appropriate Government and provides that the provisions of the Act shall apply to the award. It is quite clear that the provisions of these two new sections 33 and 33-A of the 1947 Act correspond to and. are in pari materia with the provisions of sections 22 and 23 of the. 1950 Act and are more or less. in similar terms. The question for our coriside-

•.955

The Automobile Products of India Ltd. v.

Rukmaji Bala and others

Das J.

1955 --·- The Automobile

Products of India Ltd. v.

Rukmaji Bala

and others

Das].

ration is : . What are . the meaning, scope and effect of these sections.

A cursory perusal of section 33-A of the 1947 Act as well as section 23 of the 1950 Act will at once show that it is the contravention by the employer of the provisions of . section 33 .in. the first case and of section 22 in the second case that gives rise to. a cause of action in favour of the workmen to approach and move the respective authority named in the section and this contravention is . the condition precedent to the exercise by the authority concerned of the additional

juisdiction and powers conferred on it by the sections.

The authority referred to in the sections is, as we have seen, a Court of limited jurisdiction and must accordillgly be strictly confined to the exercise of the func; tions and powers actually conferred ori it by the Act which constinited it. What, then, are the scope and ambit of the functions and powers with which it has been vestedby these sections? .

When an employer contravenes the provisions of section 33 of the 1947 Act or of section 22 of the 1950 .Act the workmen affected thereby .. obviously have a grievance.

That grievance is two-fold.

In the first place it is that -the employer has taken a prejudicial action against them without theexpress permission in writing -of the authority concerned and . thereby deprived them of the salutary safeguard which the legislature has provided . for their protection against victimisation. In the second place, and . apart from the first grievance which may be called the statutory grievance; the workmen -may also have a grievance on merits which may be of much more seriousness and gravity for. them; namely, that in point of fact they have been un-. fairly dealt with in that their interest has actually been prejudicially affected -by the highhanded act of. -the .employer. These . sections give the workmen -the right to move the authority by lodging a complaint befor.e it ..

This is a distinct 'benefit. given to them, for, as we have seen,-· apart from these sections, the. workmen have. no right to refer. any dispute. for adjudication. This complaint is required to be made in the prescribed manner..

Form DD prescribed. by rule 51-A -of the .Industrial:

Disputes (Central) Rules, 1947, framed 'under section 38 of die 1947 Act, like Form E prescribed under sectiop 35 of the 1950 Act, requires the complaining.work- -men -to show ui their petition of complaint not only the manner m which the alleged contravention has taken place but also the grounds on which the order or the act of the management is challenged.

This clearly indicates that the authority to whom the complaint is made is to decide both the issues,

amely (1) the fact of contravention and (2) the merits of the act or order of the employer. It is also clear that under section 33-A of the 1947 Act the authority is to adjudicate upon the complaint "as if it were a dispute referred to or pending before it" and under section 23 of the 1950 Act the authority is to decide the complaint "as if it were an appeal pending before it".

These provisions quite dearly indicate that the jurisdiction of the authority is , not only to decide whether there has. been a, 'failure on the part of the employer to obtain the permission of the authority before taking action but also to go into the merits 6,£ the complaint and grant appropriate . reliefs. The ext_reme contention that .under section 33-A of the 1947, Act, on a hnding that there has been 'a contravention of t_he provisions of section 33, the Tiibunal's duty is

mly to make a declaration to that effect, leaving the workmen to take such steps under the Act as they may be advised to do, . has beeri negatived by 'the Labour Appellate Tribunal in Serampore Belting Mazdoor Union v. Serampore Belting Co:, Ltd.(1 ) and by

the Bombay High Court in Batuk K. Vyas v. Surat lforough Municipality( i ). The same principle has been accepted and . applied by a Full Bench of the Labour Appellate Tribunal' to a case under section 23 of the

1950 Act in Raj Narain v. Employers' Association of Northern India( 3 ). We find ourselves in agreemeni: with . the construction placed upon section '33-A of the }947 Act and section 23 of the 1950 . Act by these decisions. ln our view the scope and ambit of. the juris~ diction conferred on the authority ' named ill those

(I) [i95J] 2 Lb.L.J. 341. , (2) [1952] 54 Bom. L. R; 922;

(3) [l!l,52] I Lab. L.J. 381.

The Automobile

Products of India Ltd. .v.

Rukrnaji Bala and others

Das J.

.1955

ThtJ Automo'bile

 Products ef India Lid.

Ru!maji Bala

and others

Das].

sections is wider than that conferred on the Criminal Court by section 31 of the 1947 Act and section 29 of the 1950 Act. The Criminal Court under the two last mentioned 5ections is only concerned with the first issue hereinbefore mentioned, namely, yea or nay whether there has been a contravention of the respective provisions of the sections mentioned therein, b11t the authority exercising jurisdiction under section 33-A of the 1947 Act and se-ction 23 of the 1950 Act is to adjudicate upon or decide the: complaint "as if it were a dispute referred to or pending before it"· in the first case or "as if it were an appeal pending before it" in the second case. The authority is, therefore, enjoined to go into the merits of the act complained of under section 33-A of the 1947 Act and section 23 of. the 1950 Act. In this sense the jurisdiction of the authority nanied in these two sections is certainly wider than that of the Criminal Court exercising jurisdiction under the penal sections . referred to above. Having regard to the scope of the enquiry under section 33-A of the 1947 Act and section 23 of the 1950 Act it must follow that the power of the authority to grant relief must be c<>oextensive with its power to grant relief on a reference made to it ar .on an appeal brought before it, as . the case may be. The provision that the authority concerned must submit its award to the appropriate Government and that the provisions . of the respective Acts would be applicable thereto also support the view that the decision of the authority is to partake of the nature of a decision on the merits . of an industrial dispute which when published by the apprnpriate Government will become enforceable under the respective Acts.

It follows, therefore, that the authority referred to in these sections. must have jurisdiction to do complete justice between the parties relating. to the matters in dispute and must have. power to give such relief as the nature of. the case may require and as is also indicated by the prayer clause mentioned. in the tw'o Forms DD and E referred w above. In short, these two sections give to the workmen a direct right to approach the Tribunal or Appellate Tribun.al for the

. ~

redress of their grievance without the intervention of the appropriate Government which they did not possess before 1950 and they provide for speedy determination of disputes and avoid multiplicity of proceedings by giving complete relief to the workmen in relation to their grievances arising out of the action taken by the employer in contravention of the provisions of the relevant sections. It is significant that this jurisdiction or powers has been vested in the. Tribunal or Appellate Tribunal whose normal duty is to decide or adjudicate upon industrial disputes and not on any conciliation officer or Board who are normally charged with the duty of bringing about settlement of disputes.

It is submitted by learned counsel for the Respondents and of the intervener that the scope of section 33 of the 1947 Act and of section 22 of the 1950 Act is precisely the same as that of section 33-A of the 1947 Act .and . section 23 of the 1950 Act. The argument is that the two last mentioned sections were enacted only in order to afford an opportunity to the workmen to . do what they had beei; i. prevented from doing at the earlier stage by reason of the employer taking the law into his own hands and taking action against them without previously obtaining the sanction of the appropriate authority to do so.. If the law permits the workmen to ventilate their grievances at a later stage under section 33-A of the 1947 Act and sectio.n 23 of the 1950 Act there can be no logical reason why the law should not permit them to do so at the earlier stage under section 33 of the 1947 Act and section 22 of the 1950 Act. It is submitted that the purpose of labour legislation being to maintain industrial . peace and restore amity and goodwill between the employer and his workmen, it should be the attempt of the Tribunal or the Appellate Tribu-· nal at every stage to try to resolve all disputes which are connected with the matter which is brought before it. Finally, it is urged that whenever an authority is . vested with the power to do pr not to do an act it must be regarded as having , a discretion and

The Automobile

.Products of India Ltd •.

Rukmaji Bala and others

Das].

19_5.5

The Automobile

Products of India Ltd. .v.

Ru.kmaji Bala ana .others

Das J.

that iri exercise of such discretion the authority must be presumed to be vested with power to impose suitable coriditions.

Reliance is placed on the decision in The Queen v. Couilty Council of West Riding of' Yorkshire( 1 ). The argument is that the authority con' cerried rriay under section 33 of the 1947 Act and section 22 of the 1950 Act grant by way of imposing conditions the same relief which it can grant to the workmen under section 33-A of the 1947 Act and section 23 of the 1950 Act. We are unable to accept this contention as correi:t for" reasons which we now proceed to state.

The object of section 22 of the 1950 Act like that of section 33 of the 1947 Act as amended is to protect the workmen concerned . in disputes which form the subject-matter of pendin_g proceedil}gs against victimisation by t!ie employer .on account - of. t1ieir having ra.ised industrial . disputes or. their. contim/ing .th~ pend~ ing proceedings. It . is further the object of the two sections to ensure tht proceedings: in . connecrin "'.ith in'. dustrial disputes already . pending sjiould . be_ bro.ught to a termination in. a. peacef!-11 atmosphere and . that no employer, should during the pendency of those proceedings take any action of the kind mentioned in the sections . which,' may give ' rise to fresh. disputes likely to further exacerbate the already strained relation between the employer and the workmen.

To. achieve this. object.· a. ban , has been imp9sed. upon the. ordinary right which the employer has under the ordinary , lw governing' a 'contract ' of . employment.

Section 22 of the 1950 Act and section 33 of the

1947. Act "'.hich impose the ban also provide for the removal of that ban bl;' the granting of express per: mission in writing in appropriate cases by tlie authority . mentioned therein. The : purpose of . the.se . t:Wo sectiOD.s heirig to determine 'whether • the ban should be removed. O( not, , all that is . required , of the authO:. r!tj exercising furisdiction under these sections. is to accord . or withhold .. permission. And . so . it has. been held-we .. think . rightly-by the Labour . Appellate Tribunal in Carlsbad Mineral _Works .co. Ltd . .v. T, heir

(I)

[1896) 2 Q.B. 386.

' .,..

Workmen (1) which was a case under section. 33 of the 1947 Ai:. Even a cursory persual of section 33 of the 1947 Act will make it clear that the purpose of that section was not to confer any. general power of adjudication of. disputes. It will be noticed that under section 33 of the 1947 Act the authority invested with the power of granting or withholding permission is the conciliation officer, Board or Tribunal. The . conciliation officer or the Board normally has no power, under the 1947 Act, to deide any industrial:· dispute but is only charged with the duty of bringing about a settlement of dispute. It is only the Tribunal which can by its award decide a dispute referred .to it; Section 33 by the same language confers . jurisdiction and power on all the three authorities. Power being thus conferred by . one and the same section,· it cannot

mean one thing in relation to the conciliation officer or the Board and a different and larger thing in relation to the Tribunal. There is no reason to think that the legislature, by a side wind as it' were, vested in the conciliation officer and the Board the jurisdiction and power of adjudicating upon disputes which they normally do not possess and whfrh they may not be competent or qualified to exercise. Further, if the purpose of the section was to invest all the authorities named therein with power to 'decide industrial disputes. one . would have . expected . some provision enabling them to make and submit an award to which the provisions of the Act would apply such as is provided in ection 33-A of the 1947' Act or section 23 of the 1950 Act. There is no machinery provided in section 33 of the 1947 Act or section 23 of the 1950 Act for enforcing the decision of the authority named in those sections. This also indicates that those sections only impose a ban on the right of the employer and the only thing that the authority is called upon to do is to grant or withhold the permission, i.e. to lift or maintain the ban. And so it has been held by this Court in Atherton West & Co., Ltd. v. Suti Mzll Mazdoor Union( 2 ) which was a case under clause 23 of the U. P. Government Notification quoted on p. 785.

(1) [1953] 1 Lab. L.J. 85.

(2) [1953] s.c.R .. 780, 786-7.

The Automoile

-Products of

India Ltd. v: Rukmaji Bala and others

Dat"J.

T lit Autrnnobi/e

 Produ; IJ, of India Ltd. v.

Rukmaji Bala

and othtrs

Pas J•

Section 22 of the 1950 Act is in pari materia with section 33 of the 1947 Act and the above clause . 23 of the U. P. Government Notification and most of .the considerations noted above. in connection with these pr°" visions apply mutatis mutandis to .section 22 of the 1950 Act. Imposition of conditions is wholly collateral to this purpose and the authority cannot impose any condition. And it has been so held-we think correctly-in G.

C. Bhattacharji v. Parry & Co., Ltd., Calcutta(.'). In view of the scheme of these Acts summarised above and the. language of these sections the general principle laid down in the case of The Queen

v. The County Council of West Riding supra can have no application to a case governed by these sections.

In our judgment the Labour Appellate Tribunal was in error in holding that it had jurisdiction to impose conditions as a prerequisite for granting permission to the company to retrench its workmenand the first question must be answered in the negative.

In the view we have taken on the first question we do not consider it necessary on this occasion to express any op1mon on the other question canvassed before us.

The result, therefore, is that this appeal is allowed and .the decision of the Labour Appellate Tribunal is set aside and the matter is remanded to the Labour Appellate Tribunal to de:il with the application of the company and make the appropriate order. according to law. In the circumstances of this case we make no order as to costs. Appeal No. 4 of 1955 is dismissed also without costs.

(!) [1954] 2 Lab. L.J. 635.

~Iadhya Bharat

THE AUTO~IOBILE PRODUCTS OF INDIA LTD

RUKl\IAJI BALA AND OTHERS

S. R. DAs

s. 22

s. 83

S. 23

s. 88

s. 88A

Ss. 22 and 28

s. 22

s. 23

s. 23

Industrial Disputes Act

ss. 33 and 33

Industrial Disputes Act

Section 33

ss. 33 and 33

ss. 22 and 23

s. 22

s. 33

s. 33A

Industrial Disputes Act 1947

M.

Seervai

B. Dadachanji

Rajinder Narain

D. H. Buch

N. Shroff

M. C. Setalvad

G. N.

Joshi

P. G. Gokhale

Intervener (Union of India

Labour Appellate Tribunal, Bombay Bench

6th September 1954

section 22

India

Government of India

1st November 1953

Rukmqji Bala

Rukmaji Bala

section 22

1st November 1954

section 25

Industrial Disputes Act, 1947

Labour Appellate Tribunal

section 22

Automobile

Products of India Ltd.

Industrial Disputes Act, 1947

section 22

section 3

section 4

section 5

Section 6

section 7

Section 10

sections 11 to 15

section 17

Section 17

Section 19

Sections 26 to 31

Section 31(1)

section 33

Section 33

section 31

section 33

section 31

section 33

Chapter II of the Act

Section 7

Section 9

Code of Civii Procedure

Section 10

section 15

Section 22

section 10

TM Automobile

.Y Rukmaji Bala

Rukmaji Baia

Section 23

section 22

Section 29

section 22

section 22

section 23

section 34

section 33

section 33

section 33

section 33

sections 33 and 33

Section 33

sections 33 and 33

sections 22 and 23

section 33

section 23

section 33

section 22

section 33

section 22

section 38

section 33

section 23

section 33

section 33

Bombay High Court

section 23

section 23

Rukrnaji Bala

section 31

section 29

section 33

section 33

section 23

section 33

section 23

section 33

section 22

section 33

section 23

section 33

section 33

section 22

Automobile

.Products of India Ltd

Ru.kmaji Bala

section 33

section 22

section 33

section 23

section 22

section 33

Section 22

section 33

section 33

section 33

Section 33

section 23

section 33

section 23

clause 23

Section 22

section 33

section 22


...,, ...

S.C.R .

SUPREME COURT REPORTS

THE STATE OF BIHAR

ti.

KUMAR AMAR SINGH AND OTHERS

(And connected Appeal)

[S.

DAs,

BHAGWATI,

JAGANNADHADAS,

VENKATA-

RAMA AYYJi.R and B. P. SINHA JJ.J

Constitution of India, Arts. 5 and 7 and Proviso to Art. 7-Wife migrated from India to Pakistan after the ]st March, 1947-Her husband continued to be in India-Wife whether citizen of India- Art .. 7 ovem'ding Art. 5-Administration of Evacuee Property r; Jrdinance 1949 (XXVII of 1949)-Administration of Evacuee Property Act, 1950 (Act XXXI of 1950)-Evacuee Property Ordinance (Bihar Ordinance No. III of 1949)-Evacuee Property-Definition of- W hether includes interest of an evacuee in property held as trustee or beneficiary and whether includes wakf property and interest therein.

The relevant portion of Art. 5 of the Constitutin reads :- "At the commencement of this Constitution every person who

ha~ his domicile in the territory of India and who was born in the territory of fodia shall be a citizen of India". ·

Article 7 of the Constitution lays down :- "Notwithstanding anything in Art. 5, a person wh\l has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India".

It was contended on behalf of the respondent Kumar Rani who had migrated from India to Pakistan in 1948 that she was, and continued to be, a citizen of India on the ground that she was born in India and her domicile continued to be that of her husband, who throughout continued to be in India and that her case was CO\'.ered by Art. 5 of the Constitution.

Held (repelling the contention) that At. 7 of the Constitution clearly overrides Art. 5. As the respondent had migrated from India to .Pakistan after the 1st March, 194 7, her case fell under Art. 7 of the Constitution and that inasmuch as it was a case of an unauthorised issue of an invalid permit which had been properly cancelled the proviso to Art. 7 did not apply and that therefore the respondent could not be deemed to be a citizen of India.

Held also, that the definitions of the phrase "evacuee property" in the Administration of Evacuee Property Ordinance 1949 and the Administration of Evacuee Property Act 1950 (XXXI of 1950) clearly include the interest of an evacuee in any property held as a trustee or beneficiary.

The definition of evacuee property in Evacuee Property Ordinance 1949 (Bihar Ordinance No. III of 1949) is not

Febtuary 10

1955 different and the words used therein comprise also wakf property "" -f, The State of Bihar and any interest therein.' v.

Kumar Amar Singh and others

C1v1L

APPELLATE JuRISDICTION : Civil Appeals Nos. 97 aod 98 of 1952.

Appeals under Articles 132 ( 1) and 133 ( 1) ( c) of the Constitution of India from the Judgment aod Decree dated .the 13th. October 1950 of the High Court' of Judicature at Patna in Miscellaneous Judicial Cases Nos. 140 and 107 of 1950.

M. C. Setalvad, Attoriley-Generdl for India ( G. N.· Jorhi, Lal Narain Sinha .and P. G. Gokhale with him); for the appellant in C.A. Nos. 97 and 98 of 1952.

B. Sen and I. N. 'Shroff, for the respondents Nos. 1 ~~ . . ·. ..

1955. February 10.

The Judgment of the Court was delivered by

J AGANNADHADAS J .-These are two . connectecl appeals arising out of a common judgment of the High Court of Patna on two applications to it dated the 5th July, 1950 and 28th July, 1950, under article 226 of the Constitution. The State of Bihar. is the appellant in both the appeals. The first three respon-·

dents in Appeal No. 97 are the sons of the fourth respondent therein, viz. Kumar Rani Sayeeda Khatoon (hereinafter referred to as Kumar Rani). The said Kumar Rani is also the first respondent in Appeal No. 98. The other. respondents in both the appeals are Government Officers under the appellant, the State of Bihar. The applications before the High . Court arose with reference to action taken against ( l) the property, and .(2}. the .person, of Kumar Rani by the Officers of the Government of Bihar, .under the following circumstances.

Kumar Rani was admittedly born in the territory of India and claims to be the lawfully wedded wife of

Captain Maharaj Kumar Gopal saran Narayan Singh of. Gaya by virtue of an alleged marriage between them in 1920 according to Arya Samaj rites and subsequently according. to Muslim rites. She owned and

' .

...

~· .

. -,,..{

possessed considerable properties. In 1946 she created a wakf of her properties consisting of 427 villages for the maintenance and support of herself, her sons and their descendants, by executing a deed of W akf-ulal- Aulad dated the 4th May, 1946, by which she divested herself of all her interest in the said properties and vested them in Almighty God. She appointed, herself as the sole mutwalli for her life time or until relinquishment, and her three sons to succeed her as joint mutwallis. The deed also provided that the net income was to be spent for the maintenance of herself and her three sons with the direction that not more than half should be spent by the wakif a for her own use.

In July, 1948, Kumar Rani went to Karachi.

In December, 1948, she returned to India from Pakistan on a temporary permit and went back to Pakistan

in April, 1949.

On the 21st June, 1949, the Bihar .\dministration of Evacuee Property Ordinance, 1949

~Bihar Ordinance No. III of 1949) came into force.

The Deputy Custodian of Evacuee Property issued a notification on the 2nd September, 1949, under section 5 of his Ordinance, declaring all the properties comprised in the abovementioned wakf estate to have vested in the Custodian as being evacuee property.

He took possession thereof between the 20th September and 2nd October, 1949. On the 14th May, 1950, Kumar Rani again came back to India under a permanent permit obtained from the High Commissioner for India in Pakistan. This permit was, however, cancelled on the 12th July, 1950, by the Deputy High Commissioner, on the ground that this was wrongly issued, without the concurrence of the Government, as required by the rules made under the Influx from Pakistan (Control) Act, 1949.

In view of this cancellation, the Sub-Inspector of Police, Gaya, issued notice to Kumar Rani directing her that since her permanent permit had been cancelled, she should leave India by the 31st July, 1950. In view of these happenings two applications were filed before the High Court of Patna, one dated the 5th July, 1950, challenging the validity of the action taken by the Deputy Custodian declaring the wakJ estate as evacuee property and taking posses-

6-90 S, C. India/59

T/.e State of Bihm'

Kun; ar Amar Singh and others

Jagannadhadas J.

The State of Diliar

Ku, nar Antar Sing!i and others

J agannadliadas J.

. . ·, . . sion thereof on the basis of that declaration, and another application dafed the 28th July, 1950, challenging the validity of the order of the Sub-Inspector of Police, Gay a, directing Kumar Rani to leave India. The first of-these applications was filed by Kumar Rani along with her three sons as petitioners and the second by Kumar Rani alone: Both these applications were allowed by the High Court and hence these appeals by the State on leave granted by the High Court.

These two connected appeals came up for hearing before this Court on the 26th and 27th October, 1953.

This Court after hearing counsel on both sides was of the opinion that one of the essential facts (to be mentioned in detail herein below when dealing with Appeal No. 97) requisite for a proper decision of Appeal No. 97 had been assumed without investigation and that it was necessary to hr:ve a finding thereupon after taking evidence.

Tliis Court accordingly remanded Appeal No. 97 to the High Court to submit a finding and directed that on the receipt of the finding both the appeals (Appeals Nos. 97 and 98) should be heard together.

The finding has now been received and the appeals have been reheard. It is necessary . at this stage to men ti on that. the ad voe ate who a ppeared for the respondents in both the appeals at the prior hearing appeared before us at this hearing and stated that he had been instructed to withdraw his appearance in these appeals and to allow the hearing to proceed ex parte.

The preliminary facts having been stated as above, it will now be convenient to deal with these two appeals separately.

Appeal No. 98 which raises the fundamental question as to the continuing citizenship of Kumar Rani will be taken up first.

Civil Appeal No. 98 of 1952. . This appeal arises out of the application to the High Court dated the 28th July, 1950, challenging the validity of the order dated the 23rd July, 1950, issued by the Sub-Inspector of Police, Ga ya.

This order is _challenged on the ground that Kumar Rani was, and throughout continued to be, a citizen of India and

1~55 that the order dated the 23rd July, 1950, which, in substance, amounted to an order of her externment f I d fK R ., f d TheStateofBiTtar rom n ia, was in violation o umar ams un av. mental right under article 19 of the Constitution asa Kumar Amar citizen of India.· The question that arises is whether, Singhandothm in the circumstances, Kumar Rani was a citizen of - , .

India at the date of the order.

The contention of JagannadhadasJ.

Kumar Rani is that though it is a fact that she did go to Pakistan in the year 1948, she went there only for a temporary purpose, viz. for securing the medical treatment of a reputed Hakim and that she was always and continued to be a citizen of India and that, therefore, the High Commissioner for India in Pakistan had no power to cancel the permit issued to her.

As regards her allegation that when she first went to Karachi in July, 1948, she did so temporarily for the purpose of medical treatment, the learned Judges of the High Court were not inclined to accept her story . . But, all the same, they held that she was and continued to be a citizen of India, n the ground that she was born in India and that her domicile continued to be that of her husband, Captain Maharaj Kumar Gopal Saran Narayan Singh, who, it is not disputed, _throughout continued to be in India.

The learned Judges of the High Court apparently had article 5 of the Constitution in mind and acted on the view of the English law that the wife's domicile continues throughout to be that of her husband during the con- . tinuance of marriage. It appears to us, with respect, that the learned Judges of the High Court completely overlooked article 7 of the Constitution.

The relevant portion of article 5 of the Constitution says as follows: · "At the commencement of this Constitution, every person who has his domicile in the territory of India and who was born in the territory of India shall be a citizen of India".

In the view of the High Court since Kumar Rani was born in India and had the Indian domicile of her hus- Land, she was a citizen of India. But article 7 says:

"Notwithstanding anything in article 5, a person

Th'e state of Bihar

Kumar Amar Singh ana' others

Jagannadhadas J.

1264 SUPREME; CO.U:(lT REPORTS [1955] .

who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India".-

There is a proviso to this article which will be noticed presently. But before noticing the proviso and its effect, it is necessary to mention the following facts which may be taken to have been made out on the record. (1) Kumar Rani went to Karachi in July, 1948.

(2) Her story that she went there temporarily for medical treatment has been doubted by the High Court _and appears to us to be unfounded. (3) When she came to India in December, 1948, she did so on a temporary permit stating in her application for the said permit that she was domiciled in Pakistan and accordingly representing herself to be a Pakistani national. ( 4) She went back to Pakistan in April, 1949, on the expiry of that temporary permit. (5) She made an attempt to obtain a permit for permanent return to India only after steps had been taken to vest the property in the Custodian and after the same was taken possession of. There can be no doubt on these facts that she must be held to have migrated from the territory of India after the 1st March, 1947. Even if therefore article 5 can be said to be applicable to her on the assumption that Captain Narayan Singh was her husband and that her domicile was that of her husband, the facts bring her case under article 7.

Article 7 clearly overrides article 5. It is peremptory in its scope and makes no exception for such a case, i.e., of the wife migrating to Pakistan leaving her husband in India. Even such a wife must be deemed not to be a citizen of India unless the particular facts bring her case within the proviso to article 7. This proviso is as follows :

"Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law".

It is contended with reference to this proviso that

.. .

-.,

...

.J. -

. r

since she m fact returned under a permanent permit, she is entitled to the benefit thereof and that the subsequent cancellation of the said permit is both illegal and irrelevant. Rule 10 of the Permit System Rules, 1949, framed by the Central Government under section 4 of the Influx from Pakistan (Control) Act, 1949, provides that a permit for permanent resettlement in India may be granted by the High Commissioner or Deputy High Commissioner only after securing the agreement of the State or the Province where the applicant intends to settle. Rule 29 provides that every permit issued under the rules shall be liable to cancellation at any time, without any reason being assigned by the issuing authority. In the present case, ::he permit has been cancelled in a reasoned order on the ground that, on the facts of the case, the consent of the State Governmei1t concerned should have been obtained before the permit could be issued. This is a case, therefore. not of a valid permanent permit having been issued and the permit holder returning ro India on the strength thereof and .. the same. having been arbitrarily cancelled. It is a case of an unauthorised issue of an invalid permit which has been properly cancelled. Hence the proviso to article 7 can have no possible application. The applicant, is, therefore, not a citizen of India and the order passed by the Sub-Inspector of Police, Gaya, dated the 23rd July, 1950, directing Kumar Rani to leave India was accordingly valid. This appeal must therefore succeed.

Civil Appeal f!o. 97 of 1952.

This appeal arises out 'of the application to the High Court dated the 5th July, 1950, challenging the validity of the notification dated the 2nd September,

1949, issued by the Deputy Custodian, under the Bihar Administration of Evacuee Property Ordinance, 1949, declaring the wakf estate as evacuee property and taking possesion thereof.

Three main grounds on which this has been contested are as follows: (1) Kumar Rani was not an evacuee. (2) She had written a letter dated the 2nd June, 1949, addressed to her secorid son, 'Kurriar Fateh Singh, whereby she' relin--

The State of Bihar v.

Kumar Amar Singh and others

Jagannadhadas j,

•q'Jie-State ofBihar v. ·Kumar •Amar

~Singh and .'.others

Jagannadhadas .J.

, SUPREME '.COURT.1REP.ORTS [1955]

quished the office of mutwidli in the .wakf estate, and therefore by virtue of the. said "letter and. in pursuance of the terms .of the original deed of . wakf, her three sons, respondents : 1 to 3, had become the .joint mutwallis as well .as the owners of the beneficial interest in the wakf estate. It being undisputed that these three remained in India . throughout, it . is . contended that the property at the date of the no.tification was the property -of these three sons and not of Kumar Rani and that, therefore, the -Bihar Administration of Evacuee Property Ordinance, 1949, has no applica- . tion to the facts. (3) The Bihar Administration of :Evacuee Property Ordinance, .1949, .is not applicable to wakf property , and to, the beneficial interest of the applicants therein. So far as the first point is concerned an "evacuee" is defined as follows in the Bihar Administration of Evacuee .Property Ordinance, 1949 :

"A person who, on account of the setting up of the Dominions of India and Pakistan or on account of ciyil distmbances or the fear of such disturbances, .'.leaves or •has, On •or after •the 1st day of November, ·.J946, left, any ·Place in the 'Province of Bihar for any place outside the territories now forming part of India".

It is clear that, as already found above, Kumar Rani . mi grated to Pakistan from .In.dia after the 1st March,

1947. In view .of the £act that her plea .as to the reason for such migration has not been accepted, she can well be taken to have left India for Pakistan in the circumstances set out in this definition, and after the prescribed date. She has, therefore, been rightly taken to be an "evacuee" by the Custodian .. As regards the second point, the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting :of the interest in the wakf property in her three sons, respondents 1 to 3, as joint 0mutwallis thereof, by virtue of the terms of the deed of wakf, is based on a letter addressed -to. the second ; res- -pondent, her second son , Kumar Fateh Singh, •purporting to have been .. wri_tten by her and dated the 2nd June, 1949.

The gel).liineness of this letter has been challenged -and it is the issue as to itr.

- f

'-f'

:S.C; R. -1267

•genuineness that was remanded: to tthe -. High .Court for a finding by the ::previous otder of 'this Court. The

High Court . having -:taken evidence on the matters at the hearing after remand and having considered the same, has clearly found that the letter was not genuine. We have gone through the finding arid the material relevant thereto, and can find no reason not to accept it. There is, therefore, no substance in this second contention. As regards the third point, the contention is based on the definition of the phrase "evacuee property" in the Bihar Administration of Evacuee Property Ordinance, 1949, which is as follows :

"Evacuee property means a:ny property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument". •It is contended that this definition does not apply either to the wakf property or to the beneficial interest of the mutwalli therein and that, therefore, the property in question did not vest in the Custodian. Now, •as already "stated, the original notification vesting the wakf property in the Custodian was made under section 5 of the Bihar Admini-stration of Evacuee Property Ordinance, 1949. This Ordinance was repealed by section 55(2) of Central Ordinance No. XXVII .of 1949.

The Central Ordinance defined "evacuee property" as

"any property in which an evacuee has any right or interest, whether personal or as a trustee or a:s beneficiary or in any other capacity".

The Central Ordinance was in turn repealed by Central Act No. XXXI of 1950 and "evacuee property" has been defined therein .. as meaning

"any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any oi:her capacity".

The word "property" is defined as meaning

"property of any kind and includes any right or interest in such property". 'The Central Ordinance which repeale'd .. the Bihar Ordinance as well as the , central Act which repealed i:he Central Ordinance, each contain section 8(2) providing that

•The State Of Bihar v.

Kumar Amar ···:Singh and other.<

Jagtmnadhadas J.

The State of Bihar .v.

Kumar Amar Singh and others

Jagannadhadas J.

Fe6ruary 22

"where immediately before the commencement of this Ordinance (Act) any evacuee property in a Province has vested in any person exercising the power of Custodian under any law repealed hereby, the evacuee property shall on the commencement of the Ordinance (Act) be deemed to have been vested in the Custodian appointed or deemed to have been appointed for the Province under the Ordinance (Act) and shall continue to so vest". , ·, The definitions of the phrase "evacuee property" m the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything "different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar 'definition comprised also wakj property and interest therein~ We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt.

This contention must, therefore, fail.

This appeal alw must accordingly succed.

In the result both the appeals are allowed. The appellant in the circumstances will get only the cost; incurred before the High Court on remand in Civil Appeal No. 97 of 1952.

Appeals allowed.

SHYABUDDINSAB MOHIDIN$AB, AKKI

tJ.

THE GADAG-BETGERI MUNICIPAL BOROUGH

AND OTHERS.

rvrvrAN BosE,

JAGANNADHADAS and' B. P, SINHA JT.]

Bombay Mnicipal Boroughs Act, 1925 ·(Bombay Act XVlll of 1925), s. 19 as amended by Bombay Act LIV _of 1954-;-Lc_gal effect thereof-Validity of election-S. 35(3)(6)-Notice , of meeting-Provisions of s. 35(3)'-Whether directory or mimdatory-S. 35(6)-Presence or absence of public-Whether affects the validity of meeting.

>--

THE STATE OF BIHAR

KUMAR AMAR SINGH AND OTHERS

DAs

BHAGWATI

JAGANNADHADAS

B. P. SINHA JJ

Constitution of India

Arts. 5 and 7

Art. 7

Art. 5

Evacuee Property Ordinance

Art. 5

Article 7

Art. 5

India

Pakistan

Art. 5

Art. 5

1st March, 194 7

Art. 7

Art. 7

Kumar Amar Singh

Articles 132

Constitution of India

M. C. Setalvad

G. N.· Jorhi

Lal Narain Sinha

P. G. Gokhale

B. Sen

I. N. 'Shroff

J AGANNADHADAS

High Court of Patna

article 226

State of Bihar

Kumar Rani Sayeeda Khatoon

Kumar Rani

Kumar Rani

Maharaj Kumar Gopal saran Narayan Singh

4th May, 1946

Karachi

21st June, 1949

Evacuee Property Ordinance, 1949

2nd September, 1949

section 5

20th September and 2nd October, 1949

14th May, 1950

12th July, 1950

Gaya

31st July, 1950

Jagannadhadas

State of Diliar

26th and 27th October, 1953

article 19

JagannadhadasJ.

article 5

article 7

article 5

article 7

article 5

state of Bihar

Kumar Amar Singh

1st March, 1947

article 5

Captain Narayan Singh

article 7

Article 7

article 5

article 7

Permit System Rules, 1949

Central Government

section 4

article 7

2nd June, 1949

Evacuee Property Ordinance

Property Ordinance, 1949

1st March,

1947

Kumar Fateh Singh

section 5

section 55(2)

section 8(2)

Jagtmnadhadas

SHYABUDDINSAB MOHIDIN$AB

GADAG-BETGERI MUNICIPAL BOROUGH

rvrvrAN BosE

JAGANNADHADAS

B. P, SINHA

Bombay Mnicipal Boroughs Act, 1925

s. 19

S. 35(3)(6)

s. 35(3)

S. 35(6)