6 S.C.R.

SUPREME COURT. REPORTS

STATE OF MADHYA PRADESH

BHAILAL BHAI & ORS.

(P. B. GAJBNDRAGADKAR, K. N. WANCl{OO, K. c. PAS GUPTA, ]. C. SHAH AND N. RAJAGOPALA AYYANGAll JI.)

COftltltution of India, 1950, A.rtl. 226, 301 and 304-luue of Wrlf-

Unrewonahle delay in moving Coun-what iJ-Sale1 T~ lmpedint Inter Stolt trade-Validity-Tax paid under mistak~ Ordtr of np111me111-Jurildiction of High Court 1m4er A.rt. 221

The respondents are doalen iii tobaccp in the State of Madhya B))ant.

The appellant imposed sales tu on the sale of imported tobacco by the respondents.

But no such tax was imposed on the sale of indigcoot11 tobacco. The respondents filed petitions under Art. 226 of the Constiru.

lion for the bsue of writ of mandamus 'directing the refund of sales tu: collected from them. They contended that the impugned tu violated Art. 301 (a) of the Constitution and they pru"d the tax under a mistake at law and the tax so paid was refundable under s. 72 of the Indian Contract Act, 1872. The appellant contended that there was no violation ol.

Art. 301 of the Constitution, even if there was such violation the tu: came witllin the special provision under Art. 304(a), the High Court bu no power to direct refund of tax already paid and in any event the Hiaft Court should not exercise its discretionary power of issuing a writ of martllamus directing this to be done since there was unreasonable delay la tiling the petition. The High Court rejected all the contentions of the appellant and a writ of mandamus was issued as prayed for. The appellants appealed to this Court. Before this Court substantially the same contention:;. a11 were canvassed before the High Court were raised.

Held: (i) Even though the liability to pay tax was crµted by the sale of tobacco in Madhya Pradesh and not by the import itself the facts

and circumstances showed that trade and commerce. as between Madh11 Bharat and other parts of India was directly impeded by tb, o impulld wx and therefore the said tax violated Art. 30l(a) of the Constitution.

Atiabarj Tea Co. Ltd. v. Statt of Assam. [1961) I S.C.R. 809, A.1110mnbileJ Transport (Ra/allhan) Ltd. v. State of Rajasthan, [1963) I S.C.R. 491 and Firm Mehtab Majid I Co. v. Stat• of MadrtU, A.l.jl. 1943 S.C. '21, referred to.

(ii) Even thou'lb the tu contravened Art. ~OJ of the ConstituliGa it would he valid if it came within the saving provi•illtll ot Art. J04 pl tbe Constitution.

(lii) Tobacco manufll!'!ured or produce4 in the appellant late, Ii niJac lo tho tobacco imported from outside bad no" been subl"tetl to lhe tu and therefore the tu wu noC l!lithin the saviiis provisipna ot Ad. 304 <•>

ol the Comtitlllioa.

(iv) The tax which had already been paid was so paid under a mistake -- within s. 72 of the Indian Contract Act.

The High Courts have power State po!uiMhdhya for the purpose of enforcement of fundamental rights and statutory rights

"v, ei to grant consequential reliefs by or'dering repayment of money realised by Bhailol Bhai. the Governn1ent without the authority of law.

Firm Mehtab Majid & Co. Y. State of Madras, A.I.R. 1963 S.C. 921 and Sale& Tax Officer, Banaras v. Kanhaiya Lal Saraf, [1963] S.C.R. 1360, referred to.

( v) A~ a general rule if there has been unreasonble delay the coutt ought n9t ordinarily to lend its aid to a party by the extraordinary remedy of manrlamuJ. Even if there is not such delay, in cues where th.e

opposite party raises a prima facie issue as regards the availability of such relief on the merits on grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus.

(vi) Though the provisions of the Limitation Act do not as such .&pply to the grantin& of relief under Art. 226 the maximum period fixed I

by the legish•_ture as the time within which relief by a suit in a Civil Court must be claimed 1nay ordinarily be taken to be a reasonable standard by

.wh~:; h delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. Where the delay is more than this period it will almost always be proper for the court to bold that it is unreasonable.

The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three yeaN from the date when the mistake is known. In the result C.A. No!. 861-867 are allowed in part and the other appeals are di!iimhsed.

CIVIL

APPELLATE

JURISDICTION : Civil Appeah Nos. 362-377 of 1962.

Appeals from the judgment and orders dated December 16, 1959 of the Madhya Pradesh High Court in Miscella aeous Petitions Nos. 144 to 158 and 160 of 1958.

Civil Appeals Nos. 858 to 867 of 1962.

Appeals from the judgment and orders dated 28th October, 1960, 16th September, 1960 and 29th July, 1960 of the Madhya Pradesh High Court in Miscellaneous Petltiom Nos. 110, 119 and 136 of 1960, 198, 199, 202 to 206 of 1959 respectively.

 Civil Appeals Nos. 25 to 29 of 1963.

Appeals from the judgment and orders dated 29th July, 1960, 26th September, 1960, 28th October, 1960, 16th September. 1960 and 28th October, 1960 of the Madhya . .

Pradesh High Court in Miscellaneous Petition Nos. 27' cf 1958, 73, 74, 120 and 132 of 1960 respectively.

M. Adhikari, Advocate-General, Madhya Pradesh and I. N. Shroff, for the appellants (in all the appeals).

M. C. Setalvad, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the respondent (in C.A. No. 362/1962).

S. N. Andley, Rameshwar Nath and P. L. Vohra, for the respondents (in C.A. Nos. 363 to 377 and 858 to 867 of 1962 and 25 to 27 of 1963).

January 20, 1964.

The Judgment of the Court was delivered by '

Stat• of Madlt1fl

Prad111h

Bhailal BluJI

DAS GUPTA J.-These 31 appeals by the State of Madhya o., Gurt• J.

Pradesh are against the orders made by the High Court of Madhya Pradesh in 31 applications under Art. 226 of the Constitution by dealers in tobacco.

All these petitioners carried on business in Madhya Bharat which later became part of the State of Madhya Pradesh.

They were assessed to sales tax on their sales of tobacco in accordance with the notification issued by the State Government in exercise of pow'ers under s. 5 of the State Sales Tax Act and large amounts were collected by the Madhya Bharat Government and later by the Madhya Pradesh Government.

The petitioners contended that the taxing pr9vi- 1ions under which the tax was assessed and collected from them was unconstitutional as it infringed Art. 301 of the Constitution and did not come Within the special provision of Art. 304(a). Accordingly, they prayed for appropriate writs or orders for refund of all the taxes that has been collected from them.

In resisting these applications the Madhya Pradesh Government contended, first, that the taxing provisions did not offend Art. 301 of the Constitution and that in any case, they satisfed the requirements of Art. 304(a).

It was further contended that even if tl)e taxing p10vision was unconstitutional and the assessment and collection of tax had been without any legal authority the petitioitiers were not en ti tied to the order for refund prayed for.

I~ The l:ligb Count was of opinion on a consideration of • ;; fita41iyo the notification under which the tax was assessed that it 'fOllull imposed a tax only on imported tobacco and not on home •. b AJJJoJ B/ioi grown to acco and so it did not come within the special ,,_ a;;;,. 1. provisions of Art. 304 (a) of the Constitution and consequently the infringement of Art. 301 of the Constitution which resulted from the imposition of a tax on import of goods made the provisions void in law.

The prayer for refund was allowed in the applications out of which C.A.

Nos. 362-377, C.A. Nos. 861-867 of 1962 and C.A.

No. 25 of 1963 have arisen.

The prayer was rejecr.ed in the remaining applicatiom. ·

In the present appeals the State of Madhya Pradesh challenges the correctness of the High Court's decision that the taxirig provision was unconstitutional and void and also rders for refund m34e in some of the lions mentionC!( above.

The liability to pay tax arose under s.3 of the Madhya Bharat Sales Tax Act. This Act came into force from

e 1st day of May 1950. As originally enacted it 11rovided that (a) every dealer who imports goods into Madhya Bharat shall be liable to pay tax on his taxable turnover in respect of sales or supplies of goods effected from the lit day of May 1950 if his total turnover in the previous year

in respect of sales or supplies of goods exceeded Rs 5,000; (I>) similarly every manufacturer or processor whose turnover in the previous year exceeded Rs. 5,000 was made

liable to pay tax on his taxable turnover in respect of sales .Jf supplies of goods effected from the 1st day of May 1950; (c) every other dealer was made liable to pay tax on his taxable turnover in respect of sales or supplies or goods ellecOOd from the 1st day of May 1950, if the total

turnover in the previous year exceeded Rs. 12,000.

By later amendments the word "processor" was deleted from

cl. (b) of the section and the meaning of the words "any other" in cl. ( c) was made clearer by substituting the w9rds "any goods of a dealer not falling in cl. (a) or cl.

C)?)".

There was also an amendment in 1950 making it clCM that the taxable turnover on which the tax liability

IH4 arose was in respect of sales or supplies of goods effected in Madhya Bharat.

State oj M,,,,,,,_

iaUlh Section 5 of the Act provides that the tax payable by a dealer shall be at a single point and shalt not be less than Rs. 1/9/- per cent or more than 6! per cent of the taxable turnover, as notified from time to time by the Go\'ernment by publication in the Official Gazette.

This is 5ubject to a proviso that the Government may in respect of a special class of goods charge tax upto 12!% on the taxable turnover.

The second sub-section of s. 5 empowers the Government to notify at the time of notifying the tax payable by a dealer, the goods and the point of their sale at which the tax is payable. • The legal position therefore is that unless there is a valid notification under s. 5 no tax can be levied.

The contention of the petitioners-dealers which has succeeded in the High Court is that the notifications on the strength of which the tax was asse.ssed on tbem were invalid.

The first notification was issued on April 30, 1950.

This provided that with effect from the Ist day of May 1950 sales tax shall be oolleoted in respect of goods specified in column 2 of the Schedule that was attached to tho notification at the point of sale mentioned in column 3 at lhe rates mentioned in column 4. The relevant portion of the Schedule ran thus:-

SI Name of commadit7 The point of sale Rate of No. by dealers IU

• • • '

Tobacco leaves, manufactu~ Importer 6-4-0 red tobacco \for eating and tr CCll1 amoking) and tobacco µscd alct~ for Jlldi manufacturing.

This was followed by another notification dated May 22, 1950 under which a lower rate was prescribed fur

tobacco used for Bidi manufacturers.

But the point at which the tax was payable remained unaltered.

Tho rclo-

"· al#liW B,,_

D. a.,,. J.

l91U vant portion of the Schedule to this notification was in .ltate of Madh1• these words:

Prade1h

v. ----------~------------ ...., BhlzI

.D-6 Gupta /.

SI.

No.

Nainc of commodity

IO.

Tobacco leaves and manufactured tobacco (for eating, smoking and snuffing)

I I.

Tobacco used for Bidi manufacturing.

Point of sale by the dealers inM.B.

Importer

Importer

Rate per cent of tax '

1-9-0

For a short period, i.e., from the 1st January 1954 to the ,21st January 1954 these two notifications remained inoperative in consequence of a notification dated the 24th Octoj>er, 1953, under which from the 1st January 1954 the point of sale at which the tax was payable was altered to "on a sale by a dealer direct to a consumer or to a dealer who does not hold a licence or registration certificate under the Sales Tax Act". This last notification was again superseded by a notification dated the 21st January, 1954 in consequence of which th:e old position was restored with effect from January 22, 1954. That is, with effect from 22nd January 1954 the point at which the tax was payable, again became a sale by an importer.

There can be no doubt that the tax payable at the point of sale by the importer in Madhya Bharat directly impeded the freedom of trade and commerce guaranteed by Art. 30 l of the Constitution.

It is true that the import by itself would not bring in the liability to tax and that if the imported goods were not sold in Madhya Bharat no tax would be payable.

Quite clearly however by far the greater part of the tobacoo leaves, manufactured tobacco (for eating and smoking) and tobacco used for Bidi manufacturing that would be imported into the State would be sold in Madhya Bharat.

That a very considerable amount was so sold is clear from the very assessment orders made .•in these several cases.

There can be no doubt therefore

that even though it is the sale in Madhya Bharat of the imported goods that creates the liability to tax and not the import by itself, the trade and commerce as between Madhya Bharat and other parts of India is directly impeded by this tax.

On the authority of this Court's decision in Atiabari Tea Co., Ltd. v. State of Assam(') it must therefore be held that the tax contravenes the provisions of Art. 301 of the Constitution.

It may be mentioned that the later decision of this Court in Automobile Transport (Rajasthan) Ltd. v.

State of Rajasthan(') which slightly modified the majority decision in Atiabari Tea Co.'s case does not alter this position. If the tax could have been claimed to be regulatory or compensatory it would have got the benefit of th~

latter decision.

There is, however, no scope for such a claim (See Firm Mehtab Majid & Co. v.

State of Madras)(').

The tax could still be good if even though it contravened the provisions of Art. 301 'it came within the saving provisions of AI1. 304( a) of the Constitution.

That Article provides in its cl. (a) that notwithstanding anything in Article 301 or Art. 303 the legislature of a State may by law impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject so however as not to discriminate between goods so itnported and goods so manufactured or produced.

An attempt was made on behalf of the State befl""e the High Court and also before us to construe the notification mentioned above to mean that not only the tobacco imported from other States but also similar goods manufactured or produced in Madhya Bharat were subject to this tax and at the same rate.

It was argued that a dealer in these goods who was an importer and so sold goods imported by him into Madhya Bharat would also be selling goods not so imported but manufactured and produced in the State.

We are prepared to agree that that may well be so.

What we are unable to see, however, is that in respect of sales of such other goods this person would be liable to

(') [19611 I S.::;.R. 809.

(' ; [1963] I S.C.R. 491.

(') \.I.R. 1963 S.C. 928.

State of Madhya

Pu11J8'11

BhaiW Bh4i

Das Gupta/.

ST TPREME COURT REPORTS [rg64]

1964 any tax under the notification.

We are informed that in Shot• of Madh1• tact where importers dealt with goods other than imported _?,..,. goods the sales of such other goods were in fact excluded llhaiW. IJ!wi from tax.

The learned Advocate-General of Madhya

DtU G•pt• J. Pradesh who appeared before us in support of these appeals suggested that tha~ was done by the State Sales Tax Authorities on a mistaken interpretation of the law.

We do not think so. In our opinion, the only reasonable interpretation of the. notification as it stands, viz., that tax on tobacco leaves, manufactured tobacco and tobacco used for Bidi manufacturing would be payable at the point of sale by the importer, is that only the sale of goods which

the importer had imported would be liable to tax and not &ale of any other goods by him. If the intention had bCCll

as. suggested by the learned Advocate-General that though . the tax is payable at the point of sale by an importer the

iiale by the same person of good> manufactured or produced in Madhya Bharat would also be liable to tax, the word "importer" would not have been used in column 3 but the word "dealer" would have been used and the point of sale would have been indicated by some othec words as the "first sale in Madhya Bharat" or "the sW. t.o the retailer in Madhya Bharat" as the rule-1p.aking authority chose.

The matter becomes even more clear if in column 3 we read for "importer" the definition of "importer of goods" in s. 2 ( i) of the Act. Reading this we find that the point of sale in Madhya Bharat at which the tax is payable i.s the sale "by the dealer who brings or causes to be brought into Madhya Bharat any goods from outside for the purpose of processing, manufacturing br sale" or ''who purchases goods in Madhya Bharat for the purpose of sale from a dealer who does not ordinarily carry on business iD

Madhya. Bharat." When only such a sale is being made the point at which the tax is payable, there is hardly any scope for a serious argument that the notification was intended to make sales by that same dealer of goods manufactured or produced in Madhya Bharat liable to tax.

It may not be out of place to illOtice in this connection the distinction made by s.3 ofthe Madhya Bharat Sales

6 S.C.R.

SUPREME WURT REPORTS

Tax Act between sales bY. a dealer who imports gooda 1'64 lcl.(a)] and other dealers [els. (b) and (c)]. It is not un- St•t• ., lltullrya .!Casonable to think that the Act itself contemplated the '"*"' Bales by an importer of goods as meaning only sab by him .frd!i •i..1 of goods imported by him into Madhya Bharat.

Apart - from this, it has to be noticed that admittedly the notifica- DIM <lqta J, tion \lid not make dealers who dealt only in home grown or home produced tobacco liable to pay the tax.

That by lbelf would be sufficient to bring in the vice of discrimination which is the purpose of Art. 304(a) to prevent.

There can, therefore, be no. escape from the conclusion that similar goods manufactured or produced in the State of Madhya Bharat hav'e not been subjected to the tax which tobacco leaves, manufactured tobacco and tobacco used for Bidi manufacturing, imI)Orted from other States have

to pay on sale by the importer. J'his tax is, therefore, not within the saving provisions ' of Art. • 304 (a) .

As ruready • , 1/ I pointed out it contravenes the provisions of Art., 301 of tbe Constitution.

The tax has therefore been rightly held by the High Court to be invalid.

It is clear that the assessment of tax under these notifications was thus invaliil in law.

A pottion of the tax thus assessed has been already vaid by _the petitioners.

It cannot now be disputed that this payment was made under a mistake within s. 72 of the Indian Contract Act and so the Government to whom the payment has been made by mistake must in law repay it.

The question is whether the relief of repayment has to be

10ught by the tax-payer by an action in a civil court or whether such an order can be made by the High Court in exercise of its jurisdiction under Art. 226 of the Constitution. The jurisdiction conferred by Art. 226 is in very

wide terms.

This Article empowers the High Court to give relief by way of enforcement of fundamental rights and other rights by issuing directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitiol"., quo warranto and certiorari. According to the petitioners a writ in the nature of mandamus can be appropnately used where r. oney has been paid to the Government by mistake to give relief by commanding repayment

1964 of the same.

That in a number of cases the High Courts Stat• of Madya have used the writ of mandamus to enforce such repay-

PradtJh ment is not disputed.

In a recent case in Firm Mehtab •• Bhailal Bhai Majid & Co., v. The State of Madras(') this Court made,

DOI Gupta 1. in a petition under Art. 32, an order for refund of tax illegally collected from the petitioner under Rille 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939.

The queotion whether the Court has this power to order refund was not however raised there.

In Sales Tax Officer, Banaras v. Kcmhaiya Lal Mukundlal

Saraf(') the appellants disputed the correctness of the High Court's order made in an application under Art. 226 of the Constitution directing refund of taxes that had been paid ' under the U.P. Sales Tax Act on the respondent's forward transactions in silver bullion.

After the levy of sales tax on such transactions was held to be ultra vires by the High Court of Allahabad the respondent asked for refund of the tax paid and when that was refused he applied to the High Court under Art. 226 of the Constitution for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected.

The order made in this case by the High Court for refund was affirmed by this Court in appeal.

In this case also the power of the High Court to order such refund was not challenged either before the High Court or before this Court.

We see no reason to think that the High Courts have not got this power. If a right has been infringed-whether a fundamental right or a statutory right-and the aggrieved party comes to the court for enforcement of the right it will not be giving complete relief if the court merely declares the existence of such right or the fact that that existing right has been infringed.

Where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient.

It has been held by this Court that where there has been a threat only and the right has not been actually infringed an application

(') A.LR. 1963 S.C. 928.

(') [1959] S.C.R. 1350.

under Art. 226 would lie and the courts would give neces- 1964 llary relief by making an order in the nature of injunction. State of Mad/ry• It will hardly be reasonable to say that while the court will PradtJh grant relief by such command in the nature of an order of Bhailal. Bhai injunction where the invasion of a right -has been merely threatened the court must still refuse, where the right has Du GupttJ J, been actually invaded, to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made.

For the reasons given above, we are clearly of opinion that the High Courts have power for the 1;:mrpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of Jaw:

At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to

supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions.

It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power.

This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take inb consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it.

Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief.

Th:.is, where, ns in these cases, a person comes to the Court for relief under Art. 226 on the allegation that he has been asessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise .its discretion directing repayment.

Whetlrer repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application.

It may however be stated

1'64 as a general rule that if there has been unreasonable delay

State of Madhya th~ court ou8?t not ordinarily to lend its aid to a party by

Prad<JA this extraordinary remedy of mandamus.

Again, where

Bhai/a~· JJhai even if there is . no sue~ delay the Government or the statutory authonty agamst whom the consequential relief Dtu Gupllr J. is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on grounds like limitation, the Court should ordinarily refuse to issue the writ of mandamus for such payment.

In "clth these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution.

The prayer for refund has been allowed by the High Court in the applications out of which Civil Appeal Nos. 362-377 of 1962 and Civil Appeal Nos. 861-867 of 1962 and Civil Appeal No. 25 of 1963 have arisen.

It appears that the tax , provisions under which these taxes had been assessed and paid was declared void by the High Court of Madhya Pradesh in their decision in Mohammad Siddique v. The State of Madhya Pradesh on January 17, 1956.

Later, on August 27, 1957 the Appellate Authority, Sales Tax, i.ri Madhya Bharat made an order relying on the High Court's decision mentioned above.

The petitioners claim to have discovered their mistake in making the payments afrer they came to know of these decisions.

It is reasonable to think however that the petitioners must have discovered their mistake as soon as the High Court's decision in the case of Mohammad Siddique v. The Statt: of Madhya Pradesh dated January 17, 1956 became known to them.

All these 16 applications were made within less than three years from the 17th January, 1956. The High Court has taken the view that this was not unreasonable delay and in that view has ordered refund.

This appears to us to be a sound and judicial exerciSe of discretion with which this Court ought not to interfere.

It may be added

tht n:J triable issue as regards the availability of this consequential relief was raised before the High Court nor has any been suggested before us The order of refund mado

1'164

' by the High Court in these cases cannot therefore be dist11rheti.

State of Madhya

Pradesh The position in Civil Appeal Nos. 861 to 867 of 1962 is however different. The applications out of which these appeals have arisen were made in September 1959, i.e., about three years and eight months after January 17, 1956 when the High Court of Madhya Pradesh gave their decision declaring the tax provisions in question to be void,

It was necessary for the High Court to consider this question of delay before any order for refund was made.

It does not appear however that any attention was paid to this question.

In making the orders for refund in each of these cases the High Court merely said this:-

'"The present case is governed by Bhailai Bhai's Case (1960 M.P.C. 304). Learned Government Advocate formally raised the questiOn of the remedy open to the petitioner for refund of tax in order to keep the point open in the Supreme Court. . We accordingly allow this petition and issue a writ directing the opponents to refund to the applicant firm the amount of tax collected from it during the above-mentioned period."

The learned Judges appear to have failed to notice that tile delay in -these petitions was more than the delay in the petition made in Bhailal Bhai's case out of which Civil Appeal No. 362 of 1962 has arisen. On behalf of the respondents-petitioners in these appeals (C.A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund.

He argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution.

Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought

tU-t'9 S.C. 18

Bhailal Bhai

Dtu '1-upta J.

!!!!_ may ordinarily be taken to be a reasonable standard by St•ll of Madhya wluch delay in seeking remedy under Art. 226 can be

Prndesh measured.

The Court may consider the delay unreason- "· •uilal Bhai at>le even if it is less than the period of limitation prescribe<l lier GNptd J. for a civil action for the remedy but where the delay is more than tlus period, it will almost always be proper ror the court to hold that it is unreasonable.

The period ot limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when che mistake is known.

If the mistake was known in these cases on or shortly after January 17, 1956 the delay m making these applications should be considered unreasonable. lf, on the other hand, as Mr. Andley seems to argue, the mistake was discovered much later, this would be a controversial fact which cannot conveniently be decided in

writ proceedings.

In either view of the matter we are of opinion the orders for refund made by the High Court U. these seven cases cannot be sustained.

The application out of which Civil Appeal No. 25 of 1963 has arisen was also made in 1958, that is, within less than three years from the date of the High Court's decision in Mohammad Siddique v. The State of Madhya PradesJi.

The High Court was therefore right in stating in its judgment in this case that it is governed by Bhai/al Bhai's case.

We see no reason to interfere with the order for • .; fund made by the High Court in this case.

In the result, Civil Appeals Nos. 861 to 867 of 1962 are allowed in part and the orders for refund made in those cases are set aside.

The petitioners will be at liberty to seek such relief as they may be entitled to in a civil court, if it be not ban-ed by limitation.

There will be no order as to costs in these cases. In two other appeals, viz., Civil Appeal Nos. 28 and 29 of 1962, the respondents have not appeared; so there will be no order as to costs in them.

In the other appeals which are dismissed, the appellant will pay costs to the respondents.

One hearing fee for all these appeals.

Appeals Nos. 861-867 partly allowed, other app:itls dismissed.

STATE OF MADHYA PRADESH

BHAILAL BHAI & ORS

K. c. PAS GUPTA

C. SHAH

Art. 226

Art. 301

s. 72

Indian Contract Act, 1872

Art. 301

Art. 304(a)

Madhya Pradesh

India

Art. 30

s. 72

Indian Contract Act

Bhailol Bhai

Art. 226

Art. 226

Limitation Act

M. Adhikari

I. N. Shroff

M. C. Setalvad

S. N. Andley

Rameshwar Nath

P. L. Vohra

S. N. Andley

P. L. Vohra

DAS GUPTA

State of Madhya

High Court of Madhya Pradesh

Art. 226

State of Madhya Pradesh

s. 5

Madhya Bharat Government

Madhya Pradesh Government

Art. 301

Art. 304(a)

Art. 301

Art. 304(a)

Art. 304

Art. 301

Madhya Bharat

1st day of May 1950

Section 5

s. 5

s. 5

April 30, 1950

May 22, 1950

21st January, 1954

January 22, 1954

22nd January 1954

Madhya

Bharat

Art. 30

Art. 301

Atiabari Tea Co.

Art. 301

Article 301

Art. 303

State of Madhya

s. 2

Madhya. Bharat

Tax Act

Art. 304(a)

s. 72

Indian Contract Act

Art. 226

Art. 226

High Courts Stat• of Madya

Art. 32

Art. 226

Sales Tax Act

High Court of Allahabad

Art. 226

Art. 226

Bhailal. Bhai

Art. 226

Art. 226

Art. 226

State of Madhya

Art. 226

January 17, 1956

August 27, 1957

17th January, 1956

State of Madhya

Pradesh

Bhailai Bhai

Supreme Court

Bhailal Bhai

Andley

Art. 226

Art. 226

Art. 226

Limitation Act

Bhai/al Bhai


'6 S.C.R.

SUPREME COURT REPORTS 275

SOM CHAND SANGHVI

BIBHUTI BHUSAN CHAKRA VARTY

(K. SuBBA RAo AND J. R. MuDHOLKAR JJ.)

Code of C1imi11al J'rocedure, 1898 (Act 5 of 1898), s. 191->l"COP• o/

The appellant made a complaint against the respondent, an Auistaat Commissioner of Police for having committed an offence under s. 348, Indian Penal Code, alleging that on the arrest of the appellant under s. 1208/420 Indian PeIJal Code, the respondent had refused to grant him bail until a c.crtain i:.um was paid or acknowledged in writing to be paid to the complainant. The Chief Presidency Magistrate issued process. Oa revision, the liigh Court quashed the process holding that sanction of. the State Government under s. 197 Code of Criminal Procedure ought to haYC

been obtained. On appeal by special leave. it was contended that the High Court in quashing the process had proceeded to decide on the merits of the case even though there was no material before it and therefore iii judgment could not stand.

Held:

(i) For considering whether s. 197 Code of Criminal Proc. -tiure would apply the Court must confine itself to the allegations made ia

the complaint. But that does not mean that it need not look beyond U. form in which the allegations have been made and is incompetent to 1111ce.rtain for itself their substance.

(ii) The .sanction of the appropriate authority for the respondeat't pr03ecution was necessary under s. 197 Code of CriminaJ Procedure. Whether a person chargetl with an offence should or should not be relcad

on bail was a matter within the discretion of the respondent and if whilt exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant waa DOt

ound to do, the respondent cannot be said to have acted otbenrile Illa in bis capacity as a public servant.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 90 of 1961.

Appeal by special leave from the judgment and order dated January 10, 1961, of the Calcutta High Court ill Criminal Revision No. 1545 of 1960.

Sukumar Ghose, for the appellant.

D. N. Mukherjee, for the respondent.

s. C. Sanglivl ... llbhutl Bhushan Chakravarty

January 21, 1964. The Judgment of the Court was delivered by

MunHOLKAR. J.-This is an appeal against the judgment of the Calcutta High Court quashing the issue lof I. process against the respondent.

The respondent is an Assistant Commissioner of Police in the City of Calcutta and the appellant had made a complaint against him alleging that he had committed an offence under s. 348, l.P.C. that is, wrongful confinement in order to extort a confession or compel restoration of property.

The facts as alleged by the appellant are as follows:

One Manohar!al Seth had lodged a complaint on July 28, 1960 against him and two other persons Fatehlal and Jaichand for offences under s. 120B/420, I.P.C. and S 420 l.P.C. Manoharlal Seth had alleged in his complaint that these persons had induced him to purchase a bar of brass for Rs. 6,000 on the representation that it was of gold and thus duped him.

Upon this complaint, investigation was taken up by the police. He came to know Manoharlal Seth in the course of his business.

They were on quite friendly terms in the beginning and later on considerable differences arose between him and Manoharlal Seth. As a result of that Manoharlal Seth told him that unless he settled his differences with Manoharlal Seth according to the latter's dictates he would put him into trouble through his friend, the respondent, and that it is because of this that Manoharlal lodged a complaint against him for cheating.

This complaint was thus a false complaint and it is common ground that ultimately it was dismissed by the Presidency Magistrate, 8th Court, Calcutta on January 2, 1961. ' Then according to the appellant, on August 3, 1960 at about 6-00 A.M. P. C. Kundu,, Sub-Inspector of Police attached to Burrabazar Police Station along with another Sub-Inspector S. Bhattacharya, visited his residence, searched his house and arrested him. Neither of them had any warrant with them for the search of the house or for the:

arrest of the appellant.

Upon enquiry by him from these l!IM persons they told him. that this was being done under the s. c. s..n, lirl -0rders of the respondent. After his arrest the apellant said BibhJ1ti "Bhw,._

that he was taken to the Burrabazar police station at about Chakrt1•11tl1 7-00 A.M. and then to Jorasanko Police Station and produced before T. K. Talukdar, Sub-Inspector in charge of that police station. From there he was taken to vanous places in Calcutta with a rope tied round his waist by Kundu and Bhattacharya and was eventually produced at about 12 noon before the respondent in his office at Lalbazar. There the respondent started threatening the appellant and asked him to settle the dispute with Manoharlal Seth and pay him Rs. 5,000 or to acknowle<jge in writing that he would pay this sum of money to Manoharlal Seth. At about 3-30 P.M. on the same day his brother Iswarilal accompanied by a lawyer Chakravarthy visited the resr, Jondent's office and sought the appellant's release on bail as the offence was a bailable one. The respondent, however, refused to grant bail saying that no bail would be granted until a sum of Rs. 5.000 was paid to Manoharlal Seth. The appellant says that he was detained at Lalbazar Police Station till 8-00 P.M. From there he was taken to Jorasanko Police Station and kept in the lock-up for the whole night. On the next day, that is, August 4, 1960 he was again produced before the respondent at Lalbazar where the latter repeated his threats and that after obtaining his finger prints and taking his photographs he was taken to the court of the Additional Chief Presidency Magistrate where he was released on bail at about 2-30 P.M.

On August 19, 1960 the appellant preferred a complaint before the Chief Presidency Magistrate, Calcutta, under s. 348 and s. 220, I.P .C. and s. I 3C of the Calcutta Police Act, 1866.

In so far as two of the persons named as accused therein, S. I. Kun du and S. I. Talukda:, he decided to issu~ process against them under s. 220 I.P .C. and s. 13C .of the Calcutta Police Act. - As regards the respondent, he

decided to issue process against him under s. 348, I.P.C.

Upon a revision application preferred by the respondent the High Court quashed the process issued against him by

Mudholkar '

1964 the learned Chief Presidency Magistrate. The ground urged s. c. S..., hvi before the High Court on behalf of the respondent was that aibliuti •Bhushan betorc; he could be proceeded against sanction of the State

Chakravarty Government under s. 197, Cr. P.C. ought to have been Mud,;;;;;,

1. obtained.

This contention was upheld by the High Court.

Ou behalf of the appellant Mr. Sukumar Ghose contends that the High Court in quashing the process has proceeded to decide on the merits of the case even though there was no material before it to do so and that therefore its judgment cannot stand.

It is true that for considering whether s. 197, Cr.PC. would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not lvok beyond the form in which the allegations have been made and is incompetent to ascertain for itself their 1mbstance.

Here the substantial allegation is that the

1 respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000 to Mauoharlal Seth who had lodged a complaint of cheating against the appellant and two others and that he declined to release him on bail. No doubt the appellant has made a grievance in his complaint that the respondent said that the appellant would not be released on bail unless he either paid the amount or acknowledged in writing his liability to pay this amount. Assuming that the allegation is true a!! that the thing boils down to is that the respondent refused to enlarge the appellant on bail and that he wanted the appellant to settle the matter with Manoharlal Seth. It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said tp have acted otherwise than in his capacity as a public servant.

For this reason the sanction of the appropriate authority for the respondent's prosecution was necessary under s. 197, Cr.P.C.

Mr Ghose, however, . contends that the appellant's 1964

detention in the respondent's office was illegal and that, s. c. San11i•i therefore, the respondent could not be said to have been in Bibhuti v.8huilwn a position to exercise any lawful authority with respect to Chakravor11 him. It is difficult to appreciate how the appellant's deten- Mudholkar I. tion could be said to be illegal because it was in pursuance of the investigation of the complaint lodged by Manoharlal Seth that he was arrested and brought for interrogation before the respondent. It was not disputed before us that investigation into Manoharlal's complaint had been ordered though there is a dispute as to whether it was ordered by the respondent or by the Deputy Commissioner of Police.

Whether it was by one or the other makes little difference.

We would like to make it clear that Mr. Ghose did not contend before us that the appellant's detention in the office of the respondent was illegal because his initial arrest was without a warrant.

But we may point out that a police officer is legally empowered to arrest a person alleged to have committed an offence under s. 420, I.P.C. without a warran!.

Such being the position the High Court was justified in q, ushing the process. Accordingly we dismiss this appeal.

Appeal dismissed.

0. S. RAMASWAMY & ORS. ·

v . ..

INSPECTOR-GENERAL OF POLICE, MYSORE

(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS

GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)

Stlltt Police Strvict-Sub-lnspector1 included in tligibility list of Cir1.:le

Jruptctor.s-RtorganUation of_ Statt1-Appointment tu Circle Iruptctor1 in new State-Rever1ion on return of 1enior o{fictr._, f rtduction in ra11k-My1ort Stniority Rult•, 19S1, r. 2(c)- H1derabad District Polict Mcnual, u. 399, 403, 486.

larumry., 21

275

SOM CHAND SANGHVI

BIBHUTI BHUSAN CHAKRA VARTY

K. SuBBA RAo

R. MuDHOLKAR JJ.

s. 191

s. 348

Indian Penal Code

s. 1208

Indian PeIJal Code

s. 197

Code of Criminal Procedure

s. 197

s. 197

Calcutta High Court

Sukumar Ghose

D. N. Mukherjee

C. Sanglivl

MunHOLKAR

s. 348

Manohar!al Seth

July 28, 1960

Fatehlal

Jaichand

s. 120B

I.P.C

S 420

Manoharlal Seth

Manoharlal

January 2, 1961

August 3, 1960

P. C. Kundu

Burrabazar Police Station

S. Bhattacharya

Burrabazar police station

Jorasanko Police Station

T. K. Talukdar

Calcutta

Kundu

Bhattacharya

Lalbazar

Iswarilal

Chakravarthy

Lalbazar Police Station

August 4, 1960

Additional Chief Presidency Magistrate

August 19, 1960

Chief Presidency Magistrate, Calcutta

s. 348

s. 220

Calcutta Police Act, 1866

S. I. Kun du

S. I. Talukda

s. 220

s. 13C

Police Act

s. 348

I.P.C

Mudholkar

s. 197

Sukumar Ghose

s. 197

Cr.PC

Mauoharlal Seth

s. 197

Cr.P.C

Ghose

s 1964

s. 420

I.P.C

S. RAMASWAMY

INSPECTOR-GENERAL OF POLICE, MYSORE

P. B. GAJENDRAGADKAR

K. N. WANCHOO

K. c. DAS

GUPTA

J. C. SHAH

N. RAJAGOPALA AYYANGAR

larumry


6 S.C.R.

SUPREME COURT REPORTS 279

Mr Ghose, however, . contends that the appellant's 1964

detention in the respondent's office was illegal and that, s. c. San11i•i therefore, the respondent could not be said to have been in Bibhuti v.8huilwn a position to exercise any lawful authority with respect to Chakravor11 him. It is difficult to appreciate how the appellant's deten- Mudholkar I. tion could be said to be illegal because it was in pursuance of the investigation of the complaint lodged by Manoharlal Seth that he was arrested and brought for interrogation before the respondent. It was not disputed before us that investigation into Manoharlal's complaint had been ordered though there is a dispute as to whether it was ordered by the respondent or by the Deputy Commissioner of Police.

Whether it was by one or the other makes little difference.

We would like to make it clear that Mr. Ghose did not contend before us that the appellant's detention in the office of the respondent was illegal because his initial arrest was without a warrant.

But we may point out that a police officer is legally empowered to arrest a person alleged to have committed an offence under s. 420, I.P.C. without a warran!.

Such being the position the High Court was justified in q, ushing the process. Accordingly we dismiss this appeal.

Appeal dismissed.

0. S. RAMASWAMY & ORS. ·

v . ..

INSPECTOR-GENERAL OF POLICE, MYSORE

(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS

GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)

Stlltt Police Strvict-Sub-lnspector1 included in tligibility list of Cir1.:le

Jruptctor.s-RtorganUation of_ Statt1-Appointment tu Circle Iruptctor1 in new State-Rever1ion on return of 1enior o{fictr._, f rtduction in ra11k-My1ort Stniority Rult•, 19S1, r. 2(c)- H1derabad District Polict Mcnual, u. 399, 403, 486.

larumry., 21

G. s. Ramaswamy

•• /.

G. Polict.

Myvor~

?UPREME COURT REPORTS [r¢4J

All the petitioners were appointed Sub-Inspecton in the former Hydorabad State. They were considered for promotion as Circle Inspectors and their names were included in the eli1ibility list. On account of the merger of certain areas of the former State of Hyderabad into Mysore petitioners

..,.ere transferred to Mysore. The petitioners were promoted ad hoc Circle Inspectors from the eligibility list received from the former Hyderabad State and they continued to act for varying periods as such. When certain confirmed Circle Inspectors who were on leave or on deputation outside the State returned to the new State, the petitioners were ordered to be reverted.

When tha( happened, the petitioners filed writ petitions in the Mysore High Court in which they claimed that as they bad been put in the e1igilibity list by the former Hyderabad State, they were entitled u of right to promotion as Circle Inspectors and to Continue as such thereafter and the order of their reversion amounted to reduction in rank. They prayed for a writ, order or direction quashing the orders of reYersion and directing the State Government to continue them as Circle Inspectors and confirm them as such.

Their writ petitions were dismissed by the High Court and they came to this Court by special leave. They also filed writ petitions. in this Court in addition to the appeals. Two others who had not appealed against the orders of the High Court also filed writ petitions in this Court.

The contentions raised before this Court were that as their names were put in the eligibility list, they got an indefeasible right to promotion as Circle Inspectors, that after promotion on a temporary or oftic1aung

basis they got a right not to be reverted under any circumstances, that as they had worked for more than two years on probation, they became automatically confirmed under R. 486. that their reversions amounted to reduction in rank in view of R7 2 (c) and that they shou1d be considered senior to other Circle Inspectors who were promoted after they were promoted as Circle Inspectors and therefore they should not have been reverted but the other Circle Inspectors who were promoted after them as Circle Inspectors should have been reverted on the principle that junior most officiating persons must be reverted. Dismissing the appeals and writ petitions.

Held: The mere fact that a Sub-Inspector's name is once put in the eJigibility list does not give him an in'defeasible right to promotion as a Circle Inspector. Moreover, after promotion on a temporary or oftlciating basis, he does not get a right not to be reverted under any circumstances.

Rule 486 does not contemplate automatic confirmation after the proba· tionary period of 2 years. The provision in the nile that promoted officern will be confirmed at the end of their probationary period. is qualified by the words "if they have given satisfaction". The competent authority

must be satisfied about their work and the order of confirmation must be pas'°d by that authority.

Reversion in the present case does not amount to reduction in rant because the petitioners were never confirmed as Circle Inspecton and had no right to that post and their reversion wu on account of ollisenclea cl

service and not on account of any fault on their part. Reversion on 1964 account of exigencies of service as senior officers had co1ne back trom G S R-- deputation or from leave, did not amount to reduction in rank. · ~

The petitioners could not rely on R. 2(c) in the pecllliar circumstances prevailing in the State after re-organisation because promotions were made ad hoc without regard to inter se seniority of officers from different States. lt cannot be said that reversion of the petitioners was on act of discrimination.

G. Fo/ille,

Mysore

Sukhbans Singh v. State of Punjab. A.I.R. 1962 S.C. 1711, referred to.

CIVIL APPELLATE JURISDICTION.

Civil Appeal Nos. 972-977 of 1963.

Appeals by special leave from the judgment and order dated April 3, 1963 of the Mysore High Court in Writ Petitions Nos. 1380, 1179, 1246, 1259 and 1312 of 1962.

AND

Petitions Nos. 64, 90 to 94 and l73 and 17 4 , of 1963.

Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.

Purshottam Trikamdas and R. Gopa/akrislman, for the appellants (in C.A. Nos. 972-977 / l 963) and the petitioners (in Petitions Nos. 64 and 90 to 94 of 1963).

R. Gopa/akrishnan, for the petitioners (in Petition Nos. 173 and 174 of 1963).

S. V. Gup1e, Additional Solicitor General. B. R. L.

Iyengar and B. R. G. K. A char, for the res>pondent (In C.A.

Nos. 972-977 of 1963 and Petitions Nos. 64 and 90 to

91 of 1963).

B. R. L. Iyengar and B. R. G. K. Achar, for the respondent (in Petitions Nos. 173 and 174 of 1963).

January 21, 1964.

The Judgment of the Court was delivered by

WANCHOO J.-These appeals and writ pe!Itlons raise common questions and will be dealt with together.

The appeals arise out of six writ petitions filed in the Myore

Wa1U:hoo 1.

1964 High Court and six of the writ petitions filed in this Court

G. s. Ramaswamy are by the same petitioners who applied in the Mysore High v.

Court.

Two writ petitions (Nos. 173 and 174) have been f. <Ji,,::; ice, filed by two others. They also filed writ petJ'tions in the High Court, though they have not filed appeals from the Wtiltchoo J. decision of the High Court.

They will all be referred to as petitioners hereafter.

The case before the High Court was briefly this.

All the petitioners were appointed sub-inspectors in the former Hyderabad State, under s. 6 of the Hyderabad District Police Act (No. X of 1329 Fasli).

Under r. 399 of the Hyderabad District Police Manual, issued by the Government of Hyderabad under s. 10 of the Hyderabad Distncc Police Act, posts of circle inspectors were to be filled by promotion from tile rank of sub-inspectors.

The subsequent rules provided for the procedure for this purpose.

The names of selected sub-inspectors who were considered fit for promotion were sent by the Depnty Inspectors General of Police and the Commissioner of City Police of Hyderabad to the Inspector General of Police.

Thereafter a Board consisting of the Inspector General of Police and all the Deputy Inspectors General of Police. Commissioner of City Police, Hyderabad and Assistant Inspector General of Police interviewed the candidates and prepared an approved list of sub-inspectors fit for promotion. This approved list used to be called the eligibility list and promotions to the post of circle inspector used to be made from this list.

The case of the peunoners in the High Court was that their names were included in the eligibility list published in the month of October 1956 before the States Reorganisation Act (No.

XXXVII of 1956) came into force on November, 1, 1956.

They therefore contended that in view of the entry of their names in the e1ign>ility list they were entitled as of rignt to promotion to the post of circle inspector as and when vacancies occurred.

On the coming into force of the States Reorganisation Act, certain areas from the States of Bombay, Hyderabad, Madras and the whole of Coarg were made part of the new State of Mysore in addition to the existing State of Mysore.

In consequence, certain public servants belonging to these States from which areas were added to the old State of Mysore wre transferred to the new State

of Mysore thus fonned out of the old State of Mysore and 1964 the areas added to it.

Among these were the petitioners.

G. s. ;;;;;;;..., amy

Under s. 115 of the States Reorganisation Act, public servants so transferred were deemed to serve in connection with the aff.airs of the principal successor State.

Provision was also made for the establishment of one or more advisory boards for the purpose of assistance in regarel to the division and integration of services amongst the new

Stats and the ensuring of fair and equitable treatment to .all persons affected by the State Reorgar.isntion Act.

Sec tion 115 further provided that the conditions of service applicable immediately before the appointed day (name1y, November l, 1956) shall not be varied to the disadvantage of any person transferred to the new State except with tne prcviom, approval of the Central Government.

Section 116 ( 1) provided for the continuance of public servants in the same posts; bnt sub-s. (2) thereof laid down that no; hing in sub-s. (I) shall prevent a competent authority aftc:· the appointed day from passing in relation to any such person any order affecting his continuance in such post or

office, thereby recognising the right of the succes>or State inter :ilia to transfer officers anywhere in the new State after November 1, 1956.

The petitioners continued to serve in the new State and as they were in the eligibility list referred to above they were promoted as circle inspectors on various dates after N ovember l, 1956.

It inay be mentioned that eligibility lists were received in the new State of Mysore from all the States from which areas had been transferred to it under the States Reorganisation Act and these lists continued to be acted upon as and when vacancies arose in the cadre of circle inspectors.

It also appears that pending integration promotions were made from these eligibility lists ad hoc, or as they were called "ont of seniority", and continued to be so made pending integration.

The petitioners were thus promoted ad hoc circle inspectors from the eligibility list received from the forriier Hyderabad State and continued to act for varying periods as such. It appears further that the petitioners were ordered to be reverted when certain confinned circle inspector~ who were on leave or on deputation outside the State

J. G. Polict,

Mysore

Wanchoo /.

1964 returned to the new State.

Thereupon the petitioners filed ,6 , s. R,;;; aswamy writs before the High Court in which they claimed that as

•· they had been put in the eligibility list by the former Hydera- 1 'l; ys!:.lice, bad State, they were entitled as of right to promotion as circle inspectors and to continue as such thereafter and the order Wanchoo 1. f h · d o t e1r reversion amounted to re ucuon in rank.

They therefore prayed for a writ, order or direction quashing the orders dated September 6, 1962, ordering their reversion and directing the . State Government to continue them as circle inspectors and to confirm them as such.

Further during the course of arguments before the High Court, reliance was placed on r. 2 ( c) of the Seniority Rules framed by the Governor of Mysore in 1957 and the writ petitions before this Court are mainly based on that seniority rule to which we shall refer in due course.

The case of the State Government was briefly thi,. It was admitted th.1t after November 1, 1956, these offlcers were transferred to the new State of Mysore and eligibility lists were received from all the States from which territories and officers were tarnsferred to the new State of Mysore.

As however integration of various services was bound to take time, the new State, by virtue of the powers conferred on it under the States Reorganisation Act, started acting on the eligibility lists received from the various Stats in anticipation of integration and promoting sub-inspectors to the rank of circle inspectors from those eligibility lists on an ad hoc basis and this was made clear in the various orders that were passed from time to time by using the words "out of seniority" when such promotions were made. Eventually a provisional integrated seniority list of all sub-inspectors including those who were officiating as circle inspector (hereinafter referred to as 'the provisional list) was prepared in February 1958.

In 1962 when senior circle inspectors returned to the State from deputation, some officiating circle inspectors (other than the petitioners) were reverted. They filed writ petitions before the High Court in 1962 contending that even though they had been promoted later, they should not have been reverted in view of their position in the provisional list and that that list should have been adhered to and those junior to them in the provisional list should have been reverted.

This contention was accepted by the High

Court and in consequence reversions began to be made in 1964 accordance with the provision.al list in compliance with the G. s. Ramaswamy view taken by the High Court.

That was why the junior- 1

G •· P ,. most sub-inspectors according to the provisional list who My•o:'. ice, were in the eligibility list and who were officiating as circle inspectors were reverted.

In consequence the petitioners were also reverted when senior officers came back to the State. It was further urged that the eligibility lists gave no right to the sub-inspectors whose names were borne on those lists to promotion as circle inspectors, though it was not disputed that only those who were in the eligibility lists could be promoted as circle inspectors.

But the fact that a sub-inspector's name was in the eligibility list did not confer any right on him to promotion in view of the Rules.

Further it was contended that officiating circle inspectors could not claim confirmation as an automatic right after they had worked for a certain number of ye.ars as such and that they could only become confirmed circle inspectors when orders to that effect were expressly made by the Government In the present cases the petitioners were never confirmed by the Government as inspectors.

There was therefore no question of any reduction in rank. It is not in dispute that the petitioners were not reverted on account of any fault on their part; they had to be reverted only because of exigencies of service as senior inspectors had come back to the State from deputation or had returned from leave. It was urged that the reversion in the present case could not amount to reduction in rank and was in ordinary course due to exigencies of service.

As to r. 2(c) of the Seniority Rules, the case of the Government was that that rule governed the seniority of inspectors while they were aeting as such and had nothing to do with the question of reversion, and in any case considering th.at promotions had been made after November 1, 1956 on ad hoc basis, the rule would not confer any right on the petitioners and the Government was justified in following the provisional list in view of the observations of the High Court referred to above.

It was therefore contended that the petitioners had no right to the posts from which they were reverted and there was no reduction in rank and they were not entitled to any benefit of r. 2(c).

Wanchoo J.

1964 The High Court accepted the contentions raised on

G. s. omy behalf of the State and dismissed the petitions. Thereupon

Y. special leave was 0btained by six of the petitioners in the /. G. Police, H'gh C Mysore 1 ourt and that is how we have six appeals before us.

Wanchoo J.

These six appellants have also filed six writ petitions before this Court in addition to two other writ petitions filed by two ot)ler petitioners in the High Court who had not filed appeals.

The first two questions that fall for consideration are whether the fact that a sub-inspector's name is put in the eligibility list gives an indefeasible right to him to promotion, and whether after such promotion on a temporary or officiating basis he gets a right not to be reverted under any circumstances. We are of opinion that the fact that a subinspector's name is in the eligibility list gives him no right of the kind urged on behalf of the petitioners.

The rules in that behalf that are relevant are 399 to 403 of the Hyderabad District Police Manual.

Rule 399 provides that vacancies in the rank of circle inspector are to be filled by the promotion of selected sub-inspectors and r. 403 lays down that "no direct appointments to the rank 0f Circle Inspector will be made". Rule 400 prescribes the procedure for putting the names in the eligibility list.

Rule . lQ2 refers to sub-inspectors serving in the C.I.D. Rule 401 Jays down that sub-inspectors whose names are entered in the approved list will be interviewed by the Deputy Inspector General of Police in the course of his cold weather tour and each sub-inspector's work during the year will be examined and repo1t will then be made to the Inspector General of Police whether the officer had maintained his fitness for promotion or not.

Thus r. 40 I makes it clear that even after the sub-inspector's name is put in the eligibility list, his fitness for promotion is to be decided year by year and a report ha11 to be made whether he has maintained his fitness for promotion or not.

This obviously means that where a subinspector has not maintained his fitness his mme can be removed from the eligibility list.

It follows therefore that the mere fact that a sub-inspector's name is once put in the eligibility list does not give him an indefeasible right to promotion as a circle inspector.

Then there is r. 486 which governs promotions generally.

It lays down that promotion

cannot be claimed as a matter of right, though officers .and 1964 men of all ranks are entitled to expect promotion if they G. s. ;;;;;,_.,.., have good records, and if they are smart and efficient and ... have a thorough knowledge of their duties.

This again J. '1;,.%,~; u, clearly shows th.at merely because a sub-inspector's name is put in the eligibility list, he cannot claim promotion as a matter of right.

Rule 486 further provides that all officers who are promoted will be on probation for a period of two years. They may be reverted at any time during this period by the authority competent to promote them, if their conduct and work are not satisfactory, or if they are found unsuitable for the appointment to which they have been promoted.

This clearly shows that even where a sub-inspector has actually been promoted as circle inspector he remains on probation for two years and during that period he is likely to be reverted if his work and conduct are not found satisfactory. This again negatives the contention on behalf of the petitioners that they had an indefeasible right to promotion because their names had been put on the eligibility list and that they could not be reverted after they had once started acting as circle inspectors. Lastly, r. 486 provides that promoted officers will be confirmed at the end of their probationary period if they have given satisfaction.

This clearly shows that it is only when the probationary period is over and the promoted officer has given satisfaction during the whole of that iperiod that he will be confirmed.

It is clear therefore reading rr. 401 and 486 together that the mere fact that a sub-inspector's name is put in the eligibility list does not give him any indefeasible right to promotion. Further the fact that he is actually promoted, temporarily or as officiating, does not give him any right to continuance even during the period of two years' probation and he is liable to be reverted at any time even during those two years if his work is found unsatisfactory; it is only when the authority concerned has found that his work and conduct are satisfactory during the probation period that he can be confrmed.

The contention of the petitioners that they had any right under the eligibility list for promotion or that after they had actually been promoted, they had a right to continue in the post of circle inspector, therefore, must be negatived. -~

288 SUPREMk COURT REPORTS [rg64)

~ It has further been urged on the basis of r. 486 that as G. s. Ramaswamy the petitioners had worked for more than two vears on

1• a. •r. Police, probation, they became automatic11Iy confirmed ti'nder the Mysore said rule, and reliance is placed on the following sentence -,,_, hoo 1. in r. 486, namely, "promoted officers will be cofirmed at the end of their probationary period if they have given satisfaction". The law on the question has been settled by this Court in Sukhbans Singh v. State of Punjab('). It has been held in that case that a probationer cannot after the expiry of the probationary period automatically acquire the status of a permanent member of a service, unless of course the rules under which he is .appointed expressly provide for such a result.

Therefore even though a probationer may have continued to act in the post to which he is appointed on probation for more than the initial period of probation, he cannot become a permanent servant merely because of efflux of time, unless the Rules of service which govern him specifically lay down that the probationer will be automatically confirmed after the initial period of probation is over.

It is contended on behalf of the petitioners before us that the part of r. 486 (which we have set out above) expressly provides for automatic confirmation after the period of probation is over.

We are of opinion that there is no force in this contention. It is true th.at the words used in the sentence set out above are not that promoted officers will be eligible or qualified for promotion at the end of their probationary period which are the words to be often found in the rules in such cases; even so, though this part of r. 486 says that "promoted officers will be confirmed at the end of their probationary period", it is qualified by the words "if they have given satisfaction".

Clearly therefore the rule does not contemplate automatic confirmation after the probationary period of two years, for a promoted officer can only be confirmed under this rule if he has given satisfaction.

This condition of giving satisfaction must be fulfilled before a promoted officer can be confirmed under this rule and this condition obviously means that the authority competent to confirm him must pass an order to the effect that the probationay officer has given satisfaction and is therefore confirmed. The etitioners therefore cannot

(') A.I.R. 1962 S.C. 1711.

claim that they mmt b~ treated as confirmed circlo inspec- 1944 tors simply because they have worked for more than two G. s. llml' rears on in:obation; they can only become confirmed circle /. G. ~Po/U:i, '

inspectors 1f an order to that effect has been passed even My'"'' under this rule by the competent authority.

The first contention therefore that the petitioners before us have an in lefeasible right to promotion once their names are put in the eligibility list and that they are entitled to continue as circle inspectors thereafter if they have once been promoted, on temporary or officiating basis, cannot be sustained.

This brings us to the next question whether the reversion in the present cases can be said to amount to reduction in rank.

In view of what we have said above on the first point raised on behalf of the petitioners, it is clear that the petitioners cannot be treated as confirmed circle inspectors.

It is not disputed that they have never been confirmed as such.

It is also not disputed that they have not been reverted on account of any fault in their work.

The reversion bas been made simply because senior circle inspectors have come back to the State either from deputation or from leave and they have to be accommodated.

Such reversion therefore cannot amount to reduction in rank for two reasons, firstly, because the petitioners before us were never confirmed as circle inspectors and had no right to that post, and secondly, because the reversion is on account of exigencies of service and not on account of any fault on their part. Reversion on account of exigencies of service, as senior officers have come back from . deputation or from leave, cannot in our opinion amount to reduction in rank.

The contention of the petitioner that by this reversion they have been reduced in rank therefore fails.

The next point that has been urged is that in any case till final integration of service was made, the State Government was not entitled to take into account the provisional list of sul>-inspectors and could only proceed to give promotions and to make transfers regionwise according to the eligibility lists of former States from which the territories came to the new State and if that was done the petitioners being senior in their region could not be reverted.

We are of opinion that there is no force in this contention.

It is

134-159 S.C.-19.

W anchoo I.

IHf true that for some time the State Government did proceed . a. 8, amy °!1. this basis for thre was no integrated list, whether proy. v1s1onal or final, available; but that does not mean that under J. G. Police, the law it could not act on the provisional list once it was M:J1ore made till it was made final or that there was any estoppel

,,.,,,,,..,,, I. against the State Government in view of its having acted regionwise for sometime.

We have already indicated that territories from four States came to the old State of Mysore to form the new State of Mysore and that necessarily raised difficult question of integration, and so the State Government made ad hoc promotions regionwise or out of seniority .as was stated by it in various government orders.

But the State is bound to be treated as one unit for purposes of administration.

We may also refer to s. 116 ( 2) of the States Reorganisation Act, which makes it clear that after the appointed day the whole State will be treated as one unit and nothing would prevent the competent authority after the appointed day from passing in relation to any such officer allotted to the new State any order affecting his con tinuanci: in such post or office.

We cannot tl)erefore accept the contention that the State Government was bound till the final list of integration was made, to make transfers only regionwise.

We can see nothing in law which prevents the State Government from proceeding according to the provisional list after such list was prepared.

We are of opinion that the view taken by the Mysore High Court in the earlier writ petitions after the frawing of the' provisional seniority list is correct and the State C. vernment would be entitled to act on that fot subject of course to this th.1t if the provisional list is in any way altered when the final list is prepared, the State Government would give effect to the final list.

The contention of the petitioners that the State Government should have continued to make promotions and transfers regionwise only even after the provisional list was made therefore must fail.

It may be added that the State Government would be entitled and bound after the appoint ed day to treat the State as one whole unit and make such orders of transfer, as it thought fit, treating the whole State

as one unit.

Lastly, we come to the contention based on r. 2 ( c) of the Mysore Seniority Rules which was argued before the

High Court at the he.Jring though it was not specifically 19tU raised in the petitions there and this is the main basis of G. s. Ra"""""""' the writ petitions before us.

The rule was promulgated

1. G 'I. Poll by the Governor of Mysore from February 1958 and is in

MYIOI" ... these terms:-

"Seniority inter se of persons appointed on temporary basis will be determined by the dates of their continuous officiating in that grade and where the period of officiation is the same the seniority inter se in the lower gr.ade shall prevail." The contention on behalf of the petitioners is that in view of this rule, they should be considered senior to other circle inspectors who were promoted after they were promoted as circle inspectors and therefore they should not have been reverted but the other circle inspectors who were promoted after them as circle inspectors should have been reverted, on the principle that junior-most officiating phson must be reverted.

Now r. 2(c) as it stands merely provides for seniority between persons officiating in a higher rank when they are officiating as such; it is not an express rule as to the manner in which , reversion should be made where reversions are necessary on account of exigencies of service.

The rule therefore cannot be held as expressly providing for the principle of "last come first go" with which one is familiar in industrial law.

Strictly speaking therefore the petitioners cannot claim that r. 2 ( c) has been vioL'.tted by their reversion, for it does not provide for reversion and only rprovides for the seniority of officers who are officiating in a higher grade.

Even so, it may be conceded that when reversion takes place on account of exigencies of public service, the usual principle is that the junior-most persons among those officiating in clear or long term vacancies are generally reverted to make room for the senior officers coming back from deputation or from leave etc.

Further ordinarily as promotion on officiating basis is generally according to seniority, subject to fitness for promotion, the junior-most person reverted is usually the person promoted last.

This state of affairs prevails oridinarily unless there are extraordinary circumstances, as in the present case.

We have

Wanchoo I.

Ii I

t~ already set out above that the new State of Mysore was G .. s. &;;;;;, swamy formed of the territories of the old State of Mysore ; md the

I G 0 1. territories of four other States.

The consequence of this • , oict. ffi f th S MysOl'e . was that o cers rom the o er tates as well as from the

'"•nchoo. I. old State of Mysore became officers of the new State and the question of their integration inter se had to be decided in accordance with s. 115 of the States Reorganisation Aot.

That matter had to take time and therefore in the interest of administration ad hoc promotions continued to be m1de by the new State of Mysore after November I, 1956. The result of this ad hoc promotion was that the normal principle of promotion based on seniority subject to fitness in a State where there is no question of integration could not work and that is why we find that orders were passed by the new State promoting sub-inspectors from various eligibility lists with regard to seniority inter se of officers ; from various States.

It was only in 1958 that the provisional list of sub-inspectors was prepared.

When this provisional list was prepared it was found that the promotions which had till then been made out of eligibility lists received from various States were not in accordance with the provisional list and it so happened in many cases that sub-inspectors who were seniors in the provisional list and who were also in the eligibility lists of the various States were promoted after sub-inspectors who were junior in the provisional list though they were also in the eligibility lists. It was because of .these special circumstances arising out of the provisional list which began to be put into effect after 1958 that the situation arose that officiating inspectors who had been officiating for a longer time had to be reverted before officiating inspectors who had been officiating for a shorter time because of hie seniority in the provisional list.

We are therefore of opinion that it was because of the special circumstances after November I, 1956 that the petitioners and those like them who were really junior to other subinspectors in the eligibility lists came to be promoted earlier because there was no provision.al list available or in actual force when the promotions were made ad hoc and out of seniortiy.

It was only when the provisional list was made that inter se seniority of officers conting from various States became prima facie known. Therefore when reversions had

. to be mi de on account of exigencies of service in accordance with the provisional list it was bound to happen in view of the earlier ad hoc promotions that some officiating inspectors who had been promoted earlier had to be reverted in preference to others who had been promoted later in these c: rcumstances. It cannot therefore be said in view of the special circumstances prevailing in the State consequent on the States Reorganisation Act that the departure from the normal method of reversion was unjustified after the making of the provisional list.

The petitioners therefore cannot rely on r. 2(c) i~ the peculiar circumstances prevailing in the State after the reorganisation because promotions were made ad hoc without regard to inter se seniority of officers from different States.

It is only be- . cause of this special circumstance that it appears as if r. 2 ( c) is being disregarded in the matter of reversion for the promotions were made without regard to integrated seniority and resulted in sub-inspectors who were juniors in integrated seniority being promoted earlier.

We are therefore of opinion that r. 2 ( c) does not strictly apply in the present ..:ase.

But even on the basis that the junior-most should first be reverted in case reversion has to take place .:in account of exigencies of service, it cannot be said that the reversion of the petitioners is an act of discrimination, for the affidavit on behalf of the State Government shows that they are really junior-most in the provisional list though they might have in the exceptional circumstances indicated above acted longer as officiating circle inspector than others who have not been reverted.

We are therefore of opinion that the charge of discrimination based on the violation of r. 2 ( c) cannot in the special circumstances of this case be

sustained, for it is not in dispute that they were the juniormost according to the provisional list, when the orders of reversion were made.

The appeals and the writ petitions therefore fail and are hereby dismissed.

In the circumstances of this case, we make no order as to costs.

Appeals and petitions dismissed.

1!164

G. !J. iimOiW•"'J

Polk1, Mysor•.

W•nclloo /,

Ghose

s 1964

Manoharlal Seth

Manoharlal

s. 420

I.P.C

S. RAMASWAMY & ORS

INSPECTOR-GENERAL OF POLICE, MYSORE

P. B. GAJENDRAGADKAR

K. N. WANCHOO

GUPTA, J.

C. SHAH

N. RAJAGOPALA AYYANGAR

larumry

Hyderabad

Mysore

Mysore High Court

Article 32

Constitution of India

Purshottam Trikamdas

R. Gopa

S. V. Gup1e

B. R. L.

Iyengar

B. R. G. K. A char

B. R. L. Iyengar

B. R. G. K. Achar

WANCHOO

G. s. Ramaswamy

Mysore High v.

Court

Wtiltchoo

s. 6

Police Act

Government of Hyderabad

s. 10

Police Act

States Reorganisation Act

November, 1, 1956

Bombay

Madras

Coarg

s. 115

States Reorganisation Act

Central Government

Section 116

November 1, 1956

N ovember l, 1956

States Reorganisation Act

J. G. Polict

States Reorganisation Act

Wanchoo

G. s. Ramaswamy

s. 116

States Reorganisation Act

Wanchoo

s. 115

November I, 1956

States Reorganisation Act


SUPREME COURT REPORTS

1'64

K. KANKARATHNAMMA AND OTIIERS ,.,._,, Zl

STATE OF ANDHRA PRADESH AND OTIIBRS

(K. SuBBA RA<> AND J. R. MuoHOLKAR)

Land Acquisition Act. 1894 (1 of 1894), s. 18(1)(2)-No reference to

Court on the queJtion of quantum of compensation-Court if competent to deal with such matter-No objection to the proceeding1 before the court by the State-Defect if deemed to be waived.

On a dispute with regard to the entitlement to the compensation awarded to the appellants in respect of certain land acquired by the State, the Land Acquisition Officer made a reference to the court for the apportion ment of the compensation amount among the various claimants.

Six of the appellants did not accept the award of the Land Acquisition Officer and made applications to him for referring the matter, for determination by the court. No reference was made by him in pursuance of these appli catiolls When the matter came up before the Court it proceeded on the footing that the reference made to it was not merely limited to the appor tionment of compensation but also with respect to the amount of compensation.

No objection was raised by the State before the Subordinato Judge that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that matter.

When the matter went up in appeal before the High Court, the Government Pleader raised the question that in the absence of a reference on the question of quantum of compensation, the Court had no jurisdiction to consider that matter at all. The High Court, allowed this plea to be raised before it but ultimately negatived it. and it also modified the finding of the Court as to the amount of compensation. The appellants contended before the High Court that by reason of the failure of the 3tate to raise the plea before the Subordinate Judge as to the absence of a reference the State must be deemed to have waived the point. The High Court accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived.

 llcld: (i) On consideration of the relevant prov1s1ons contained in ".. t~ of t.he J_and Acq1Jisition Act, the jurisdiction of the court arises solely on the basis of a reference made to it. Wherever jurisdiction is given by • statute and such jurisdiction is only given upon certain specified terms contained therein, it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. Therefore, it was • case of lack of inherc-.t jurisdiction and the failure of the State to ob. feet to the proceedings before the Court on the ground of an absence ol

•cfcrencc in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of 'inherent jurisdiction, the defect cannot be waived nor can be aired by a:quiesccncc.

(ii) Tbe court had no jutisdiction to determine the amount of CO!ll ., ensation and thus go behind the order of the Land Acqui1ition OlllCor.

. Nusserwanjee Pestonjee and others v. Mtet Mynoodeen Khan Wullu4 Mter Subroodeen Khan Bahadur, 6 M.L.A. 134, Alderson v. Pdli•<r and unother, [1901] 2 K.B. 833 and Seth Badri Prasad and 01her8 v. Seth\ Nagarmal and others, [1959] Supp. (I) S.C.R. 769, relied on.

Venkata Krishnayya Garu v. Secretary of State, A.l.R. 1939 (P.C. 39- 60 M.L.J. 299, distinguished.

C1v1L APPELLATE JurusDicTloN: Civil Appeal No. 325 of 1962. '

Appeal from the judgment and decree dated August 4, 1959 of the Andhra Pradesh High Court in Appeal Suit No. 489 of 1954 .

K. Rhimsankaram and R. Ganapathy Iyer, for the appellants.

p. R'am Reddy, T. V. R. Tatachari and B. R. G. K.

Achar, for respondent No. 1.

January 23, 1964.

The Judgment of the Court was delivered by

MUDHOLKAR J.-This is an appeal against the judgment Mudlwlw 1. of the High Court of Andhra Pradesh by which it reduced the am11unt of compensation awarded to the appellants by the Subordinate Judge, Vijayawada in respect of certain lands bt:longing to them which were acquired by the State.

The lands in question are survey Nos. 281/2, 339/1 to 8 and 338/1 to 3 which are situate at a short distance from the town of Vijayawada and lie alongside the Vijayaw ida-Eluru Road. The Land Acquisition Officer had fixed Rs. 3,500 per acre for the first two of 1hese survey Nos. amt Rs. 4.000 per acre for the third survey number.

The learned Subordinte Judge granted a uniform rate of Rs. 10,000 per acre for the lands comprised in all the survey numbC?rs.

There were some disputes with regard to

!91-1 the entitlement to the compe.nsation for survey No. 339/1 K. KDn, karatli to 3 a11d the Land Acquisition Officer, therefore, made a , .. .i.ma reference to the Court for the apportionment of the com- . Stal~. ~I Andhra pensation amount among the various claimants. Six of the

Praduh appellants did not accept the award of the Land Acquisi- M•halkar J. lion Officer and made applications in writing to him within the time allowed by Jaw for. referring the matter for deter- "mination of the court. It is common ground that no reference was made by the Land Acquisition Officer in pursuance of these applications. When the matter came up before th<> Court it proceeded on the footing that the reference made to it by the Land Acquisition Officer was not merely limited to the apportionment of compensation but was also with respect to the amount of compensation. No objection w~,

however, raised on behalf of the State that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that niatter. . ... , When the matter went up before the High Court by way of an appeal from the judgment of the Subordinate Judge, the Government pleader raised the question that in the absenr.e of a reference on the question of quantum of compensation by the Land Acquisition Officer, the Court had no jurisdiction to consider that matter at all.

The High Court, though it ultimately reversed the finding of the court as to the amount of compensation, unfortunately allowed the plea to be raised before it but ultimately upon a consideration of certain decisions, negatived it.

We say unfortunately because this is not a kind of plea which the State ought at all to have taken. Quite clearly applications objecting to th!( rates at which compensation was allowed were taken in time by persons interested in the lands which were under acquisition and it was no fault of theirs that a reference was not made by the Land Acquisition Officer.

Indeed, whenever applications are made under s. 18 of the Land Acquisition Act, it is the duty of the Land Acquisition Officer to make a reference unless there is a valid ground for rejecting the applications such as for instance that the applications wer~

barred by time. Where an officer of the State is remiss in tl\e performance of his duties in fairness the State ought not to take advantage of this fact.

We are further of th•

1964 .opinion that the High Court, after the plea had been raised, would have been well-advised to adjourn the matter for enabling the appellants before us, who were res_; iondents in the High Court, to take appropriate steps for compelling the La,1d Acquisition Officer to make a reference.

K. K.ankaralJi.

State of .A.ndhro

Pradesh

All the same since the point was permitted to be urged before it by the High Court and has been raised before us on behalf of the State it is necessary to decide it On behalf of the appellants it was contended before . the High Court that by reason of the failure of the State to raise the plea before the Subordinate Judge as to the absence of a reference the State must be deemed to have waived the point.

The High Court accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived.

In our opinion the view of the High Court is not correct.

Section 12( 1) of the Land Acquisition Act provides that after an award is filed in the Col1ector's of!kc it shall. except

as provided in the Act, be final and conclusive evidence as between the Collector and the persons interested of the true area znd value of the land and the apportionment of the compensation among the persons interested. The only manner in which the finality of the award can be called into question is by resort to the provisions of s. 18 of the Land Acquisition Act, sub-section (1) of which reads thus:

"Any person interested who has not accepted th~ award may, by written application to the C0llector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested."

The proviso to sub-s. (2) prescribes the time within which an apnlication under sub-s. (l) is to be made. Section 1 !J

provldes for the making .of a reference by the .colle:tor and i!pCCiiies the metters which are to be comprised m that

Mudholkar 1.

196-1 reference.

Thus the matter goes to the court only upon a K. Kankarath reference made by the Collector. It is only after such a '""; ma reference is made that the court is empowered to determine State o/ Andhra the objections made by a claimant to the award. Section 21

l'radeih t th f th eed' res nets e scope o e proc mgs before the court to Mlldholkar J. consideration of the contentions of the persons affected by the objection.

These provisions thus leave no doubt that the jurisdiction of the court arises solely on the basis of a reference made to it.

No doubt, the Land Acquisition Officer has made a reference under s. 30 . of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the varioUJ claimants. Such a reference would certainly not invest the court with the jurisdiction to consider a matter not directly connected with it. This is really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pe1tonjee & Ors. v. Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor(') wherever jurisdiction is given by a statute and such jurisdiction .is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore, a case of Jack of inherent jurisdiction and the failure of the s•atc to object to the proceedings before the court on the ground of an absence of reference in so far as the determin1tion of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.

Jn Alderson v. Palliser & A nr. ( 2 ) the Court of Apoeal held that where the want of jurisdiction appears on the face of the proceedings. it cannot be waived.

In Seth Badri Prasad & Ors. v. Se h Nngarmal and Ors.(") this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in

(') 6 M. !. A. 134 at 155. (')

(1901) 2 K. B. 833. (') [ 19591 Supp. (1) s.c.R. 169.

the case. The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu v. Secreiary of State(').

In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings.

In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisition Officer, in that case the Collector had made a reference though in making it he had committed an error of Jaw in that he acted upon the application of a -person who had been found to have no interest in the land. Disagreeing with the High Court we, therefore, hold that the Court had no jurisdiction to determine the amount of compensa•ion and thus go behind the order of the Land Acquisition Officer.

Upon this short ground tlie appeal must be dismissed.

We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would jus•ify interference with the conclusions arrived by the High Court.

For determining the amount of compensation seven sale deeds were filed, Exs. Al to A4, on behalf of the State and Bl to B3 on behalf of the anpellnnts.

A synopsis of the sale deeds has been made by the High Court in i•s judgment and we can do no better than to reproduce it: --- ·-----

St. Exhi- Date E"<t~1.t of AmJun.t Rate per Proximity of the No. bit land acre site acquired Acs. cts.

Rs.

Rs.

A-1 15-z-46 0-40} 1,750 4,240 Opposite to the uit }and and abutt1ng the main road,

A-2 25-8-46 0-651 2,500 3,800 Some distnce away

from the site of the acquired land ti>- wards Eluru.

(')A. I. R. 1939 P, C. 39; 6o M. L. J. 399,

IP64

1'.. Link.,.,,..

lillllHilU

•• Sta11 of A.tt4/w

l'rodull

/(, Lnkarallt-

1iammo ...

Stal• of Andhra

Prade1b

Mudho/kar J.

A-3 9-10-46 1-00 4, Soo 4,500 Very near the acquired land the same vendee.

A-4 !)-10-46

IOO 4,500 . 4,500 Part of the same site,

and the vendee. s.

B-1 14-10-46 0-70 7,000 10,000 5 furlongs away from

t;.c suit site and uearer .bezwari.a.

B-2 14"-41 l-09 Just over 5 furJongs away to- 12,000 12)000 wazd3 Bci; wada.

B-3 24-1-46 0-36 r,850 s, oJO It is a pa.rt and pared of ti:1e ~1:1n1e 1u11d th;, ll is suught to be acqu1red. -----·- ---------- --- --------

Out of these sale deeds Exs. Al and A2 were rejected by the High Court, Al on the ground that it is several months earlier than the date of notification under S 4 of the Act and Ex. A2 on the <; round that the land comprised in it is

some distance away from the land under acquisition and is

'llso further away from Vijayawada than this land. The High Court similarly rejected Ex. B-2 on the ground that tile transaction was entered into four months after the publication of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs from the land acquired.

It has apparently rejected also Ex. B3, though the land sold thereunder is a part and parcel of the same land which is sought to be acquired.

The ground appears to be that the land sold thereunder is 011ly 36 cents in area. It has accepted Exs. A3 and A4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these Jami>.

In so far a~ Ex. B 1 is concerned the High Court ha5 taken the view that thou,; h it bears the date of October 14, 1946 the cir-.

cumstancs tlwt :t was actually registered on February 13, I 94 7 and som~ of the stamp papers used were in the names of persom unconnected with the transaction shows that it has rea'ly been ante-dated so as to make it appear to be

earlir io point of time than the notification.

In our opinion what the High Court has said about these three exhibit~. Bl, B2 and B3, sems to have considerable force.

At any rate we do not think that there are lll1Y substantial grounds upon which we can look at these transact10ns in a different way. If these documents go away, as also Exs. Al and A2, we are left with only Exs.

A3 and A4. Some argument was advanced before us to the effect that the lands comprised in the transactions repre- !iented by these documents have no direct access to tne road and that, therefore, they could not have fetched a good price.

Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate.

As regards access, it is sufficient to say that they are parts of the same field which abut on the road, though the portions sold do not themselves abut on the road.

Since the lamls :;:; Id under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way

over the land unsold so as to have access to the road.

In the circumstances we hold that the appeal is without substance. Accordingly we dismiss it with costs.

Appeal dismissed.

RANI RATNA PROVA DEVI RANI SAHEBA OF

DHENKENAL

STATE OF ORISSA AND ANOTHER

(P. B. GAJENDRAGADKAR,

K. N. WANCHOO, K. C. DAS GUPTA, I. c. SHAH AND N. RAJAGOPALA AYYANGAR JI.)

ConJtitutio11 of India, 1950, Arts, 14 and 366(22)-0rissa Private Landr

of Rulers (Assessment of Rent) Act (13 of 1958), 11. 5 and 6- Validity-''Rulet', meaning of.

The petitioners in these three writ petitions challenged the operative provisions of the OrisSa Private Lands of Rulers (Assessment of Rent) Act, 1958 and the Rules framed thereunder. These petitioncro posses•

l9M

K. Kllllkarath-

...

Stilt< of Andhra Pradesh

Mudhalkar I.

lan•Vf, 11

64

K. KANKARATHNAMMA AND OTIIERS

Zl

STATE OF ANDHRA PRADESH AND OTIIBRS

Land Acquisition Act

s. 18(1)(2)

K. Rhimsankaram

R. Ganapathy Iyer

p. R'am Reddy

T. V. R. Tatachari

B. R. G. K.

Achar

MUDHOLKAR

High Court of Andhra Pradesh

Vijayawada

Praduh

s. 18

K. K.ankaralJi

State of .A.ndhro

Pradesh

Section 12( 1)

s. 18

Section 1

K. Kankarath

Section 21

Mlldholkar

s. 30

Bhimasankaram

S 4

P. B. GAJENDRAGADKAR

K. N. WANCHOO

K. C. DAS GUPTA

I. c. SHAH

N. RAJAGOPALA AYYANGAR

Private Landr

of Rule