M. R. PATEL v.

STATE OF BIHAR AND OTHERS

January 5, 1965

[P. B. GAJENDRAGADKAR, C.J., M. HIDAYATULLAH, 1. C. SHAH,

S. M. S!KRI AND R. S. BACHAWAT 11.J

Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act 2 of 1915}, u. 8, 35, 38 to 91-Board of Revenue-Issue of Directions-Whether could increase security deposit-Powers of Revision-If exercisable

suo motu-Limitation.

Consequent upon a direction by the Board of Revenue, Bihar, fixing tho security deposit ot Excise shops working under a certain system, the Commissioner of Excise directed realisation of the defecit in the security depooit of the appellant's shops.

The appellant moved the Board ot Revenue for revision of the Excise Commissioner's order. The Board of Revonue held that it was open to the appellant to move the Excise Com missioner for relief.

Subsequently on the appellant's motion the Exciso Commissioner in supersession of his previous order, directed that in the special circumstances of the case, the security depoit in respect of the appellant's shop need not be increased. In spite of a representation made by the Deputy Commissioner, the Excise Commissioner refused to revise his order. At the request of the Deputy Commissioner the Commissioner of the Division referred the matter to the Board of Revenue. After hearing the appellant, in exercise of its powers of revision under s. 8 of the Act the Board, suo motu, set aside the order of the Excise Commissioner with the direction that until the expiry of the current licences there would be no change in the amount of security, but proper security in terms of the eeneral directions by the Board should be demanded from the appellant at the time of the renewal of the licenses. In appeal, HELD : (i) Neither the orginal order nor the subsequent order was passed by the Excise Commissioner under s. 35 on a consideration of the matters referred to in that section. The finality of s. 35 did not attach to these orders and the Board of Revenue had ample power to revise them under s. 8. [696 B-C]

(ii) On a true construction ot ss. 38 and 91 of the Act, the Board in exercise of its powers under s. 38 road with s. 91 could from time to time issue general directions with regard to the conditions of any licence sranted under the Act including the amount of security to be deposited by the licensee. [696 G-H]

(iii) Instruction No. IOI (10) of the Board of Revenue at p. 30 of Vol. III of the Bihar and Orissa Excise Mannual, 1955 Ed. read with Board's circular letter No. 8624 dated September 9, 1956 did not prevent onhancement of security at the time of the renewal of license. [ 697

C-DJ

(iv) The Board ot Revenue may exercise its powers of revision under

1. 8(3) suo motu. [697 E-F]

(v) In a case where the Board exercises its power of revision of its own motion, no question of limitation arises. [697 HJ CML APPELLATE JURISDICTION: Civil Appeal No. 331 of 1962.

SUPRBMB COURT REPORTS

(1965) 2 S.C.ll.

Appeal by special leave from the Resolution dated October 4, A 1959 of the Board of Revenue, Bihar, in Case No. 124 of 1959.

Rajeswari Prasad and S. P. Varma, for the appellant.

C. K. Daphtary, Attorney-General, R. K. Garg, S. C. A.garwala and D. P. Singh, for the respondents.

The Judgment of the Court was delivered by

Bachawat, J. The appellant holds yearly licenses for the retail sale of country spirit in respect of six shops in the town of.

Jamshedpur working under the sliding scale system under the Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act 2 of

1915) hereinafter referred to as the Act. A total sum ot Rs. 11,099 was demanded and paid as security in respect of all the licenses.

The original licenses in respect of the six shops were issued long ago and were renewed from year to year.

By an order dated June 27, 1956, the Board of Revenue, Bihar directed that "the security deposit of an Excise shop working under the sliding scale system is hereby fixed as equivalent to two months' average license fees of the shop." The security depos!t payable by the appellant on the basis of this direction would amount to about Rs. 68,000. On November 14, 1956, the Commissioner of Excise, Bihar directed the Deputy Commissioner, Singhbhum to realise from the appellant the deficit in the security deposits of his shops.

This order was communicated to the appellant on December 7, 1956. On January 9, 1957, the appellant filed a petition before the Board of Revenue, praying for a

revision of the order of the Excise Commissioner dated November 14, 1956.

By order dated March 20, 1957, the Board of Reve>- nue held that the merits of the appellant's case need not be examined at that stage, and observed that the order of the Excise Commissioner would constitute no bar to the appellant moving the Commissioner for considering the special circumstances, if any, of his case on merits and, for this purpose, it would be open to the appeilant to move the Commissioner in an appropriate manner.

Subsequently, the appellant moved the Excise Commissioner for reconsideration and setting aside of his previous order dated November 14, 1956. By his order dated March 5, 1958, the Commissioner of Excise, in supersession of his previous order, directed that in the special circumstances of the case, the security deposit in respect of the appellant's shops need not be increased and the appellant could continue to manage the shops on the -existing total security of Rs. 11,099 only.

In spite of a representation made by the Deputy Commissioner, Singhbhum, the

Excise Commissioner refused to revise this order. On June 27, 1958, at the request of the Deputy Commissioner, Singhbhum, the Commissioner, Chotanagpur Division, referred the matter to the Board of Revenue. On April 24, 1959, the Board of Revenue

directed the issue of a notice to the appellant asking him 'to show cause why he should not be ordered to pay the difference between

the prescribed security deposit and the amount already deposited.

By a petition dated July 30, 1959, the appellant showed cause.

At the hearing of the case before the Board of Revenue, the appellant was represented by counsel. By an order dated October 4, 1959, the Board of Revenue, in exercise of its powers of revision under s. 8 of the Act, set aside the order of the Com• missioner of Excise dated March 5, 1958, with the direction that until the expiry of the current licenses on .March 31, 1960 there

would be no change in the amount of security, but the proper security in terms of the general directions issued by the Board should be demanded from the licensee at the time of the renewal Of the licenses, wiih effect from the next licensing year.

The appellant now appeals to this Court from this order by special leave.

On behalf of the appellant, Mr. Rajeshwari Prasad contended that in view of s. 35 of the Act, the Board of Revenue could not under s. 8 of the Act revise the order of the Excise Commissioner dated March. 5, 1958. There is no substance in this contention.

Section 8 ( 3) provides that the Board may revise any order passed by the Excise Commissioner.

Section 35 provides that the Excise Commissioner may, on a consideration of the list, objections and opinions sent to him by the Collector under s. 34, modify or annul any order passed or any license granted by the Collector, and notWithstanding anything contained in s. 8, his orders shall be final.

The Excise Commissioner did not pass the order dated March 5, 1958 in exercise of his powers under s. 35, on a consideration of the list, objections and opinions sent to him

under s. 34. He passed the order in. exercise of his general powers of control over the collector and the Excise Department under ss. 8; and 7(2)(a) read with s. 2(7) of the Act.

During tho currency of the licenses issued to the appellant for the year 195(;.57, a question arose whether the additional security should be demanded from the appellant in view of the general directions iasued by th~ Board of Revenue on June 27, 1956. By his order B dated November 14, 1956, the Excise Commissioner directed that tH additional security should be realised from the appellant. On a, nwision petition filed. by the af>pellant under s. 8, the Board of

SUPREME

COURT

REPORTS [1965] 2 S.C.ll.

Revenue by its order dated March 20, 1957, permitted the appellant to move the Excise Commissioner for reconsideration of his order dated November 14, 1956. On being moved by the appellant under. the liberty so granted by the Board of Revenue, the Excise Commissioner by his order dated March 5, 1958 reviewed and set aside his previous order on a consideration of the general directions issued by the Board of Revenue, the Board's order dated March 20, 1957 and the special circumstances of the case.

Neither the original order dated November 14, 1956 nor the subsequent order dated March 5, 1958 was passed by the Excise Commissioner under s. 3 5 on a consideration of the matters referred to in that section.

The finality of s. 35 did not attach to these orders and the Board of Revenue had ample power to revise them under s. 8.

Mr. Prasad next referred us to s. 40 of the Act and the stan• dard form of license for the retail vend of country spirit, and contended that only the authority granting the license could fix the amount of the security, and one of the conditions of tho license was that the licensee would be required to deposit .only the amount so fixed but the Board of Revenue by its order dated October 4, 1959 illegally and in excess of its powers altered the amount of the security so fixed and the corresponding condition in the license for the deposit of the amount.

This argument is based on a misreading of the order of October 4, 1959, and must be rejected. By that order, the Board expre; ssly directed that there would be no change in the amount of the security during the currency of the license. The licenses were due to expire on March 31, 1960.

The Board directed that if and when the licenses were renewed with effect from the next licensing year, the proper security should be demanded from the licensee as a condition of the renewal.

No_ exception can be taken to this direction.

The licensee had no vested right to a renewal of the license.

Section 45 of the Act provides that he shall have no claim to its renewal.

The licensing authority was not bound to renew the license.

If, in its discretion, it granted a renewal, it could require the licensee to give proper security as a condition of the renewal.

On a true construction of ss. 38 and 91 of the Act it must be held that the Board, in exercise of its powers under ' 38 read with s. 91, could from time to time issue general directions with regard to the conditions of any license granted under the Act including the amount of the security to be deposited by the licensee.

In exercise of its powers under ss. 38 and 91, the Board had fixed the security deposit of an Excise shop

working under the sliding scale system as equivalent to two months' average license fees of the shop.

The Board was entitled to direct, as it did by the order dated October 4, 1961, that the general directions issued by it under ss. 38 and 91 should be observed and carried out by the licensing authority and the proper security in accordance with those directions should be demanded if and when the licenses were next renewed.

Mr. Prasad next contended that the direction for the increase of the security at the time of the renewal of the licenses is contrary to the instruction No. 101 ( 10) of the Boarc: of Revenue at p. 39 of Vol. III of the Bihar and Orissa Excise Manual, 19S5 Edn. There is no substance in this contention. In its order dated October 4, 1959, the Board of Revenue exhaustively reviewed all the relevant instructions issued by it from time to time, and rightly pointed out that instruction No. 101 (10) read with the Board's circular letter No. 8624 dated September 9, 1956 did not prevent of the security at the time of the rrnewal of the licenses.

Mr. Prasad lastly argued that (a) the power of revision under s. 8(3) of the Act could be exercised by the Board of Revenue only on an application by an aggrieved party, and (b) the proceedings in revision in the instant case were barred by limitation.

There is no substance in these contentions. The Board of Revenue may exercise its powers of revision under s. 8 (3) SUD mDtu.

No period of limitation is prescribed by the Act for exercise of the power of revision under s. 8 ( 3). Mr. Prasad drew our attention to paragraph 71, Chap. V of Part III of the Bihar Practice and Procedure Manual, 1958, pp. 99 and 100, which provides that where there is no provision of law as to the period within which an application for revision may be allowed, the application for revision should be preferred within one month of the date of the Commissioner's order deducting the time occupied in obtaining a copy of the order, but the Board has a discretion to admit the application for revision preferred after one month.

In the instant case, in its order dated October 4, 1959, the Board stated that it would exercise its powers of revision suD mDtu.

In a case where the Board exercises its power of revision of its own motion, no question of limitation arises.

Moreover, the Board held that this was a fit case for interference even after the expiry of the ordinary period of limitation.

No other arguments were advanced before us.

We see no reason to interfere with the Board's order. The learned Attorney-

SUPREME COURT REPORTS

(1965] 2 S.C.R.

General raised a preliminary objection as to the maintainability of the appeal on the ground that the Board is not a tribunal within the meaning of Art. 136 of the Constitution. In view of our conclusion that the appellant has no case on the merits, we do not think it necessary to express any opinion on the preliminary objection.

In the result, the appeal is dismissed with costs.

Appeal dismissed.

M. R. PATEL

STATE OF BIHAR AND OTHERS

January 5, 1965

P. B. GAJENDRAGADKAR, C.J.

M. HIDAYATULLAH

1. C. SHAH

R. S. BACHAWAT

Bihar and Orissa Excise Act, 1915

Bihar and Orissa Act

s. 8

s. 35

s. 35

s. 8

ss. 38 and 91

s. 38

s. 91

September 9, 1956

Rajeswari Prasad

S. P. Varma

C. K. Daphtary

R. K. Garg

S. C. A.garwala

D. P. Singh

Bachawat

Bihar and Orissa Act

June 27, 1956

Board of Revenue, Bihar

November 14, 1956

Bihar

Singhbhum

June 27, 1958

Chotanagpur Division

April 24, 1959

s. 8

March 5, 1958

.March 31, 1960

Rajeshwari Prasad

s. 35

s. 8

March. 5, 1958

Section 8

Section 35

s. 34

s. 8

s. 35

s. 34

ss. 8

s. 2(7)

s. 8

March 20, 1957

s. 3

s. 35

s. 8

Prasad

s. 40

October 4, 1959

March 31, 1960

Section 45

ss. 38 and 91

s. 91

ss. 38 and 91

October 4, 1961

ss. 38 and 91

s. 8(3)

s. 8

s. 8

Art. 136


LOTUS LINE (P) LTD. v.

THE STATE OF MAHARASHTRA

January 7, 1965

699'

B [P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, s. M. SIKRI, JJ.]

Damages-Measure of-whether party complaining of wrong to property entitled to restitution-<Jr to restoration of property damaged to original condition.

A vessel owned by the appellant, caused damage to a jetty. The respondent state prepared an estimate of Rs. 16,400 as the cost of special C repain for the damage done.

Sometime thereafter, emergent repairr costing Rs. 2783/ - were undertaken by the respondent state to make the jetty workable and later some minor repairs costing about Rs. 1223/- were further carried out.

The appellant having refused to pay for tho damage done, the respondent state filed a suit claiming all the three above mentioned amounts and interest thereon.

The trial court found that the damage done was attributable to tho D negligence of the appellant, but as regards the quantum of damages. it came to !be conclusion that the claim for Rs. 16,400/- was really for reconstruction of the whole damaged area, so that the respondent state was in fact seeking restitution and not compensation for !be damage dne.

The trial court refused to give such restitution and held that the expenditure in respect of emergent and minor repairs had put the jetty in working order and therefore gave a decree of Rs. 3671/ 12/ 6 which was th<>

amount actually spent by the state in making these repairs.

In appeal, the High Court was of the view that the Wednesbury Corporation's Case, [1907] 1 K.B. 78, laid down the general rule in such cases, which was, to require the party in the wrong to make compensation and not restitution; but that this rule was subject to the exception that wher<> the party complaining of a wrong to property was a corporation or a trust<>e charged with the maintenance of a highway or other public work, the wrong-doer was bound to make restitution. The High Court therefore allowed the appeal modified the decree of tho trial court by awardLg a aum of Rs. 19,038/ 8/ - plus interest.

HELD : The Wednesbury Corporation's case did not lay down the proposition in the form •lated by the High Court. The true measur< of compensation was held in that case to be the cost of restoration.

Th<> p<>rsan to whom a wrong was done was entitled to full compensation for restoring the thing damaged to its original condition, but this did not mean complete reconstruction irrespective of the damage done. (702 l:l-D,

B-F, G] The evidence in this case showed that the amount of Rs. 16,400/- was needed to carry out necessary repairs to restore the jetty to i!' original condition and not that the amount was for complete reconstruction of the jetty ipective of the damage done to it.

As this amount would ha e restored the jetty to its original condition, there was no reason to al'ow anything to the respondent state on accunt of emergent repairs or for any other expenditure. (703 B-D, G] CML APPELLATE JURISDICTION: Civil Appeal No. 810 of 1962.

Appeal from the judgment and decree dated October 1, 1959, A of the Bombay High Court in First Appeal No. 697 of 1955.

Purushottam Tricumdas, I. B. Dadachan; i, 0. C. Mathur and Ravinder Narain, for the appellant.

T. V. R. Tatachari, and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Wanchoo, J.

This appeal on a certificate granted by the Bombay High Court arises out of a suit brought by the State of Bombay (respondent) against the appellant for recovery of Rs. 24,979 /2/ 4. The facts which led to the filing of the suit C are not now in dispute as they have been concurrently found by the two courts below and may be briefly narrated. On April 27, 1948, at about midday, the vessel Padam belonging to the appellant arrived in the Dharamtar creek carrying a cargo of 3500 bags of manure )Veighing about 250 tons and laid anchor along- D side Dharamtar jetty lying on the Pen side of the creek on the Pen-Khopoli road.

The Dharamtar jetty is meant for small vessels bringillg passengers and luggage crossing the creek and so the peon on duty there requested the master of the ship to remove the vessel into the creek and to unload the cargo with the help of small boats.

The master of the ship agreed to do so. But E when he tried to move the vessel away from the jetty, she actually came on top of it due to the force of the ebb tide and got stuck there. The incident was reported by the peon to his superior officer who directed the peon to inform the master to refloat the vessel at night when there was high tide.

The master did so at about 3 A.M.

The consequence of the essel getting on the jetty F and the attempt to take it off was serious damage to the jetty, which was broken. This damage was found on the next day, i.e., April 28, 1948. An estimate for special repairs of the damage done was prepared soon after and was submitted on May 12, 1948 to the Executive Engineer.

The appellant was asked by telegram un May 5, 1948 to send a representative in order that G an estimate of the cost of special repairs for the damage done might be prepared.

The appellant replied by telegran1 that a representative would be sent but no one appeared on behalf of the appellant when the estimate was prepared.

This estimate was for Rs. 16,400/-. It appears that sometime tliereafter emergent repairs costing Rs. 2,783/- were undertaken to make the H jetty workable.

Later, some minor repairs costing about Rs. 1,223/- were further carried out.

In the meantime the

LOTUS LINE v. STATE (Wanchoo, /.) 701

A appellant was asked again and again to pay for the damage done.

The appellant refused to do so and therefore the State of Bombay filed the suit claiming the three sums mentioned above for special repairs, emergent repairs and minor repairs and also 6 per centum per annum interest thereon.

B The trial court found that the above facts had been established by the evidence led before it and that the appellant was liable to make go<id the loss as it arose on account of the negligence of the master of the ship.

It then came to consider the quantum of damages.

It came to the conclusion that the claim for Rs. 16,400/- was really for reconstruction of the whole damaged C area and this showed that the respondent-State wanted restitution and not compensation for the damage done. ]t, however, refused to give restitution on the ground that it had not been proved that special repairs to the extent of Rs. 16,400/- were absolutely necessary for the damaged portion of the jetty. The trial court also inspected the jetty and was of the opinion that the emergent D and minor repairs that had been made had put the jetty in order and traffic was going on as usual. Further it took into account the statement of a witness that a bridge was being constructed over the Dharamtar creek and was likely to be completed within two years. It, therefore, finally gave a decree for Rs. 3,671/12/6 which had been actually spent by the State in making the repairs.

J: The rest of the claim was dismissed.

This led to an .appeal by the State before the High Court, and the only question which the High Court had to decide was the quantum of damages.

In that connection the High Court relied on The Mayor of Wednesbury Corporation v. The Lodge Holes r Colliery Co. Limited(') and held that that case laid down that the general rule was to require the party in the wrong to make compensation and not restitution; but there was an exception to this rule and that exception was where the party complaining of a wrong to property was a corporation or a trustee charged with the mainti>- nance of a highway or other public work. In such a case the wrong- G doer was bound to make restitution because a corporation or a trustee who was charged with the maintenance of public works was bound to restore the property in its or his possession to its original condition. On this view, the High Court allowed the appeal and modified the decree of the trial court by awarding Rs. 19,038/8/- and interest at 6 per centum from the date of suit till realisation.

H Th& present appeal on a certificate granted by . the High Court challenges the principle laid down by the High Court, and it is

(1) [19,7] I K. B. 78.

L4Sup/6S-11

urged that no such principle has been laid in Wednesbury Corpo- A ration's case(1) and that that case was overruled in Lodge Holes Colliery Co. Ltd. v. Mayor of Wednesbury( 2).

The only question that arises for decision before us therefore is the quantum of damages in a case like this. Apart from the fact that the case relied upon by the High Court has been partly overruled in the Lodge Holes Colliery Co. Limited's case(2 ), we have been unable to find therein the principle which the High Court has deduced from the case of Wednesbury Corporation(1 ). Learned counsel for the respondent, State is also unable to point out any passage in the judgment of Cozens-Hardy L.J. which lays down C the proposition in the form in which the High Court has stated it. As we read that case it lays down that the rights of a corporation in such a case are at least as high as that of a private owner, with this addition that a. trustee or corporation cannot renounce those rights in the same way as a private owner could. The true measure . of compensation was held in that case to be the cost D of restoration and compensation must give full restoration. l'n

that case the dispute really was whether the road which had subsided should be raised to the same level as it was before or whether the purpose would be served even though it was not raised to the same level and a dip was allowed therein. The Appeal Court held that the Corporation was entitled to full compensation for restoring E the road to its original condition. It may be mentioned that this view was not accepted in full by the House of Lords. It seems to us however that the _yiew taken in Wednesbury Corporation'& case(1 ) that a person to whom a wrong is done is entitled to full compensation for restoring the thing damaged to its original condition may be accepted as the true measure of damages in a case of r

this kind. This applies equally to a private person as to a corpo- . ration or trustee. Therefore, the respondent-State was entitled to compensation to the extent necessary to restore the jetty to its ·<>riginal condition. If this is to be called restitution, the corporation as well as a private person would be entitled to it. But if by restitution, the High Court meant complete reconstruction irres- G pective of the damage done, then neither a private person nor a corporation or a trustee is entitled to complete reconstruction irrespective of the damage done.

This being the principle, the respondent-State would be entitled to such cost as would restore the jetty to its original condition. It H is in that connection that an estimate was submitted for special

(!) (1907) I K. B. 78.

2. (1908] A. C. 323.

LOTUS LINB V. STATE (Wanchoo, /.) 703

A repairs to the jetty as early as May 12, 1948.

The appellant was invited to send a representative to assess the cost of repairing the damage done but it neglected to do so.

There is nothing dn the record to show hat the special repairs to the tune of Rs. 16,400 fwere for complete reconstruction of the jetty irrespective of the damage done to it.

Nothing has been brought out in the evidence B of Patel who prepared the estimate and of the Sub Divisional

Officer who supervjsed it to show that the estimate of Rs. 16,400/- was for complete reconstruction of the jetty irrespective of the damage done.

The covering letter to the estimate shows that it was an estimate for special repairs to the jetty. If the appellant neglected to send a representative to be present to assess the C damage and the cost of repairing it, it cannot now come forward and say that the amount of Rs. 16,400 /- would not be the proper sllll) required for restoring the jetty to its original condition. All that has been brought out in the evidence of the two witnesses referred to above is that it could not be said whether any part of D the dismantled material was fit for re-use; nor were the witnesses able to say what the dismantled material would have fetched if sold.

Barring these two matters all that the evidence shows is that the amount of Rs. 16,400/- was needed to carry out the special . repairs, which would have presumably restored the jetty to its original condition.

Therefore the respondent-State would E be entitled to this. sum of Rs. 16,400/-. But in view of the fact that some of the material might have been fit for re-use and some of the material might have been resold and thus fetched some price, we would deduct the item of Rs. 1,600/ (from the total of Rs. 16,400/-) which refers to "dismantling tlie damaged portion and removing the debris outside including sorting materials and F stacking the useful one to a suitable site etc." The rest of the estimate amounting to Rs. 14,800/- is clearly for restoration of the jetty to its original condition and the respondent-State would be entitled to that amount.

We may add however that there is no reason to allow anything G to the respondent-State in the shape of emergent repairs. It has been shown that Rs. 14,800/- would have restored the jetty to its originlil condition and that is all that the State is entitled to have.

How it decided to spend that sum, whether at one time or at different times in the shape of emergent repairs or minor repairs, has no bearing on the quantum of compensation necessary for H restoring the jetty to its original condition. For the same reason the fact that the State might not have "spent the whole amount by the time the trial court came to give its judgment or the fact that

SUPRBMB COURT REPORTS

[1965] 2 S.C.R.

a bridge was going up and the jetty might not thereafter be required A. has no relevance on the question of damage done on April 27, 1948, though the former may affect the date from which interest may be awarded. We are therefore of opinion that the respondent-State is entitled to Rs. 14,800/- as compensation for the damage done to the jetty to put it back in its original condition. 1l We therefore partly allow the appeal and reduce the amount decreed to Rs. 14,800/-. This sum will carry interest at the rate of Rs. 6/- per centum from the date of decree of the trial court till realisation as ordered by the High Court. The appellant will pay proportionate costs throughout to. the respondent-State.

Appeal partly allowed.

LOTUS LINE (P) LTD

THE STATE OF MAHARASHTRA

January 7, 1965

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

s. M. SIKRI, JJ.

Wednesbury Corporation

Purushottam Tricumdas

I. B. Dadachan

C. Mathur

Ravinder Narain

T. V. R. Tatachari

R. N. Sachthey

Wanchoo

Bombay High Court

State of Bombay

April 27, 1948

Padam

April 28, 1948

May 12, 1948

Lodge Holes Colliery Co. Limited

Wednesbury Corporation(1 )

Cozens-Hardy

Patel

SUPRBMB COURT


BRU KISHORE GUPTA v.

VISHWAMITRA KAPUR

January 8, 1965

[P. B. GA.TENDRAGADKAR, C.J., K. N. WANCHOO AND

J. C. SHAH, JJ.] Delhi & Ajmer Rent Control Act, 1952-Constructlon of unauthorised structures-Suit for ejectment-Removal of structures-pending proceedings-Whether court could grant relief-Repeal of the 1952 Act by Delhi Rent Control Act, 1958-Sectlons 57(2) & 14(1) of new Act-- Scope of.

In each of the two appeals before the court, suits had been filed by landlords under the Delhi and Ajmer Rent Control Act, 1952, for ejectment on the ground that the tenants had erected certain structures with

out the authority of the landlords and in violation of the conditions of lease between the landlord and the concerned authorities.

However, in both these cases the tenants had removed the offending structures during the pendency of the suits and the question for decision in both the cases was whether the tenant could still be ejected after be had removed the authorised structures and there was no further danger to the landlords' leases being forfeited.

It was contended on behalf of the landlords that once a breach bad Ileen committed by a tenant within the meaning of cl. (k) of the pro\iso to s. 13(1) of the 1952 Act, he was liable to be ejected even though the landlord may never have given him notice about the breach and may not even have required him to remove it; and that his liability to ejectment would continue even if he had removed the offending structure before JC the filing of the suit or while it was pending. Furthermore, by virtue of the provisions of s. 57(2) of the Delhi Rent Control Act, 1958, (which repealed the 1952 Act), these two appeals fell to be governed by cl. (k) of the proviso to s. 13 (1) of the 1952 Act and not by cl. (k) of proviso to s 14(1) of 1958 Act or bys. 14(11) of that Act which made 1t possible fur the Controller not to make an order of eviction if the tenant complied with any requirements specified by the Controller; this was so becawe the first proviso to s. 57(2) of the 1958 Act which required that in certain r circumstances regard shall be bad to the 1958 Act, was not applicable to these 1wo cases, ·

HELD : ( i) While considering the scope of the 6rst proV!So to s. 57(2), it was held in Karam Singh v. Sri Pratap Chand, A.I.R. 1964 S.C. 1305 that where, in the 1958 Act, there was a radical departure from the 1952 Act, the latter Act would continue to apply to pending proceedings; but where the 1958 Act bad slightly modified or clarified G the previous provisions, then these modifications or clarifications would apply. Section 14(11) of the 1958 Act did not provide a radical departure from the provisions of the 1952 Act. because when the latter Act was in force, it would have been possible for the court in a suit based on

cl. (k) of the proviso to s. 13(1) to give relief against forfeiture in a proper case on the analogy of s. 114A of the Transfer of Property Act where the tenant bas removed the offending structure before the suit was filed; or even where he bad done so during the pendencv of the suit if reasonable H time was not allowed in the notice contemplated by cl. (k) of the pro\iso to s. 13(1). Whens. 14(11) of the 1958 Act gave power to the Controller to give relief to the tenant under the conditions mel)tioned therein, it was in fact clarifying and slightly modifying what the court could

SUPRBMB COURT

REPORTS

[1965] 2 S.C.R.

already do under the 1952 Act. Therefore, regard could be had to the 1t. provisions of s. 14( 11) of the 1958 Act and relief granted to the tenants in both appeals.

(710 E-F; 711 F-H; 712 C-E]

(ii) Under the 1952 Act, the language of the proviso to s. 13(1) was imperative and laid down that nothing in the Act applied when various clquses of the proviso were satisfied.

Although the language of the proviso to s. 14(1) of the 1958 Act is not so imperative, there is no difference in substance.

Where the requirements of the proviso under B the 1958 Act are satisfied, the Controller has to pass a decree for ejectment unless there is provision otherwise in s. 14. (709 G-H; 910 A-Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 879 of 1962 etc.

Appeals by special leave from the judgment and .decrees dated C January 18, 1961, and December 13, 1960 of the Punjab High Court Circuit Bench at Delhi, in Civil Revision No. 13-D of 1958 and Civil Revision Case No. 592-D of 1957.

M.S.K. Sastri and M. S. Narasimhan, for the appellant (in C.A. No. 121/63) M. C. Setalvad, S. Murty and B. P. Maheshwari, for the D appellants (in C.A. No. 879 of 1962) and respondents (in C.A.

No. 121 of 1962) Raghbir Singh and M. I. Khowaja, for respondent (in C.A.

No. 879 of 1962).

The Judgment of the Court was delivered by E

Wanchoo, J.

These two appeals by special leave from two judgments of the Punjab High Court raise a common question with respect to the application of the first proviso to s. 57 (2) of the Delhi Rent Control Act, No; 59 of 1958, (hereinafter referred to as the present Act).

They arise from decisions of two learned ll Single Judges in revision applications under the Delhi and Ajmer Rent Control Act, No. 38 of 1952 (hereinafter referred to as the 1952 Act.) In one of them (C.A. 879) the learned Judge has held that in view of the first proviso to s. 57 (2), a decree for ejectment against the tenant could not be passed. In the other appeal (No. 121), the other learned Judge has held that the tenant is liable to G ejectment in spite of the first proviso to s. 57 (2) of the present Act.

It will thus be seen that the two decisions are contradictory and raise the question as to when the first proviso to s. 57 (2) precisely applies to facts similar to the facts in the present two appeals which are more or less the same.

Before we consider the question thus raised before us, we may briefly indicate the facts in the two appeals. In appeal No.

A 879 of 1962, the landlord sued for ejectment on the ground that the tenant had erected certain structures in the shape of closing an open verandah and erecting a partition therefu. On account of this, notices were sent to the landlord as well as to the tenant by the authorities concerned to remove the unauthorised structures. As however the tenant did not do so, suit for ejectment was filed by B the landlord under cl. (k) to the proviso to s. 13 (1) of the 1952 Act, which ran as follows :-

"13 (1). Notwithstanding ythfug to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):

Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied-

(k) that the tenant has, whether before or after the commencement of this Act, "caused or permitted to be caused substantial damage to the premises, or notwithstanding previous notice has used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delbi Improvement Trust while giving him a lease of the land on which the premises are situated;"

The lease in favour of the landlord by the Government provided that F "the lessee will not without the previous consent in writing of the Chief Commissioner of Delbi or such officer or body as the lessor or the Chief Commissioner of Delhi may authorise in this behalf erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents." The case of the landlord G was that the tenant had made structures without authority which made him liable to ejectment under cl. (k). During the pendency of the suit, however, the tenant had removed the offending structures with the result that there was no longer any breach of the condition of the lease.

H In C.A. 121 of 1963, also the facts were similar and the suit was filed on the basis of cl. (k) of proviso to s. 13 (1) of the 1952 Act. In this case also the tenant had closed the verandah without

the permission of the authorities concerned and notice was given A to the landlord on that count by the authorities and the landlord in his turn asked the tenant to remove the unauthorised structure.

When the tenant did not do so, the landlord filed the suit. It appears that during the trial of the suit, the tenant made certain changes in the structure and removed the glazing and instead he closed the verandah with wire-gauze net. It was stated by a wit- B ness from the office of the Land Development Officer that the fixing of wire-gauze net was not against the clause as to unauthorised construction which was the same in the case of this lease as in the case of the lease in the other appeal. It may be added that no further action has been taken by the Land Development Officer C after removal of the glazing and after fixing of the wire-gauze net.

In the circumstances the question that arose for decision in both the cases was whether the tenant could still be ejected after he had removed the unauthorised structure and there was no further danger to the landlord's lease being forfeited, and in that con- D nection the application of the first proviso to s. 57 (2) of the present Act arose. As we have already indicated, one of the learned Judges held that the tenant could be ejected while the other held that he could not.

In order to decide the point that has been raised before us it is necessary to set out the corresponding section in the present Act

JI: which is s. 14. The relevant part of this section is in these terms :-

"14. (1). Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the land- :r lord against a tenant :

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely :- G

(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government_or the Delhi Development Authority or the H Muriicipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;"

"14 (11) No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct."

Section 57(1) repeals the 1952 Act.

Section 57(2) which is material for our purpose reads thus :-

"57 (2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provisions of the said Act, as if the said Act had continued in force and this Act had not been passed;

"Provided that in any such suit or proceeding for the fixation-ef standard rent or for the eviction of a tenant from any premises to which section 54 does not apply, the court or other authority shall have regard to the provisions of this Act.

It will be seen from a comparison of the 1952 Act and the present Act with respect to ejectment on the ground contained in cl. (k) of the first proviso that there are some differences in the language JI of the proviso to s. 13(1) of the 1952 Act and of the proviso to s. 14(1) of the present Act.

In the first place the proviso to s. 13(1) of the 1952 Act lays down that nothing in sub-section (1) shall apply to any suit or other proceeding for such recovery of possession while the proviso to s. 14 (1) lays down that the Controller may on an application made to him make an order for G the recovery of possession of the premises on one or more of the grounds specified. The first difference is that the forum is changed from the civil court to the Controller; but that is a question of jurisdiction which we need not consider here. The second dillerence is that while under the 1952 Act the language of the proviS(I was imperative and laid down that nothing in the Act applied H when the various clauses of the proviso were satisfied, the language -Of the proviso to s. 14 (1) of the present Act is not so imperative.

Evett so, we are of opinion that there is no difference in substance,

SUPREME

COURT Rl\PORTS

for where the requirements of the proviso are satisfied under the pre- A. sent Act the Controller has to pass a decree for ejectment unless there is provision otherwise in s. 14 which will be found with reference to various clauses in the proviso as for examples. 14(2), 14 ( 10) and 14 (11 ) . Another difference -for our purjioses between s. 13 of the 1952 Act and s. 14 of .the present Act is the introduction of sub-s. (11) of s. 14 in the present Act while B there was nothing in the 1952 Act corresponding to it. The main argument on behalf of the landlords in the two cases is based on this difference between the two Acts and it is contended that the introduction of sub-s. (11) is a radical departure and therefore the language of the first proviso to s. 57(2) would not apply to the C present situation.

Now the first proviso to s. 57(2) came up for interpretation before this Court in Karam Singh v. Sri Pratap Chand('). In that case the majority held that the proviso must be read harmoniously with the substantive provision contained in sub-s. (2) and the only D way of harmonising the two was to read the expression "shall have regard to the provisions of this Act" as merely meaning that where the new Act has slightly modified c; ir clarified the previous provisions, these modifications and clarifications should be applied. It was further held that these words did not take away what was provided by sub-s. (2) and that ordinarily the old Act would apply E to pending proceedings.

In substance therefore Karamsingh's case(') decided that where in the present Act there is a radical departure from the 1952 Act, the 1952 Act will continue to apply to pending proceedings, but where the present Act had slightly modified or clarified the previous provisions these modifications and clarifications should be applied.

The question that falls for consideration in the present appeals therefore is whether the addition of sub-s. O 1) in s. 14 is a radical departure from what s. 13 (1) provided or whether it is a clarification and/ or modification of the previous provision. Whether sub- G s. ( 11 ) is a clarification and/ or modification of the position as existed when the 1952 Act was in force would depend upon whether when that Act was in force it was open to a court to give relief to a tenant where the offending structure had been removed by him during the pendency of the suit. In this connection s. 114-A of the Transfer of Property Act (No .. 4 of 1882) may be referred H to. Section 114-A runs as follows :-

4 s.c. 1305.

"114-A. Relief against forfeiture in certain other cases.-Where a lease of ii:nmovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may reenter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing-

(a) specifying the particular breach complained of; and ·

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.

"Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of nonpayment of rent."

It will be seen that s. 114-A gives power to court to give relief to the tenant against forfeiture where it holds that the landlord did E not give reasonable time to the tenant to remedy the breach. In such case it can dismiss the suit as not maintainable. It is true that s. 114-A would not in specific terms apply to cases like the present; but ejectment on the ground specified in cl. (k) to the proviso to s. 13 ( 1) of the 1952 Act was somewhat analogous to forfeiture on breach of an express condition of a lease for it also F required previous notice to the tenant before the suit is filed. (see Uma Kumari v. Jaswant Rai Chopra) (1). We do not think that it can be said that the 1952 Act forbade t}le court from granting relief where the offending structures were removed by the tenant even during the pendency of the suit for ejectment. What is reasonable time within which the breach should be remedied is always a G question of fact and we think it would have been possible for the court in a suit based on cl. (k) of the proviso to s. 13 ( 1) to give relief against forfeiture in a proper case where the tenant had removed the offending structure before the suit was filed or even during the pendency of the suit if reasonable time was not allowed in the notice contemplated by cl. (k) of the proviso to s. 13 (I). On H the interpretation pressed before us on behalf of the landlords in the two appeals it is argued that once the breach has been com-

(!) C.A. 246of1961, decided on 16-2-1962.

--:.;-

mitted by the tenant by making an unauthorised structure he is A liable to ejectment even though the landlord may never have given him notice about the breach and may not even have required him to remove it and that his liability to ejectment would continue even if he had removed the offending structure before the filing of the suit. We do not think that such an interpretation can be given to the provisions of an ameliorating statute like the 1952 Act, when B it is clear that even under s. 114-A of the Transfer of Property Act, the court has power to give relief against forfeiture in the circumstances mentioned above. We are therefore of opinion that even under the 1952 Act it would have been open to a court to give relief to the tenant who had remedied the breach either before C the suit was filed or even after the suit had been filed depending upon what the court considered to be reasonable time. Therefore when sub-s. (11) gave power to the Controller to give relief to the tenant under conditions mentioned therein it was in fact clarifying what the court could do under the 1952 Act on the analogy of

&. 114-A of the Transfer of Property Act and also modifying it D slightly. Incidentally we may add that the addition of sub-ss. (10) and (11) may explain the change in the form of the language of the proviso to s. 14 ( 1) of the present Act to which we have already referred. We are therefore of opinion that the introduction of sub-s. (11) in s. 14 was clarificatory and slightly modificatory of the power of the court under the 1952 Act to relieve against for- E feiture where the suit was brought without giving the tenant reasonable time in the notice contemplated in cl. (k) of the proviso to s. 13{1). In this view C.A. 879 of 1962 must fail and is hereby dismissed. C.A. 121 of 1963 succeeds and is hereby allowed and the plaintiff-respondents' suit is dismissed. As in both these cases the tenant has succeeded mainly on account of some change in I law after the suit had been filed, we order parties to bear their own costs throughout in both the appeals.

Appeal No. 879 dismiised and Appeal No. 121 allowed.

BRU KISHORE GUPTA

VISHWAMITRA KAPUR

January 8, 1965

K. N. WANCHOO

C. SHAH, JJ.

Ajmer Rent Control Act, 1952

Act by Delhi Rent Control Act, 1958

Delhi and Ajmer Rent Control Act, 1952

s. 13(1)

s. 57(2)

Delhi Rent Control Act, 1958

s. 13

s 14(1)

s. 57(2)

s. 57(2)

Section 14(11)

s. 13(1)

s. 114A

Transfer of Property Act

s. 13(1)

s. 14( 11)

s. 13(1)

s. 14(1)

s. 14

M.S.K. Sastri

M. S. Narasimhan

M. C. Setalvad

S. Murty

B. P. Maheshwari

Raghbir Singh

M. I. Khowaja

E

Wanchoo

s. 57

Delhi and Ajmer Rent Control Act

s. 57

s. 57

s. 57

s. 13

Delbi Improvement Trust

Delbi

Delhi

s. 13

s. 57

s. 14

Delhi Development Authority

H Muriicipal Corporation of Delhi

Section 57(1)

Section 57(2)

section 54

s. 13(1)

s. 14(1)

s. 13(1)

s. 14

s. 14

s. 14

s. 13

s. 14

s. 14

s. 57(2)

s. 57(2)

Karamsingh

s. 14

s. 13

s. 114

Transfer of Property Act

Section 114

s. 114

s. 114

s. 13

s. 13

s. 13

s. 114

Transfer of Property Act

Transfer of Property Act

s. 14

s. 14

s. 13


PRABHAKAR RAMAKRISHNA JODH v.

A. L. PANDE AND ANOTHER

/anuary 12, 1965

B ( K. SUBBA RAo, RAGHUBAR DAYAL, R. S. BACHAWAT

AND V. RAMASWAMI, JJ.)

University 6/ Saugar Act, 194&-College Code (Ordinance 20)-Affi-- /Jated College--Teacher's pay scales and security of tenure--Whether within •taJutory power, or contractual relationship.

The appellant was a teacher in a college, affiliated to the University C of Saugar and managed by the Governing Body established under cl. 3 of the 'College Code' which is an ordinance made under the provisions of the University of Saugar Act. The Principal of the College served the appeUant a charge sheet and asked him to submit bis explanation. The appellants denied all the charges and requested the particulars on which one of the charges was based. The appellant alleged that this was not 1upplied and the Governing Body terminated bis services without holding any enquiry. Thereafter the appeUant moved the High Court for a writ D quashing the order of the Governing Body and for bis reinstatement; bis case was that the Governing Body bad made the order of discharge in violation of the provisions of the 'College Code'.

The High Court rejected the contention of the appeUant on the ground that the conditions of service of the appellant were governed not by the 'College Code' but by the contract made between the Governing Body and the appellant.

The High Court also took the view that provisions of 'College Code' were E merely conditions prescribed for affiliation of Colleges and no legal rights were created by the 'College Code' in favour of the teachers of the a.ffiliated colleges as agail)st the Governing Body.

In appeal by special leave.

HELD : That the view taken by the High Court was erroneous.

The provisions of Ordinance 20, otherwise called the ''College Code" have the force of law. It confers legal rights on the teachers of the affi- F liated coUeges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship between the affiliated Colleges and University alone. Th provisions of the "College Code" relating to the pay scale of teachers and their security of tenure properly faU within the statutory power of affiliation granted to the University under the Act.

[718 B-E] Vedraj Bhawanidas Dua v. Damoh Arts College, 1961 G M.P.L.J. 239, overruled.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 137 of 1964.

Appeal by special leave from the judgment and order, dated February 28, 1963, of the Madhya Pradesh High Court in Misc.

H Petition No. 236 of 1960.

The appellant appeared in person.

S. N. Bhandari and Anand Prakash, for the respondent.

The Judgment of the Court was delivered by Ramaswami J.

This appeal is brought, by special leave, against the judgment of the High Court of Judicature of Madhya Pradesh dated February 28, 1962 dismissing the petitii>n of the appellant for grant of a writ under Art. 226 of the Constitution of India.

The appellant was appointed as a lecturer in Sanskrit in the year 1955 in the S.B.R. College (Sheobhagwan Rameswarlal Arts College) , Bilaspur and he was confirmed in that post in the year

1957. The College is affiliated to the University of Sau gar under

the provisions of the University of Saugar Act 1946 (hereinafter called the Act) and is managed by the Governing Body established C under Clause 3 of the 'College Code' which is an Ordinance made under the provisions of the Act. The College is maintained out of the funds of Sheobhagwan Rameswarlal Charitable Trust, Biiaspur and is aided by the State Government. On June 2, 1960 the Principal of the College served the appellant, by post, a charge D sheet consisting of three charges and the appellant was asked to

ubmit explanation within a week's time.

The charges were as follows:-

"(1) That you have deliberately based your representation dated 28-12-1959 on false fact~ and misstatements and have committed acts of insubordination amounting to misconduct by making counter-charges against the Governing Body. ( 2) That you have not been taking active interest in the extra-curricular activities of the College and have failed to cooperate with the authorities as required by the conditions of service.

(3) That you have deliberately avoided to execute your service , bond which every teacher of the institution is required to do. This non-fulfilment of the conditions of your appointment order No. FC/56-57 dated 1-7-1956 amounts to breach of the service rules of the college."

The appellant submitted explanation d.enying all the charges and requested the Governing Body to supply particulars on which the first charge was based. The allegation of the appellant is that he was not supplied with the required particulars and that the Governing Body terminated the services of the appellant with effect from H July 1, 1960 without holding any enquiry~ The anneliant made a representation to the Governing Body on July 5, 1960 requesting

A it to reconsider the whole matter. The Governing Body rejected this representation also.

The appellant thereafter moved the High Court of Judicature of Madhya Pradesh for grant of a writ of certiorari under Art. 226 of the Constitution of India to quash the order of the Governing Body dated June 30, 1960 terminating the services of the appellant, and also for the grant B of a writ of mandamus reinstating the appellant to his post as a confirmed lecturer of the College. The case of the appellant was that the Governing Body had made the order of discharge in violation of the provisions of Clause S(vi)(a) of the 'College Code' and that the order of the Governing Body was, therefore, ultra C vires and illegal. The High Court rejected the contention of the appellant on the ground that the conditions of service of the appellant were governed not by the "College Code" but by the contract made between the Governing Body and the appelh, nt.

The High Court also took the view that provisions of the "College Code" were merely conditions prescribed for affiliation of colleges D and no legal rights were created by the "College Code" in favour of lecturers of the affiliated colleges as against the Governing Body.

In taking this view the High Court followed its previous decision in Vedraj Bhawanidas Dua v. Damoh Arts College(') in which it was held that the "College Code" being merely conditions prescribed for affiliating Colleges, the University may at its option E enforce or relax those conditions and the only sanction for fulfil. ment of those conditions is disaffiliation.

The High Court accordingly did not go into the question whether the Governing Body had violated the procedure prescribed in Clause S(vi)(a) but dismissed the application of the appellant for the grant of writ on the ground that it was only breach of contract and the F proper recourse of the petitioner was to bring a suit in the Civil Court for damages for wrongful breach of contract and the appellant cannot avail himself of the extraordinary remedy l!Ilder Art. 226 of the Constitution.

The main question presented for determination in this case is G whether the High Court was right in taking the view that the

"College Code" merely prescribed conditions for affiliation of colleges and no legal rights were created by the "College Code" with regard to teachers of affili!lted colleges.

Section 2 (a) of the Act defines a "College" to mean "an institu- H tion maintained by or admitted to the privileges of the University, by or under the provisions of this Act." Section 6 of the Act

(i}~ 1991 M.P~ L.J. 239. -

refers to the powers of the University and s. 6(6) provides that A the University shall have the power "to admit colleges to the privileges of the University and to recognise hostels under conditions which may be prescribed in the Statutes or Ordinances." Section 32 deals with Ordinances and is to the following effect :

"32. Subject to the provisions of this Act and the Statutes and in addition to all matters which, by this Act or the Statutes. are to be provided for by the Ordinances, the Ordinances may provide for all or any of the following matters, namely :-

(a) the admission of students to the University;

(b) the courses of study to be laid down for all degrees and diplomas of the University; ( c) the conditions under which students shall be admitted to the degree or diploma courses and to the examinations of the University and shall be eligible for degrees and diplomas; ( d) the levying of fees for residence in hostels maintained by the University; ( e) the fees to be charged for the enrolment of students, for attending courses of teaching in the University, for admission to the examinations, degrees and diplomas of the University and for the registration of graduates; ( f) the conditions subject to which persons may be recognised as qualified to give instruction in the University and colleges;

(g) the conduct of examinations;

(h) the term of office, duties and conditions of service of officers and teachers of the University in so far as these are, by or under this Act, subject to the Executive Council."

Section 24(i) provides that the Executive Council shall admit colleges to the privileges of the University subject to the provisions

of this Act and such conditions as may be prescribed in the Statutes.

The "College Code" is an Ordinance made under the provisions of s. 32 of the Act read withs. 6(6) of the Act and Clause 8 of the Ordinance deals with conditions of service of H teachers of affiliated colleges. Clause 8 (vi) of the "College Code" reads as follows :

A "8. (vi) The Governing Body of the College shall not tenninate the service or reduce the pay of any teacher confirmed in the service of the college :-

(a) Without holding a full enquiry into the matter, the teacher concerned shall be given in writing a B statement of charges against him and afforded every possible opportunity of defending himself.

His previous rvice and character shall also be taken into consideration;

(b) No decision for such termination of service, or reduction of pay shall have any effect unless passed by a majority of two-thirds of the members of the Governing Body;

( c) At the request of the teacher concerned any difference or dispute either arising out of the contract, or, otherwise, shall be referred to a Tribunal of Arbitration consisting of the Vice-Chancellor, and two other persons appointed by the Executive Council of the University, one of whom shall possess a status not lower than that of a District Judge.

The decision of this Tribunal shall be final and binding on both the parties."

Clause 7 of the "College Code" states that all teachers of the colleges shall be appointed on a written contract in the form prescribed in Schedule A except in the case of teachers appointed temporarily for a period of one year or less.

Para 9 of this agreement mentioned in Sch. A provides as follows :-

"9. After confirmation, the services of the party of the first part can be terminated only on the following grounds:- a. Wilful and persistant neglect of duty, b. Misconduct,

c. Breach of any of the terms of contract, d. Physical or mental unfitness, e. Incompetence, f. Abolition of the pests :

Provided firstly, that the plea of incompetence sitall not be used against the party of the first part after he has served the party of the second part for five years or more: USup./65-12

SUP.REMB

COURT .REPOllTS

[1965] 2 S.C.R.

Provided, secondly, the services of the party of the A fiIBt part shall not be terminated under clause ( c) or

(f) without the previous approval of Saugar University." It is not disputed on behalf of the respondents that the "College Code" has been made by the UniveIBity in exercise of B statutory power conferred by s. 32 and under s. 6 ( 6) of the Act.

It is also conceded on behalf of the respondents that the "College Code" is intra vlres of the pow= of the University contained in s. 32 read with s. 6 ( 6) of the Act. In our opinion, tho provisions of Ordinance 20, otherwise called the "College Code" have the force of law. It conf= legal rights on the teachers of the C affiliated colleges and it is not a correct proposition to say that the "College Code" merely regulates the legal relationship bCtween the affiliated colleges and the University alone. We do not agree with the High Court that the provisions of the "College Code" constitute power of management. On the contrary we are of the view that the provisions of the "College Code" relating to the D pay scale of teachers and their security of tenure properly fall within the statutory power of affiliation granted to the University under the Act. It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch. A but that does E not mean that teach= have merely a contractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are ?art and parcel of the teachers' service conditions and, as we have already pointed out. the provisions of the "College Code" in this regard are validly F made by the Univ=ity in exercise of the statutory power and have, therefore, the force and effect of law. It follows, therefore. that the "College Code" create., leg; al rights in favour of teachers of affiliated colleges and the view taken by the High C, ourt is erroneous.

It was urged on behalf of the appellant in the next place that G there was violation of the procedure prescribed in Clause 8(vi) (a) of the "College Code" and the order of the Govemine; Body dated June 30, 1960 terminating the auoellant's services was illegal and ultra vires and must be quashed by p, rant of writ in the nature of certiorari.

Counsel for the resoondents contended that there was no violation of the procedure ore.o; cribed under Clam:e 8(vi)

(a) of the "ColleP.:e Code" and that the order of the Govemin!!.

Body, dated June. 30, 1960 was not defective in law. Since the

A question has not been investigated by the High Court we consider that it is necessary that this case should go back on remand to the High Court for deciding the question whether there was a violation of the procedure prescribed under Clause S(vi)(a) of the "College Code" and whether the order of the Governing Body, dated June 30, 1960 is consequently illegal and ultra vires and B whether the appellant is entitled to the grant of a writ under Art. 226 of the Constitution.

We should like to add that Counsel for the respondent raised two preliminary objections in the course of argument. The argument was stressed in the first place that the appellant had an c alternative remedy under Clause 8 (vi)( c) of the "College Code"

which provides that the aggrieved teacher may request for a reference of the dispute to a Tribunal of Arbitration consisting of the Vice-Chancellor and two other persons appointed by the Executive Council of the University. It was contended on bdtalf of the respondents in the second place that the Governing Body D of the College was not a statutory body performing public duties

and no writ in the nature of mandamus may, thereforo, be issued to the Governing Body of the College. On behalf of the respondents it was conceded that these objections were not pressed before the High Court.

We are, therefore, unable to entertain these preliminary arguments at this stage and they must be over-ruled.

E For the reasons already expressed, we allow this appeal, set aside the judgment of the High Court, dated February 28, 1962 and order that the case should be remanded to the High Conrt for investigating the question whether there was a violation of the procedure contained in Clause 8 (vi) (a) of the "College Code" F and for final determination of the case in accordance with Jaw.

Parties will bear their own costs in this Court as well as in the High Court up to this stage.

Appeal allowed.

PRABHAKAR RAMAKRISHNA JODH

A. L. PANDE AND ANOTHER

B ( K. SUBBA RAo

RAGHUBAR DAYAL

R. S. BACHAWAT

V. RAMASWAMI, JJ.

cl. 3

CIVIL APPELLATE JURISDICTION

Madhya Pradesh High Court

S. N. Bhandari

Anand Prakash

Ramaswami

Art. 226

Constitution of India

Clause 3

June 2, 1960

July 5, 1960

Art. 226

Constitution of India

Art. 226

Section 2

Section 6

s. 6(6)

Section 32

Section 24(i)

s. 32

Clause 8

Clause 8

Clause 7

Saugar University

s. 32

s. 6

s. 32

s. 6

Clause 7

Clause 8

Clause 8(vi)

June 30, 1960

Art. 226

Clause 8

February 28, 1962

Clause 8