M~I

.DIXIT & ANOTHER

BHRIGUNATH & OTHERS

January 12, 1968

B (J. C. SHAH, V. IUMASWAMI AND V. BHARGAVA, JJ.j

U.P. Zamlndari Abolition and Land Reforms A.ct (lf.P. I of 1951 ), u. 152, 171, 112r-Jnheritance by Hindu widow-Become> bhumidhdr- Whether life estate.

On the death of her husband, certain cultivatory lands devolved on a indu widow. . She became a bhumidhar on the enactment of the U.P.

Zamindari Abolition and Land Reforms Act of 1951. Thereafter ahe gifted the lands to respondents I _and 2. On her death, the appellants, whp were reversioners to her husband's estate filed a suit claiming that the widow had only a life-estate in the bhumidhari lands, and therefore. the gift which was to enure beyond her life time was incompetent. The end

was dismissed. Dismissing the appeal, this Court, _

HELD : There is nothing in the Act which indicates that when ,. female who inherits the rights of a bhumidhar, under s. 171 or s. 172 0< a. 172A, any residuary interest remains vested in any other person. Under the Act she is the owner of the property : the entire estate is vested in hes:.

Absence of testamentary power in a female bhumidhar qua her holding is reconcilble with devolution upon the heirs of the female bhumidhar •. and an absolute title during her life time. That is clearly illnstrated by 1he nature of the interest which the heirs of the classes referred to in s. 172(~

(a) (ii) hold. [774 H, 776 BJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 458 of 1965.

Appeal by special leave from the judgment and order dated December 10, 1963 of the Allahabad High Court in Second Appeal No. 1315 of 1958.

F J. P. Goyal and Sobhag Mal Jain, for the appellants,

M. K. Ramamurthi, Shyamala Pappu and Vineet Kum4T, fpr respondents Nos. 1 and 2.

The Judgment of the Court was delivered by

Shah, J, One Raj Kishore was possessed of sir and khudka..Wrl lands, which on his death in 1923 devolved upon his widow Sanwari. With the coming into force on July 1, 1952, of the U.P, Zamindari Abolition and Land Reforms Act 1 of 1951, Sanwari acquired the status of a bhumidhar in respect of those sir. and khudkasht lands. On December 18, 1952, Sanwari made a gift of the bhumidhari lands in favour of respondents 1 & 2. Sanwari died in 1954. Claiming to be the nearest reversioners to the estare of Raj Kishore, the appellants commenced an action in the Court of Munsif, Deoria, for a declaration of their title to the lands gifted by Sanwari, and for a decree for possession of those lands on the

768 SUPREME COURT RLl'ORTS

[1968] 2 S.C.R.

pica, inter alia, that holding only a Hindu widow's estate in the bhumidhari lands Sanwari was incompetent to create an interest by gift which was to enure beyond hr lifetime.

The suit was dismissed by the Trial Court, and the decree was confinr.ed in appeal by the Additional Civil Judge, Deoria.

In second appeal before the High Court of Allahabad Desai, C.J., and S. N. Dwivedi, J., agreed with lhe judgments of the courlS below. Jagadish Sahai, J., was of the opinion that Sanwari held in the bhumidhari lands ill dispute only a life estate.

Against the decree of the High Court sonfirming the decree of the District Court, the plaintiffs have appealed to this Court.

The U.P. Zamindari Abolition and Land Reforms Act l of 1951 was primarily intended to abolish the rights of intermediaries and to define the inletest of various classes of holders in possession •f agricultural lands who since the extinction of the rights <>f interlllediaries had direct relation with the State.

By s. 4 on the com- 111encement of !he Act all estates situate ill Uttar Pradesh stood transferred to and vested in the Slate free from all encumbrances.

Etinction of the interest of rhe intermediaries did not however affect the interest of the tenants in the land who derivi:d their rlght of occupation from the intermediaries. By s. 129, for the purpose of the Act, there were to be three classes of tenure-holders-(!) bhumidhars; (2) sirdars and (3) asamis. Bys. !30 every person belonging to one cf the classes specified in els. (a) & (b) was tc be a hh11midhar and was to have all the rights and to be subject to all the liabilities, conferred or imposed upon bh11midhflrs by or under the Act. The persons so entitled to bhumidhari rights were-(}) all persons who as a consequence of the acquisition n~ .:stales became bhumidhars under s.18; and ( 2) all persons who acquired the rights of bhumidhars under or in accordance with the provisions of the Act. Section I 8 provided, subject to exceptions not material for the purpose of this appeal, !.hat all lands of the descriptions in els. (a) to (e) shall on the dote immediately preceding the date of

vsting be deemed to be settled by lhe State with tlie intermediary. lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of the Act, be entitled to rnkc or retain possession as a bhumidhar thereof.

Persons belonging to

th~ classes mentioned ins. 3 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act. 1949, who had obtained the declaration referred to in s. 6 of that A':t in respect of any holding or share thereof were also to be deemed bh11midhars of the holding or the share therein in respect of which the declaration had been made and continued in force.

Section 134 provided for acquisition of bhumidhari rights by a sirdar, by paying to the credit of the State Government an amount equal to ten times the land revenue payable or deemed to be payable on the date of application for the land of which he is the sirdar. The Act provided by

RAMJI DIX!T V. BHRIGUNATH (Shah, /.) 769

' 189 that the interest of a bhumidhar in his holding or any part thereof shall be extinguishtd-(a) when he dies intestate leaving no heir entitled to inherit in accordance with the , provisions of the Act; (aa) when the holding or part thereof has beeJ!, transferred or let out in contravention of the provisions of the Act; (b) when the land comprised in the holding has. been ac~ .quired under any law for the time being in force relating to the acquisition of land, or (c) when he has been deprived of possession and his right to recover possession is barred by limitation.

By s. 152 it was provided that :

"The interest of a bhumidhar shall be transferable subject to the conditions hereinafter contained in. this chapter."

Restrktions on the rights of a bhumidhar to transfer a holding by sale, gift, mortgage, lease and exchange were prescribed hr ss. 154, 155, 156 and 165 and transfers in contravention of the

provisions rendered the bhumidhars liable to eviction from the holding.

Section 169 provided :

" ( l) A bhumi'dhar may by will bequeath his holding or any part thereof except as provided in sub-section (2).

(2) No bhumidhar entitled to any holding or part in the right of a widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased, may bequeath by will such holding or part.

(3)

Section 171 provided, inter alia, that subject to the prov1s1ons of s. 169, when a bhumidhar being a male dies, his interest in his holding shall devolve. upon classes of heirs male and female-in

the order of succession given in els. (a) to (r). The section wa .amended from time to time.

Females who were entitled te inherit to the holding under the section as finally amended hr Act 37 of 1958 were-(a) widow of a predeceased male lineal descendant who has not remarried when there were male descendants; (b) widow and widowed mother and widow of a predeceased male lineal descendant in the male line of descent, who had not re-married; (ee) unmarried daughter; (ff) unmarried sister; (g) married daughter; (m) married sister; (n) half-sister being the daul!hter of the same father as the deceased. Section 172(1} provided, inter alia, that on the death or marriage of a woman who had inherited. the interest in the holding after the, date of vesting under the Act, as an heir to a mafe bhumidhar, as a

SUPREME COURT REPORTS (1968] 2 S.C.ll..

widow, widow of a male lineal descendant, mother, father's mother, daughter, son's daughter or sister or half-sister of the last holder, the holding shall devolve upon the nearest surviving heir determined in accordance with the provisions of s. 171 of the last male bhumidhar, and the same rule of devolution shall he followed when the female abandons or surrenders the holding.

Sub-section (2) of s. 172 dealt with devolution of int., rest on the death of a female bhumidhar belonging to any of the classes listed in sub-s. (I) who had inherited an interest in any holding before the date of vesting, as an intermediary of the land comprised in the holding, or held the holding as a tenant belonging to the classes specified.

If the female holder was entitled to a limited estate in the holding in accordance with the personal law, the interest

wa~ to devolve upon the nearest surviving heirs in accordance with the provisions of s. 1 71 of the last male intermediary or tenant of the land, and if she was under the personal law entitled to the holding absfllutely, it was to devolve in accordance with the table in s. 174. It was further provided that where a female bhumidhar of any of the classes mentioned in sub-s. (2) dies, abandons or surrenders and wher~ the female being a widow, widow of a male lineal descendant in the male line of descent, mother, father's mother, manies and such bhumidhar on the date inuoediately before the date held the holding otherwise than as an intermediary or tenant referred to in cl. (a) of s. 172(2), the holding shall devolve upon the nearest surviYing heir of the last male tenant, ascertained in accordane with the provisions of s. 171.

Section 172A, which was incorporated by Act 30 of 1954, provided that where an inferior female tenureholdPr like a sirdar or an adhivasi has inherited any interest in any holding in any of the relationships mentioned in s. 171 (2) and has acquired the rights of a bhumidhar in such land, the right so acquired shall for purposes of devolution under s. 172 be deemed to be accession to the holding of the last male holder thereof.

Section 17 4 provided, inter alia, that when a female bhumidhar, [other than a bhumidhar mentioned in ss. 171 (sic.) or 172] dies, her interest in the holdinj! shall devolve in accordance with

tJie order of succession given in that section.

By that list, the predeceased son's widow and predeceased son's predeceased sm:i's widow, daughter, mother and sister were the female heirs competent to inherit the holding. Section 175 provided that in the case or a co-widow, or a co-tenure-bolder, who dies leaving no heir entitled to succeed under the provisions of the Act, the interest shall pass by survivorship.

Section 152 expressly provides that the interest of a bhumidhar shall be transferable, subject to the conditions contained in Ch. VIH.

The conditions to which the transfet is subject are to be found in ss. 154, 155, 156, 157, 161, 163, 164 and 165

ff ·•

P.AMJI DIXIT v. BHRIGUNATH (Shah., /.) 771

These conditions do not purport to qualify the interest or the title in the holding of a bhumidhar.: they merely impose restrictions upon the right of a bhumidhar to transfer his interest. By s. 152 no distinction is made between the power to transfer the

interest by act inter vivas by a male bhumidhar and a female. bhumidhar. Prima faciq, therefore. the power of a female bhum1dhar to transfer her interest in a holding by act inter vivas is as extensive as the power which a male bhumidhar may exercise in respect of his interest in a holding.

By s. 169 (1) a bhumidhar is declared competent by will to 'bequeath his holding or any part thereof except as provided in sub-s. (2). But a female

bhumidhar belonging to any of the classes specified in sulH.

(2) is declared incompetent to bequeath by will her holding.

This restriction operates against every female bhumidhar entitled to a holding in the right of a female relation mentioned in sub. s. (2). It is plain on the words of the statute that a female who is entitled to the holding in the right of a widow of a male lineal descendant in the male line, or mother, daughter, father's mother,

oon's daughter, sister or half-sister, whether under s. 171 or under s. 17 4, is declared incompetent to bequeath the holding by

will.

Counsel for the appellant contends that s. 152 makes the interest in a holding of a bhumidhar whether male or female tramferab!e, but it is not intended thereby to declare thai the inter~! of a female bhumidhar is in all cases absolute. Undoubtedly, if the interest of a bhumidhar in a holding is limited, he cannot tramlllit a larger interest than his own. But there is no express provision in the Act which defines the interest of a female bhumidh11r under the Act.

It is common ground that the personal Jaw of inheritance of the holder does not determine the nature of the estate vested in i a female bhumidhar. Counsel for the appellant says, however, that the Act contains, indications that the interest of a female bhumidhar extends only to a life-interest in the holding held by her.

Those indications are, according to counsel for the appellant-(a) to females of the. classes mentioned in s. 169

(2) the right to make a testamentary disposition of bhumidhari holding was expressly denied; (b) on the death of a female bhumidhar who had inherited the holding under s. 171 from a male bhumidhar or on abandonment or surrender by her the holding devolves not upon her heirs but upon the nearest surviving heirs of the last male bhumidhar; ( c) on the death of a female belonging tc any of the classes mentioned in sub-s. (2) of s. 172 who had inherited the land comprised in the holding before the date of vesting and was in accordance with the personal law applicable to her entitled to a life-estate only in the holding, the holding devolves up011 the nearest surviving heirs of the last male intermediary or the tenant and in the case of .a female tenure-holder

SUPREME COURT REPORTS [1968] 2 s.c.R.

not belonging to the classes mentioned in s. 172(2) (a) the holding devolves on death, ab:indonment or surrender upon the heirs mentioned in s. 171 of the last male tenant; (d) the right of the female heir belonging to the classes specified in s. 172( 1) who inherited the holding under s. 171 and of a widow, widow of a male linGal descendant in the nialc line, mother, and father's mother who has inherited beFore the datP. of vesting and docs not fa!l within s. I 72(2)(a) is forfeited upon marriage or remarriage; and (cl by s. I 72A interest acquired by a female heir inheriting an interest in any holding as a sirdar or an adhivmi when converted into a bhumidhari interest under s. 134 or s. 235 is for the purpose of devolution under s: 172 to be deemed an accession to the holding of the last male holder.

These provisions, counsel con1cnds, clearly indicate that the interest of the female bhumidhars mentioned ins. 169(2) is not intended to cnure beyond her lifc.; imc and is liable to be extinguished in certain conditions even during her life-time, and is on that account merely a life-interest.

We are un:1blc to accept this submission as. correct. Counsel for the 11ppcllants asks us to infer that th_c estate of a female bhumidhar !ailing within sub-s. (2) of s. 169 is a life-interest as a matter of necessary implication from the express denial of the right to llcqueath the holding and devolution according to special rules on llcath, abandonment or surrender, and forfeiture on marriage or 1emarriage in certain cases.

But there is, in our judgment, nca discernible relation between the nature of the-estate of a female bolder, and the restriction placed upon the power of testamentary disposition or the special rules of devolution of the holding of -a female bhumidhar on death, abandonment or surrender, or forfeiture resulting from marriage or remarriage.

From the vari- '1tls provisions made in the Act it is impossible to evolve any eonsistent or logical pattern, indicating that the LegL, Jaturc '.nlendcd by imrosing the special rules of devolution of the interest of a female bhumidhar on death, marriage, abandonment or surnder, to make her tenure in the holdmg a mere life-estate.

Restriction on the power of testamentary disposition is not imposed upon only those females who inherit the holding under

1. 171 on the death of a male bhumidhar. It applies alike to thD

tenure of a female bhumidhar who inherits the holding from a female hhumidhar under s. 174, and from a male bhumidhar under s. 171.

A female bhumidhar under s. 174 apparently has an absolute interest in her holding: the persons who inhcri' 'he holding from her accnrdin~ to the order of succession mentioned in s. 174 also take the holding in absolute right.

In the table of heirs in s. 174 arc included a predeceased son's widow, a nrrdeceased son's predeceJsed son's widow, daughter, mother nd sister. and there 0cin2 no indication to the contrary the holding of a female bhumidhar will devolve upon those female heirs in

' B

absolute right.

Those heirs arc included in the list of female heirs in s. 169(2). The result is that while under s. 174 the

female heir would take the holding on inheritance .from a female with full power to transfer by act inter vivos, she would still be subject to a restriction on her power of testamentary disposition.

Again the female heir of any of the classes mentione<i ins. 172(2)

(a) (ii) who is entitled to a holding absoluiely though not liable to be divested on marriage also is incompetent to bequeath her holding, if she has inherited it in the right of any of the fetnalt: relations mentioned in s. 169(2). The rule that on death or marriage of a female bhumidhar who has inherited a holding under s. 1.71 the holding will devolve upon the heirs of the last male bhumidhar also does not imply that her tenure is merely of a holder for life.

Under the general law, a restriction upon the power of testamentary disposition docs not necessarily carry with it a limitation upon the tenure of the holder so as to restrict the power of disposition inter vfros.

It is well-recognized that a II)Uslim by his personal Jaw is incompetent to dispose of property exceeding a third without the consent of the heirs. But it caqnot be sugge<"..;; d

that his power of disposition inter vivos is on that account restricted.

Counsel for the appellants asked us to assume that sub-s. (2) of s. 169 only applies to holdings inherited by female heirs from male bhumidhars under s. 171.

But the Legislature has made no such express provision, and we are unable to hold that such a reservation is implied. The fact that in sub-s. _(2) of s. 169 as it stands enacted after amendment by Act XXi of 1954 all females who inherit the holding from a male bhumidhar under s. 171 are listed as incompetent to bequeath a holding is a very slender foundation for inferring the legislative intent that the restriction upon the power of disposition is sought to be limited to females who inherit the holding under s. 171.

It may be noticed that under s. 171 as originally enacted, the widow of a male lineal descendant in the male line of descent was an heir to male bhumidlrar, but she was not disqualified from bequeathing the holding tmder s. 169(2) as originally enacted.

Other indications to the contrary may also be gathered from the amendments made by the Legislature in ss. 169(2) and 171 from time to time. Under s. 169(2) as originally enacted, amongst the classes of persons who were prohihitcd from making a testamentary disposition was the' father's father.

By s. 173 of the Act when a bhumidhar inheriting an interest in a holding as a father's frther, whether before or after the date of vesting, died, abandoned, or surrendered such hokli11g. the holding was to devolve upon the nearest surviving heir (ascertained in accordance with s. 171 ) of the last male bliumidhar from whom the father's father had inherited the holding.

By Act XX of 1954, s. 173

77-i

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(1968) 2 S.C.R.

was repealed, and reference to the father's father was delctzd

from the list of heirs incompetent to bequeath by will a bhum~ hari holding. If denial of testamentary power to a holder of bhumidhari land implied that the b0lder had merely a liftate to the Legislature must be imputed an intention to convert what was a life-interest till Act XX of 1954 was passed into an absolute estate. The position of a father's father in the scheme of the Act before and after the amendment of the Act in I 954 would, if the argument of the appellant be accepted, furnish a striking illustration of obscurity in the provisions of the Act.

A review of other provisions enacted in the Act from time to time also doc.; not indicate anv definite scheme, or disclose an intention to confer merely a life-estate only upon female heirs of bhumidhars. By s. 169 as origir; ally enacted by sub-s. (2) the widow, mother, step-mother, father's father, father's mother, unmarried daughter and unmarried sister were not competent to

xercise the power of testamentary disposition of the holding.

We have already referred to the omission of the widow of a male lineal descendant in the male line of descent who was one of the heirs under s. 171 from the list of female heirs who were not prohibited by s. 169(2), as it stood before it was amended by Act XX of 1954, from making testamentary disposition.

By the amendment made by Act XX of 1954 restrictions upon the poW'CI£ of testamentary disposition applied only to female bhumidhars who inherited the holding in the right of the specified relatiom.

For the first time a married daughter or married sister and a half- <ister were given separate places in the list of heirs in s. 171(1) by Act 37 of 158-an unmarried daughter being preferred to a married daughter, and an unmarried sister to a married sister, bnt half-sisters married and unmarried took the holding simultaneously.

After the amendment of the Act by Act 37 of 1958, an unmarried daughter was entitled to inherit the holding of hec father, but ber interest was forfeited on marriage, wherea., a married daughter was entitled to inherit the holding. By the Act therefore the interest in the holding of an unmarried daughter or unmarried sister was forfeited, but a married dau)!hter or married 'ister was an heir to the holding of a male bhumidhar.

The principle contended for by counsel for the appellant is also not discernible in the scheme of s. 172.

When a female bhumidhar mentioned ins. 172(2) (a) (ii) dies or a female bhumidhar mentioned ins. 172(2)(b) who has inherited the holding before the date of vesting as a daughter, son's daughter, sister or half-sister marries, the holding will not devolve upon the heirs H of the last male holder, but upon her heirs under s. 174, but the holding may still not be bequeathed by her by will.

Absence of testamentary power in a female bhumidhar qua her holding is •

reconcilable with devolution upon the heirs of the female bhumidhar, and an absolute title during her life-time.

That is clearly illustrated by the nature of the interest which the heirs of the classes referred to in s. 172(2)(a)(ii) hold.

It is in the circumstances difficult to draw any inference from the various provisions which do not disclose any logical or systematic pattern that it was intended to impose upon a female heir mentioned in the list in s. 169(2) a limitation that she was, notwithstanding the amplitude of the expressions used in s. 152, not competent to dispose of her interest beyond her life-time.

It was urged that the Legislature has by using two different expressions "interest" and "holding" in s. 172 indicated that the expression "interest" may in the case of a female heir indicate a life-interest in the holding.

By s. 152 it is expressly enacted that the interest of a bhumidhar shall be transferable.

It is true that no person .can convey a larger interest than what he posse5ses. But there is nothing in s. 152 from which it may be inferred that the interest of a female bhumidhar is anything less than the interest held by a male bhumidhar. Section 169(1) provides that a bhumidhar may by will bequeath his holding .or any part thereof, except as provided in sub-s. (2), and sub-s. (2) prohibits female bhumidhars of the classes mentione'I therein from making a bequest by will of the holding or any part thereof.

Section 169 seeks to make no distinction between the holding and interest in a holding. Even in s. 171 the right or a male bhumidhar for the purpose of devolution upon his heirs-male as well as female-~ referred to as "interest". In s. 172, however, the Legislature has enacted that a bhumidhar who has after the date of vesting inherited an interest in any holding as a widow, (to use a compendious expression), or as a daughter or a sister, when she marries, dies, abandons or surrenders such holding or part thereof, the holdinR or any part thereof shall devolve upon the nearest surviving heir.

It was argued that the Legislature has designated the estate inherited by a female as a bhumidhar as "interest" and the devolution in the contingencies mentioned as of the "holding".

Similar phraseology is used in sub-s. (2) of s. 172, which speaks of inheritance of an "interest" and devolution of the "holding" upon the heirs.

The same schemes is also adopted in s. 172A.

Where a sirdar or an adhivasi acquires an interest in any holding and then acquire the rights of a bhumidhar it is orovided by s. l 72A that the rights so acquired shall be deemed to be accession to the holding of the last male holder. But in s. 174 it is provided that the "interest" of a female bhumidhar, sirdar or asami, other than a bhumidhar. sirdar or asami mentioned in s. 17l or ' I 72 on her death devolves in accordance with the order of succession mentioned in that section.

The difference in phraseo-

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(1968] 2 S.C.R.

logy, in our judgment, docs not indicate that the expression "inte rest" of a female heir in a holding has a restricted connotation.

The two exprcs, ions have been indi, criminatcly used.

There is nothing in the Act which indicates that when a female who inherits the rights of a bhumidhar, under s. 171 or s. 172 or s. 172A, any residuary interest remains vested in any other person.

Under the Act she is the owner of the property : the entire estate is vested in her.

It is a fundamental rule of our jurisprudence that an estate docs not remain in abeyance. If ii

was intended by the Legislature that the interest inherited hy a female mentioned in s. 171 was to be a life-interest, there wnuld be some indication that the rcversionary or residuary intcres• remains vested in another person designated for that purpose.

But a search in that behalf in the Act is fruitfe, s.

On a careful review of the provisions of the Act, we arc 11n- <1bk to hold that ii was intended by the Legislature to en2c! by

imrlication that the holding inherited by a female heir helongiPg to one of the classes of female heirs in s. 171 is not held as a lifceslate.

One important : .. ·· l.111ve development which throws some light on the qucslio11 •) also he noticed.

The U.P. Zamindari Abolition .and Land Reforms Bill was published in 1949. llefore &he scheme incorporated in the Bill could he implemented considerable spade-work had 10 be done. and the Bill could he brc.ughl before the Legislature after great delay.

In the n'eanwhile it was apprehcded. the intermediaries may de;-nve the tenants of the lands in their occupation.

The Legislature therefore, as an interim measure, enacted the U.P. Agricultural Ten- :1Dls (Acquisition of Privileges). Act 10 of 1949.

By" s. 3 of that Act certain classes of tenants could apply to be declared entitled to acquire the privileges on payment to the State an amount equal to ten times the annual rent payable or deemed to be r, ay- .able in respect of the holding. and on making an application in that behalf to the Assistant Collector.

Those rights were conferred by later amendments upon sub-tenants and unrecorded cntenants.

By s. 7 it was provided that upon the grant of the dcclardlion the applicant shall, with effect from the date of pa~ menl or deposit of the amount payable. be entitled to th~ privileges against cjcctmenl in execution of any decree or order of ejectmenl.

Clause (c) was added in s. 7 by item 5 of Sch. IV of U.P. Acl I of 1951, and that clause provided :

"The applicant shall. except as hereinafter excepted, he entitled, notwithstanding anything contained in the U.P. Temi:1cy Act. l 939, or any contract to bequeath

A by will or transfer by way of sale, simple mortgae or gift his interest in the holding or his share therem .

Sedion 340 of the U.P. Zamindari Abolition and Land Reforms Act l of 1951 provided that '"where any orders .have been made, proceedings taken, declarations granted, or jurisdiction exercised under the prov.isions of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, the provisions of the said Act shall, notwithstanding anything contained therein, be so read and construed as if the amendments mentioned in Schedule IV had been made therein and were in force from the commencement of the said Act." Clearly by the enactment of cl. ( c) in s. 7 of the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949, the tenant who deposited the amount payable by him became competent, notwithstanding anything contained in the U.P. Tenancy Act, 1939, or any contract, to bequeath by will or transfer by way of sale, simple mortgage or gift his interest in the holding or his share therein, and this holding by virtue of s. 18 of the U.P. Zamindari Abolition and Land Reforms Act in respect of an occupancy tenant, a hereditary tenant or a grove. holder and in respect of a tenant belonging to certain other specified classes became the bhumidhari holding of the tenant.

In the absence of any express provision in the U.P. Zamindari Abolition and Land Reforms Act l of 1951, taking away the right to make a disposition, inter vivos, which was expressly conferred bys. 7(c) of the U.P. Agricultural Tenants (Acquisitidn of Privileges) Act, 1949, upon 'the tenant who had acquired the privileges under that Act, when the tenant became entitled to bhumidhari rights, it would be difficult to hold that by implication those rights were not exercisable and must be deemed to have been taken away on the coming into force of the U.P. Act 1of1951.

The appeal therefore fails and is dismissed.

There will be no order a' to costs.

Y.P.

Appeal di.vmissed.

M~I

.DIXIT & ANOTHER

BHRIGUNATH & OTHERS

January 12, 1968

C. SHAH

V. BHARGAVA, JJ

s. 171

s. 172

s. 172(~

(a)

F J. P. Goyal

Sobhag Mal Jain

M. K. Ramamurthi

Shyamala Pappu

Vineet Kum4

Shah

Raj Kishore

Sanwari

Raj Kishore

Court of Munsif, Deoria

Additional Civil Judge, Deoria

High Court of Allahabad Desai,

S. N. Dwivedi

Jagadish Sahai

s. 4

s. 129

s. 6

Section 134

s. 152

ss. 154, 155, 156 and 165

Section 169

Section 171

s. 169

SUPREME COURT REPORTS (1968] 2 S.C.ll

s. 172

s. 1

s. 174

s. 172(2)

s. 171

Section 172A

s. 171

s. 172

Section 17

ss. 171

Section 175

Section 152

s. 152

s. 169

s. 171

s. 17

s. 152

s. 169

s. 171

s. 172

SUPREME COURT REPORTS [1968] 2 s.c.

s. 172(2)

s. 171

s. 172( 1)

s. 171

s. 134

s. 235

s. 169

s. 174

s. 171

s. 174

s. 174

s. 174

s. 169(2)

s. 174

s. 169(2)

s. 1

s. 169

s. 171

s. 169

s. 171

s. 171

s. 171

s. 169(2)

ss. 169(2) and 171

s. 169(2)

s. 173

s. 171

By Act XX of 1954

s. 173

s. 169

s. 171

s. 169(2)

s. 171(1)

After the amendment of the Act by Act

s. 172

s. 174

s. 172(2)(a)(ii)

s. 169(2)

s. 152

s. 172

s. 152

s. 152

Section 169(1)

Section 169

s. 171

s. 172

s. 172

s. 172A

s. 174

s. 17

s. 171

s. 172

s. 172A

s. 171

s. 171

s. 3

s. 7

s. 7

s. 7

Tenancy Act, 1939

s. 18


IDRA SINGH PAL

MADAN LAL

January 15, "1968

[M. ffIDAYATULLAH AND K. S. HEDGE, JJ.]

Repreurrtatwrr of the People Act. 1951, s.•. 36 and JOO-Clerical muuzJ.e in nomination pcpers-Duty of Returning Officer-NomituJtion , aper• must not be lightly re; ected even in the case of dummy candidate

~Election to be set a.Ide if papers of such a candidate wrongly rejected.

The rC5pondent filed two nomination papers for election to the I.egis lative Assembly from a constituency in Himachal Pradesh in the 1967 general election. Both bis nomination papers were rejected at the scrutiny. 1l>e first nomination paper was rejected on the ground that the proposer's name wa< wrongly mentioned as being at serial No. 380 of Pan 13 of the l!lectoral Roll of the constituency whereas it was actually at serial No. 380 of Pan 23 of the Roll. The oce-0nd nomination paper was rejected on the lfound that the respondent was shown ~~ the elector at Serial No. 504 ot Pan 2 of 9-Arki Assembly constituency but really his name was found at serial No. 504 of Pan 12 of that constituency. At the election subsequently held the appellant was the winning candidate. The respondent filed an election petition challenging the appellant's election on the ground that his (the respondent's) nomination papers had been wrongly rejected.

The High Coun allowed the petition whereupon, by special leave, the appellant came to this Coun. It was urd on behalf of the appellant, i11trr alia, that the respondent was only a dummy candidate who was not e'Ven pr"'5cnt at the time of tl\e scrutiny and had filed the petition only hecausc the candidate representing his pany had been defeated.

HELD : The respondent's nomination papers were wroogly rejected in a manner impermissible under s. 36 of the Representation er the People

Act and the election must be set aside under s. 100 of the Act. [785 A] It may be that while scrutinising the first nomination paper the Returning Officer had no material before him II> find out whether the proposer of the candidate was really an elector in the constituency or not but in the second nomination paper the proposer's name as well as place in the electoral roll was correctly mentioned.

It was improper on the part of the Returning Officer to have rcjecled the second nomination paper merely on the ground that the pan of the electoral roll in which the respondent'• name was recorded was wrongly mentioned because the correct number of the electoral rolt was mentioned in the firt nomination paper.

All the required information was hcforc the Returning Officer and the mistake was onlv clerical.

Obviously he rejected the nomination paper for the reason that the respondent was a dummy candidate but that was not a matter for him to decide. [784 D-Hl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1112 of 1967.

Appeal under s. 116-A of the Representation of People Act H 1951 from the judgment and order dated July 14, 1967 of the Delhi High Court, Himachal Bench at Simla in .C.O.P. (Election) Petition No. 3 of 1967.

H. R. Gokha/e, S. K. Khanna; S. K. Mehta and K. L. Mehta, for the appellant.

R. K. Garg, Naunit Lal and B. P. Singh, for the respondent.

The Judgment of the Court was delivered by Hegde, J,.

This appeal is directed against the order of the High Court of oelhi and Himachal Pradesh in Election Petition

No. 3 of 1967. That petition related to the election to the Hirn0chal Pradesh Legislative Assembly during the last General Election, from 9-Arki Assembly Constituency.

The only ground taken in the petition was whether the nomiaation of the respondent was improperly rejected.

The respondent had filed his nomination for the election in question on January 20, 1967. He had filed two nomination papers. The scrutiny took place on January 21, 1967. At the time of the scrutiny, the respondent was not present; his Pomination papers were rejected by the Returning Officer. The election took place in February, 1967. The two contesting candidates were the appellant and Hari Das the Congress nominee. The appellant succeeded by a margin of about 8000 votes.

After the results of the election were announced, the respondent filed an election petition with which we are now concerned.

The only ground taken in the election petition as mentioned earlier was that his nomination papers were improperly rejected.

In rejecting the nomination papers of the respondent, the Returning Officer observed as follows :

'Shri Madan Lal, resident of Village Parchech, P.O.

Ghanahatti District Mahasu filed two nomination papers before me on 20th January, 1967 which bear serial Nos. 5 and 6. According to the entry in the nomination paper serial No. 5 Shri Anant Ram proposer has been shown to be entered at serial No. 383 of 13 of the electoral rolls for 9-Arki Assembly Constituency.

From the comparison with the nnal copy of electoral rolls for this constituency, at serial No. 383 of part 13 the name of Shrimati Phullu wife of Shri Nirjal Singh has been entered.

As such this entry in this nomination paper is wrong.

As regards nvmination paper bearing serial No. 6 the candidate has shown his name to be entered at serial No. 504 of part 2 of the Electoral rolls for 9-Arki Assembly Constituency.

From the comparison with the aforesaid entry in the final copy of the electoral rolls at the aforesaid serial No. of the aforesaid part one Shrimati Darshnoo wife of Shri Ghanaya Ram has been

entered. Hence this entry in the nomination paper bearing serial No. 6 is incorrect.

At the time of scrutiny neither Shri Madan Lal nor his proposer or election agent nor any one authorised on his behalf was present so that he could be given an opportunity for correcting these entries.

This candidate while presenting his nomination papers claimed to be

th~ substitute candidate of the lndian National Congress who have put up Shri Hari Dass as their only candidate.

In view of the aforesaid circumstances it cannot be ascertained whether Shri Madan Lal is an elector in any Assembly Constituency of Himachal Pradesh or that his proposer Shri Anant Ram is an elector in the 9-Arki Assembly Constituency.

Shri M. R. Gupta. Advooate the person authorised on behalf of Shri Hari Dass was informed to convey to Shri Madan Lal that he can approach me any time upto 3.00 p.m. today for correcting these entries. Shri Madan Lal has not turned up as yet.

It is now I 5 minutes past 3.00 p.m.

Jn these circumstances there is no alternative hut' to reject both these nomination papers as the candidate does not seem to be interested in correcting these entries and filing proper and valid nomination papers.

These orders arc passed ex-parte since Shri Madan Lal has not cared co turn up.

Announced.

Sd/- R. C. Gupta. 21-1-1967.

Returning Officer.

9-Arki Assembly Constituency." F

The two nominations filed by the respondent arc marked as annexures A and B. They read as follows :

Form 2-B

(See rule 4)

ANNEXURE 'A'

Nomination paper.

Election to the Lrgi, lativc Assembly of Union territory of Himachal Pradesh (State).

I. Nomination as candidate for election to the Legislative Assembly from the 9-Arki assembly constituency.

lilRA SINGH V. MADAN LAL (Hegde, /.)

Candidate's name His postal address.

Madan Lal Village Parhech P.O. Ghanahatti. District, Mahasu.

His name is entered at serial No. 504 of the Electoral Roll for the 9-Arki in part No. 12.

Assembly Constituency My name is_Anant Ram and it is in Part No. 13 entered at serial No. 380 Electoral Roll of the Assembly Constituency for the 9-Arki Date: 20-1-1967.

C Sd./- Anant Ram Signature of Proposer.

''Decision of Returning Officer accepting or rejecting the Nomination paper.

I have examined this nomination paper in accord- D ance with section 36 of the Representation of the People Act, 1951, and decide as foll()WS : Rejected.

Shri Anant Ram proposer is not entered at SI. No. 380 of Part No. 13 of the Electoral Roll of 9-Arki Assembly constituency. Despite opportunity this entry has not been corrected.

Date: 21-1-1967.

Sd./ R. C. Gupta 21-1-1967 Returning Officer 3-15 P.M., 9-Arki Assembly Constituency.

" •• 1. the above mentioned candidate assent to this nom'ination and hcreb..- declare:- (a} that I have completed 49 years of age;

(b) that I am sponsored at this election by the Indian National Co111ress Party;

(c) that the symbols I have chosen are, in order of preference

(i) Two Bullocks with yoke on (ii) .... and

(iii) . . . • x x

• Score out this paragraph, if not applicable. •• Score out the word not applicable. (to be filled by the returning ollicfr)

Serial No. of nomination paper This nomination was delh:cred to

20/1/67 (date by the •candidate/

Dated 20/1,'67.

L3Sup.Cl/68-6

mo at my office at 1.20 P.M. (hour) on

Sd. R.C. Gupta 20/1/67

Returning Officer, 9-Arki Assembly Constituency.

ANNEXURE'B'

Form 2-B !See rule 4) Nomination paper.

[ 1968] 2 S.C.R.

Election to the Legislative Assembly of Himachal B Pradesh (State)

I nominate as a candidate for election to the legislative Assembly from the 9-Arki assembly constituency Candidate's name Madan Lal

His postal address Village Parhech P.O. Ghanahati District :'-•ahasu

His name is entered at Serial No. 504, in pan No. 2 of the Electoral Roll for the 9-Arki Assembly Constituency.

My name is Hari Nand and it is entered at serial No. 799 in Part No. 13 of the Electoral roll for the 9-Arkj Assembly Constitutency.

Date: 20-1-1967.

Sd./ Hari Nand Signature of proposer.

Decision of Returning Officer accepting or rejecting the Nomination paper.

I have examined this nomination paper in accordance with section 36 of the Representation of the People Act, 1951, and decided as follows :-Rejected.

I .. The above-mentioned candidate.", assent to this nomination •ind hereby

declare:-

(a) that I have completed 49 years of age :

(b) that I am sponso:-ed at this eJcction by the Indian J'\ational Congress party;

(c) that the symbols I have chosen arc, in order of preference.

(i) Two bullocks with yoke on (ii) ....... ar.d (iii) •score out this paragraph, if not applicable. ••score out the word not applicable.

Scriai No. of non1ination paper 6

(to bt fill('d by the Returning

Officer)

Thi~ nomination was delivered 10 me at my ,, nice at J. :u p_ ~1.

(hour) on 2u-I-67 (dated) by th,.• cnrdidate,'

Sd. R.(:_ Gupta, Rctu1nin~ OOi.:c:r,

9-:\rki Ass..:1nbly C<1nstit!;, nc)

H ~

A The name of the candidate is not entered at SI. No. 504

of Part No. 2 of Arki Assembly Constituency Electoral roll; despite opportunity he has not cared to correct the entry.

Date: 21-1-1967.

Sd./ R. C. Gupta Returning Officer, 21-1-67 3-15 P.M.

9-Arki Assembly Constituency. ,,

In the first nomination paper, the proposer was one Anant Ram. It was mentioned in the nomination paper that he is the elector shown at serial No. 380 of Part 13 of the Electoral Roll '1f Arki Assembly Constituency. This was clearly a mistake. His name is really found at serial No. 380 of Part 23. In the second nonunation paper the candidate is shown as the elector at serial No.

504 of Part 2 of 9-Arki Assembly Constituency; but really his name is found at serial No. 504 of Part 12 of that Constituency.

Hence the question is whether the grounds on which the Returning Officer rejected the nomination papers of the respondent were substantial grounds as contemplated by s. 36 of the Representation of the People Act, 1951.

Before we deal with that question, it is necessary to set out few more facts.

According to the appellant the respondent was not a genuine candidate; he was a dummy Congress candidate; he never intended to contest the election.

There is basis for this contention.

The respondent was the General Secretary of the Mahasu District Congress Committee. He never applied for any Congress ticket: nor his name was considered either by the District Congress Committee or by the Pradesh Congress Committee. He did not give the contribution required to be given by the candidate! to the party; nor did he give the security prescribed by the party.

The Congress had selected Mr . .Hari Dass, one of the then Ministers in the Himachal Pradesh Government for contesting the constituency in question.

His nam~ had been recommended by the District Congress Committee as well as by the Pradesh Congress Committee. It had been accepted by the Parliamentary Board.

He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as thg respondent went together to the Returning Officer foc filing their nominations. In fact it is clear from the order of the Returning Officer that the appellant had told him that he was only a covering candidate for Mr. Hari Dass.

It may also be noted that the respondent had declared that he was a Congress nominee. He had also asked for the Congress 'ymbols namely a pair of bullocks. It may further be noted that on the date of the scrutiny, the respondent was absent and there was nobody to represent him.

Tue Advocate

784 SUPREME COUllT llBPO!lTS

[1968] 2 S.C.R

who represented the Congress organisation did not object to the rejection of the nomination of the respondent presumably becalllie no one was interested in his nomination as the nomination of Mr.

Hari Dass had been accepted. Possibly he is now challenging the election because his party's candidate has been defeated.

At this juncture, we may notice that the respondent did not even apply for a copy of the order of the Returning Officer rejecting his nomination till the election results were announced. He admitted during his cross-examination that he had acted as the counting agent of Mr. Hari Dass. It is proved from the evidence of. the appellant that he actively canva.ssed for Mr. Hari Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a genuine candidate. He is merely availing himself of the opportunity of the rejection of his nomination paper for undoing the result of the election.

That. however, is not the end of the matter. All that we have to consider in this appeal is whether the Returning Officer was right in rejecting the nomination of the respondent. As mentioned earlier, the errors found in the nomination papers are purely clerical errors.

The Returning Officer had the duty to scrutinise the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same.

Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers.

He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers.

Evidently the Returning Officer failed in his duty.

Further, when he scrutinised the nomination papers on January 21, I 967, he had before him all the required information.

It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not; but when he came to the second nomination paper where the proposer's name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true that in that nomination paper, it had been mentioned that the candidate's name is found at serial No. 504 of part 2 of 9-Arki Assembly Constituency, though in fact it is found at serial No. 504 in part 12 of that constituency; but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll.

All the required information was before him. Obviously he rejected the nomination papers for the reason that the respondent was only a dummy candidate but that was not a matter for him , decide. If he was a dummy candidate there was occasion for Um to withdraw his candidature after the scrutiny of the nominecion papers.

Therefore it is quite clear that the respondent's

A •

-~--

A nomination papers were improperly rejected. Such a. rejection was impermissible under s. 36 and the same .is a ground for setting aside the election under s. 100 of the Representation of the People Act.

For the reasons mentioned above, we dismiss this appeal but in the circumstances of the case, we direct that the parties shall bear their own costs throughout.

G.C.

Appeal dismissed.

IDRA SINGH PAL

January 15, "1968

Repreurrtatwrr of the People Act

s. 36

s. 100

s. 116

High Court, Himachal Bench at Simla

H. R. Gokha

S. K. Khanna

S. K. Mehta

K. L. Mehta

R. K. Garg

Naunit Lal

B. P. Singh

Hegde

Hari Das

Madan Lal

Anant Ram

Shrimati Phullu

Nirjal Singh

Shrimati Darshnoo

Ghanaya Ram

Madan Lal

Hari Dass

Himachal Pradesh

Anant Ram

M. R. Gupta

section 36

Representation of the People Act, 1951

R. C. Gupta

section 36

Representation of the People Act, 1951

s. 36

Representation of the People Act, 1951

Mahasu District Congress Committee

Pradesh Congress Committee

Congress

.Hari Dass

Himachal Pradesh Government

District Congress Committee

January 21, I 967

s. 36

s. 100

Representation of the People Act


MINOR P. RAJENDRAN

STATE OF MADRAS & ORS.

January 11, 1968

[K. N. WASCHOO, C.J., R. S. BACHAWAT,

J. M. SHELAT,

G. K. MITTER A!'ID C. A. VAIDIALINGAM, JJ.]

Constitutio11 of lruii.1, Aris. 14, 15-State Government promulga, ting rules fer selection of carulidares to medical course-One rule providing for distric/·\1isc allocation of sears on basis of population-I/ discriminarory when objecr is Io a/lracr be.<t tal•nt-Socially and , ducational/y back- \vrtrd classes specified by reference to easies-Whether Art. 15(1) infringed-lnterl'it:w hy selection con1111irree-extent to which criterion for allolt~ inR mGrks can be indica1('d.

The petitioners challcngi.:d an order of the State Government by which rules were promulga1ed for selection of candidates for admission to a medical course. These rules provided for re-; ervations of scats for various rategories of candida1cs. i.e. for he Scheduled Trube< and Scheduled Castes, for 'socially and educationally backward classes', aod for women; the remaining seats were placed in the general pool available to all. One rule provided for the appointment of a selection rommittec of not more than three persons 10 interview the candidates and another. Rule 8, provided that the seats reserved in the scneral pool and for the 'socially and educationally backward classes' would be allocated among the various districts of the State on the basis of the ratio of th' population of each Diotrict to the tolal population of the State. It was contended,, inter alia, on behalf of the petitioners that r. 8, in providing for district-wi"SC distribution of the seats, violated Art. 14 of !he Constitution becaUSe such alloca- 1ion of seats might result in candidates of inferior calibre being selected in one District and those of superior calibre not being se1cc'ed in anothtr District.

Furthermore. the provision in the application fonn for the candidates as to "nativity claimed"' waC! a camouflage for discrimination on •he ground of place of birth and therefore violative of Art. 15(1). It was also claimed that the reservation for 'socially and educationally backward classes' infringed Art. 15 (I) because it was made by reference to a list of such classes specified in ahother context and that this list wa~ nothing but a list of certain cas:es; and that there was no objective test laid down in the Rules for interview and the question that were put were unrelated to s. IO(d) which lays down certain criteria for the purpose.

On behalf of the respondent State it was con1endcd that there were. better educational

"facilities in fadras city as compilre<l to other district-; and thcre(ore if district-wise selection \\'as not made candidates from Madras city would secure mahy more scats thai. was juslified on the basis of the proportion of the population of Madras city; furthermore. candidates coming from various Distric's would settle down in tho:sc Districts and thus medical help "'ould he available in sufficient measure in aJl the Dis1ricts.

HELD : Rule 8 providing for district-wise allocation was discriminatory and violative of Art. 14. The State had made out no case for such district-wise allocation and there was no nexus shown between such distribu

tion and the object to be achieved. namely, admission of the best talent H among the candidates. [794 E, FJ

The district-wise distribution on the basis of population was not juUilied even assuming that candidates from Madras city would !!et a larger number

of seats in proportion to the population of the State. That would happen because a candidate from Madras city was better. Even if the respondent's contentions were to be accep'.ed that }VOuld only justify allocation of seats between the city of Madras on one side and the rest of the State on the other and not a district-wise allocation throughout. [793 G, H] There were no facts and figures given to suggest that candidates from a particular district would by and large settle down in that district. Furthermore, the provisions as to "nativity claimed" by candidates showed that candidates would have a number of districts to choose from depending upon where they thought that their chances were best and therefore the argument. that district-wise allocation was justifiable on this ground had no merit. [794 DJ If the reservation in question had been based only on caste and had not taken ;:ito account the social and educational backwardness of the caste in question, it would be violative of Art. 15(1). But a caste is also a class of citizens and if the caste as a whole is socially and educaticmally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Art. 15(4). [790 F-G] M. R. Balaji v. State of Mysore, [1963] Supp. 1 S.C.R. 439 at pp. 459- 60, referred to.

There was no substance in the argument that there was no test provided for marking. Rule lO(d) indicates what matters have to be taken into consideration for allotting marks provided under that rule. It would be difficult to provide any further guidance in the matter and the rest must be left to the selection committee. It cannot be held that the committee did not follow the criterion indicated in r. lO(d) in allotting the marks

provided in that rule. [794 H-795 BJ

ORIGINAL JURISDICTION : Writ Petitions Nos. 194, 196 and 202 of 1967.

Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

AND Civil Appeal No. 1456 of 1967.

Appeal by special leave from the judgment and order dated August 16. 1967 of the Madras High Court in Writ Appeal No. 308 of 1967.

H. R. Gokhale, Shyama/a Pappu, M. K. Ramamurthi and Vineet Kumar, for the petitioner (in W.P. No. 194 of 1967).

M. K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioners (in W.Ps. Nos. 196 and 202 of 1967).

Abdul Karim and K. Rajendra Chaudhuri, for the appellant lin C.A. No. 1456 of 1967).

C. K. Daphtary, Attorney-General, G. Ramanujam and A. V.

Rangam, for the respondents (in W.Ps. Nos. 194 aild 196 of

1967) respondents Nos. 2 to 6 (in C.A. No. 202 of 1967) and respondent "lo. 1 (in C.A. No. 1456 of 1967).

7 88 SUPREME COUllT REPORTS

[1968] 2 S.C.R.

C. K. Daphtary. Attorney-General, K. N. Mudaliar, Advocate- General for the State of Madras, A. V. Rangam and G. Ramanu- 1am. for respondent No. I (in W.P. No. 202 of 1967).

The Judgment of the Coun was delivered by

Wanchoo, C.J.

The three petitions and the civil appeal challenge the same order of the State of Madras by which rules were promulgated for selection of candidates for admission to the First Year integrated M.B.B.S. Co•.irse.

We shall briefly refer to the provisions of the Rules to understand the . attack made thereon. It appears that there was a large rush of candidates for admission to the medical colleges in the State of Madras while the seats therein were limited.

In consequence, the State o{ Madras which runs these colleges framed rules for admission to them.

It is not necessary to refer to all the Rules and we shall

confin~ ourselves to those Rules which have a bearing on the challenge made in these cases.

Rule 2 provides for reservation of 10 seats for certain categories.

We arc however not concerned with it as it is not challenged. Rule 3 provides for appointment of a Selection Committee of not more than "hrce persons.

The Committee has to interview all candidates who arc qualified and eligible for admission to the course and the interview is for verifying the data and allotting marks for extra curricular activities.

Rule 4 provides for reservation of seats for Scheduled Tri~ and Scheduled Castes, with which also .we are not concerned in the present cases.

Rule 5. which is one of the rules under challenge, provides for reservation for socially and educationally backward classes, and lays down that for the purpose of this rule "socially and educationally backward classes" will mean those classes which have been specified in Group III of the revised Appendix 17-A to the Madras Educational Rules, issued with G.O. (Ms) 83<; Education, dated 6th April, 1951, as subsequently amended.

Rule 6 provides for reservation for women, which is also not under challenge, and the remaining se; its, under r. 7, go to the general pool available to all.

Rule 8, which is another rule under challenge, provides that the seats reserved in the general pool and the seats reserved for the wcially and educationally backward classes will be allocated among the various districts on the basis of the ratio of the population of each districts to the total population of the State. This districtwise allocation will not apply to seats reserved for Scheduled Tribes and Scheduled Castes provided under r. 5.

Then follows r. 9 as to the procedure for selection and qualifications of candidates.

Rule I 0( d) provides for a maximum of 75 marks for cxtr~ curricular activities which have been specified under live heads.

Funhcr the Rules also prescribe the form of

MJENDRAN v. MADRAS (Wanchoo, C.J.) 789

pplication and as the selectiqn is on a districtwise basis, the form has ; column to the effect: "NATIVITY CLAIMED". It further appears from the form that nativity. depends on. the S.S.L.C. Register, i.e., the district from which the candidate passed the S.S.L.C. Examination, or on the nativity certificate of parents.

Further for the purpose of nativity, the place where the candidate's parents were born or the place where they possessed immovable property has to be considered.

The candidate may choose. the district from which he passed the S.S.L.C.

Examination, but he may, in the alternative, choose some other district on the ground of nativity, and this choice leaves it open to h.i;:i to choose the district of permanent residence of the father or the mother. Further the form of certificate shows that where the parents are dead even the guardian's nativity can be the basis of the district which a candidate may claim.

On the basis of these rules, a number of Selection Committees were appointed, each consisting of three members. It is not in dispute that the three members of the Selection Committee D did not sit together to interview candidates; each member was allotted 25 marks out of the total of 7 5 prescribed for the interview and interviewed each candidate separately.

This method of selection has also been attacked as against the Rules.

Four main contentions have been raised before us in these cases. It has been urged that r. 5, which provides for reservation for socially and educationally backward classes is bad, as it violates Art. 15 of the Constitution on the grotmd that it is based entirely on consideration of caste. The second attack is on tlre districtwise allocation under r. 8 on ihe ground that it violates Articles 14 and 15.

It is urged that in effect the selection is made to a large extent en the basis of thr; place of birth and this violates Art. 15.

It is also urged that districtwise allocation of seats for medical colleges is discriminatory, for such allocation has no nexus with the object of selection, namely, to secure the best talent for admission to medical colleges. Thirdly, it is urged that the procedure evolved by the Selection Committee for inter- G. view, which we have already referred to, was in violation of the Rules. It is also urged that there was no objective test laid down in the Rules for interview and the questions that were pnt were unrelated tor. lO(d) •. which lays down certain criteria for the purpose. Lastly, it is urged that tile selection was ma/a fide inasmuch as the two official members contrived to secure caste

H representation in the matter of admission.

The petitions have been opposed on behalf of State of Madras as also the civil appeal. It has been urged that there is no substance in any of the contentions raised in these cases. It is

SUPREME COURT REPORTS

[1968 J 2 S.C.R.

unnecessary to refer to the stand taken by the State of Madras in A detail at this stage for it will appear at appropriate places when we consider the various points raised in these cases.

Before we consider the points raised in these cases, we may refer to a preliminary objection raised on behalf of the respondents.

It is urged that the selected candidates whose number is in the neighbourhood of I, I 00 have not been made parties in these cases and therefore the cases should be rejected on that ground alone.

Lerned counsel for the petitioners/appellant however, accepted tht so far as the present selections are concerned, they would not press for quashing them, for in any case it would be too IJte for ihe; e petitioners/ appellant to get admission in medical collegs this year. They therefore pray that the points raised may be decided for the future and the selection made this year may not be disturbed. On that basis it is urged on behalf of the petitioners n1 the appellant that it would not be necessary to make the camliciates selected for this year parties.

In view :if this statement ::t the bar we propose to decide the points rai5ea in these cases hut shall not disturb the selections made this year.

The first challenge is to r. 5 on the ground that it violates Art. I 5 of the Constitution.

Article 15 forbids discrimination against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. At the same time Art. lS ( 4) inter a/ia permits the State to make any special provision for the advancement of any socially and educationally backward classes of citizens.

The contention is that the list of sociaily and educationally backward classes for whom reservation is made under r. 5 nothing but a list of certain castes.

Therefore, reservation in favour of certain castes based only on caste considerations violates Art. 15 ( J ) , which prohibits discrimination on the ground of caste only.

Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Art. 15 (I). But it must not be forgotten that a caste is also a class of citizens and if the casle as a whole is socially and educationally backward resrv~1ion can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Art. 15 ( 4). Re!erence in this connection may be made to the observations of this Court in M. R. Balaji v. State of Mysore(') to the effect that it was not irrelevant to consider the caste of a class of citizens in determining their social and educational backwardness.

It was further observed that though the caste of a class of citizens may

(I) (19631 Supp. I S.C.R. 439 at p. 459·460.

be relevant its importance should not be exaggerated; and if classification of backward classes of citizens was based solely on the caste of the citizen, it might be open to objection. It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens.

In its reply, the State of Madras has given the history as to how this list of backward classes was made, starting from the year 1906 and how the list has been kept upto date and necessary amendments made therein.

It has also been stated that the main criterion for inclusion in the list was the social and educational backwardness of the caste based on occupations pursued by these castes. Because the members of the caste as a whole were found to be socially and educationally backward, they were put in the list.

The matter was finally examined after the Constitution came into force in the light of the provisions contained in Art. 15 ( 4). As it was found that members of these castes as a whole were educationally and socially backward, the list which had been coming on from as far back as 1906 was finally adopted for purposes of Art. 15 ( 4).

In short the case of the State of Madras is that the castes included in the list are only a compendious indication of the class of people in those castes and these classes of people had been put in th!' list for the purpose of Art. 15 ( 4) because they had been found to be socially and educationally backward.

This is the position as explained in the Affidavit filed on behalf of the State of Madras. On the other hand the only thing stated in the petitions is that as the list is based on caste alone it is violative of Art. 15 (1). In view however oi the explanation given by the State of Madras, which has not been controverted by any rejoinder, it must be accepted that though the Jfst shows certain castes, the members of those castes are really classes of fducationally and socially backward citizens.

No attempt was made on behalf of the petitioners/ appellant to show that any caste mentioned in this list was not educationally and socially l::ackward.

No such averment was made in the affidavit in support of their caes, nor was any attempt made to traverse the

cae. piit forwar~ on behalf of the State of Madras by filing a reiomder affidavit to show that even one of the castes included in the list was not educationally and socially backward. In this

sta~ of the pleadings, we must come to the conclusion that though the list is prepared caste-wise, the castes included therein are as a whole educationally and socially backward and therefore the list is not violative of Art. 15. The challenge to r. 5 must therefore fail.

SUPREME COURT :RJ!PORTS

(1968] 2 S.CR.

The next attack is on r. 8, which provides for districtwis~ dis- 1ribution of scats according to population of the district.

This is attacked fiist on the ground that it violates Art. 15 (I) which lays down that there shall be no discrimination on the basis of place of binh and it is urged that the provision for "nativity claimed" in the form is really a camouflage for discriminating on the ground ot place of birth.

We have already referred to the provisions rdating to nativity certificate.

We must say that these provisions me as complicated and confusing as possible and there m:iy be

some force in the contention raised that this has been done to .get over th~ prnhibirion in Art. I 5 (I) with respc-:t to discnrnination on tile basis of place of birth. What exactly "nativity" means is not clear iroP'l the rules; it may be the place from where the candidate flssed his S.S.L.C. Examination; it may be the p!acc where his 'ather was born or his mother was born; it may b1 the

plzce where his father has propcrt; or his mother has property; Or it may be the place of permanent residence of the parents or ;?Uardian. for the words "permanent residence" appear in the fonn of nativity certificate.

But the dictionary meaning ot the word "nativity" is bi•th and when the Rules provide for nativity certi ficate they really mean the place of birth.

However, it appears that the place of birth of the candidate is nowhere mentioned in the Rules.

Even though there may be some substance in the charge that all this complicated and confusing methud has been provided in crder to get over the prohibition in Art. 15 (I) by a camouHage, we cannot say that there is a clear violation of An. 15 (I) for the district which the candidate may claim does not depend upon the place of his birth.

We cannot therefore strike down r. 8 on the ground that it discriminates on the basis of place of binh of the candidate wncerned.

In 1hc allernative, it is urged that district-wise dis1ribution violates An. 14 of the Constitution because it denies equality before the law or equal protection of the laws, inasmuch a.< such allocation of seats may result in candidates of inferior calibre being selec1ed in one district while candidates of superior calibre cannot be selcc1ed in another district.

It has not been denied on behalf of the State that such a thing cannot happen, though there are no statistics available in this behalf because the mark-sheet< were all destroyed after the interviews.

Tile quest.ion whctha di, trictwi, c allocation is viob:ivc of Art. 14 will dencnd on what i' the object to be achieved in th~ matter of admission to medical colleges.

Considerin~ the fact that thc1 e i' :i larger number of cand.ldates than seats -avaiiabk selection has got io be made.

The object of selection can only

be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward. classes. Further whether selection is frem the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources. 1f that is the object, it must necessarily follow that that object would be defeated if seats are allocated district by district.

It cannot be and has not been denied that the object of selection. is to secure the best possible talent from the two sources so that the country may have the best possible doctors. If that is the object, the argument on behalf _of the petitioners/ appellant is that that object cannot possibly be served by allocating seats districtwise.

It is true that Art. 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification.

The fact however that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved.

Therefore, as tile object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats districtwise has no reasonable relation *ith the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even If reasonablc, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources.

Let us now look to the justification which has been put forward on behalf of the State of Madras ill support of lhis districtwise allocation. It is said that there are better educational facilities in Madras city as compared to other districts of L'le State arid rherefore if districtwise selection is not made, candidates from Madras city would have an advantage and would secure many more seats than justified on the basis of proportion of the population of Madras city compared to the population of the State as a whole.

This in our opinion is no justification for districtwise allocation which results in discrimination, even assuming that

candidate~ from Madras city will get a larger number of seats in proportion to the population of the _Stat.e, That would happen because a candidate from Madras city 1s better. If the obiect is to attract the best talent, from the two sources, districtwise allocation in the circumstances would destroy that object. Further even if we were to accept this contention that would orJy justify allocation of seats between the city of Madras on one side and

(1968] 2 S.CR

the rest of the State on the other and not a districlwise allocation A throughout.

But aparl from this, we are of opinion that the object being what we have indicated, there is no reason why there should be discrimination which would go against the candidates from Madras city.

We may add that candidates who pass from Madras city need not all be residents of the city for it is common knowledge that schools and colleges in the capital ity ; ittract B students from all over the State because of better cducatio:ial facilities.

Another justification that has been attempted is tbat candid; ites coming from various districts would settle down in those districts and thus medical help would be available in sufficient measure in all the districts.

Now this was not stated in the afli- C davit on behalf of the State of Madras.

Besides there are no facts and figures to suggest that candidates from a particular district would by and large settle down in that district.

Further !he various options in the matter of nativity certificate to which we have referred, show that candidates will have a number of districts to choose from depending upon where they think that D their chances arc best and therefore the argument th; it districtwise allocation is justifiable on this ground is in our opinion of n.J merit. We arc satisfied therefore that the State of Madras has

made out no case for districtwise allocation of scats in medical colleges.

We are also satisfied that such allocation results in discrimination and there is no nexus between this territorial dis- E tribution and the object to be achieved, namely, admission of the hest talent from the two sources already indicated. We are therefore of opinion that allocation of seats on districtwise basis is violative of Art. 14.

We may add that we do not mean to say that territorial classification is always bad under all circumstances.

But there is no doubt that districtwise classification which is being F justified on a territorial basis in these cases is violative of A;1. 14. for no justification worth the name in support of the classification has been made out.

We therefore hold that r. 8 providing for districtwise allocation is bad .. as it violates Art. 14 and we hereby strike it down.

In view of our decision as to r. 8 and in view of the fact that there is no question of disturbing the selection made this year, we do not think it necessary to decide finally whether the procedure for selection followed in the present cases to which we have al read\ referred is in accordance with the Rules or not. All that we need say is that it cenainly looks odd that the members of the selection committee should sit separately.

Rut we do not propose ; o decide the point finally in the present cases.

We do not find any substance in the argument th"• there is no test provided for marking. Ruic 10( d) indicates what matters

RAJENDRAN v. MAl>MS (Wanchoo, C.J.) 795

have to be taken into consideration for allotting marks provided under that rule~ We do not think that it is possible to provide any further guidance in the matter and the rest must be left to the Selection Committee. It may be added that we are not prepared to accept that th~ Committee did not follow the criterion Indicated in r. lO(d) in allotting the marks provided in that rule.

This leaves the question of mala fide.

Only two points are urged in this connection. The first is that the official members of the Selection Coinmittees 1:9ntrived to get caste representation in the matter of selection at the behest of the Government. There is in our opinion no proof of this and we are not prepared to accept that this was done. The second point in support of mala fides is that mark-sheets were destroyed after the setion was over. It does look odd that mark-sheets were so destroyed and we should have thought that mark-sheets would be kept for some period at any rate after the selection was. over. But from this it is not possible to infer that the selection itself was mala-fide.

Moreover the attack on the selection on e ground of ma/a fides will affect the current selectio.n only and therefore in view of .the stand taker; at the bar by the petitioners this ground does not now avail them.

The ground that the selection was mala fide must therefore fail.

We now come to the civil appeal.

Learned counsel for the appellant wished to raise an argument based on Art. 21, which deals with protection of life and personal liberty. Apart from the question whether admission to professional colleges results in deprivation of life and liberty, we did not allow learned counsel to develop this point because no such case was made out before the Division Bench of the High Court which heard the appeal.

We told learned counsel that he could argue only those points which had been urged befote the Division Bench. The only point urged before the Division Bench was on the basis of a provision in the University Act as to eligibility and qualification of candidates for admission to medical colleges.

There is however no substance in the contention raised in this behalf, for the Rules as to eligibility and qualification as framed by the University have been followed.

So far as admission is concerned, it has to be made by those who are in control of the Colleges,-in this case the Government, because the medical colleges are Government colleges affiliated to the University. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qurJifications. . This was what-was done in these cases and therefore the selection cannot be challenged on the ground that it was not in accordance with the University Act and the Rules framed thereunder.

796 SUPllEME C:OUllT llPOl.TS [1968] 2 S.C.Jl.

We therefore partly allow the petitions and strike down rule 8 A of the Rules for admission to medical colleges, which deals with districtwise allocation.

The appeal is also allowed to the same extent.

We have already indicated that so far as the cction for the current year is concerned, it will stand; however, r. 8 will not be enforced when selection is made hereafter. The petitioners/ appellant will get their costs, one set of hearing fee.

R.K.P S.

Petitions an.ti Appeal allowed in part.

MINOR P. RAJENDRAN

STATE OF MADRAS & ORS

January 11, 1968

R. S. BACHAWAT,

J.

M. SHELAT

G. K. MITTER

Art. 15(1)

Art. 14

Art. 15(1)

Art. 15

Madras city

Art. 14

Madras

Art. 15(1)

Art. 15(4)

Art. 32

Constitution of India

H. R. Gokhale

Shyama/a Pappu

M. K. Ramamurthi

Vineet Kumar

Shyamala Pappu

Abdul Karim

K. Rajendra Chaudhuri

C. K. Daphtary

G. Ramanujam

A. V.

Rangam

K. N. Mudaliar

A. V. Rangam

G. Ramanu-

Wanchoo

State of Madras

State o{ Madras

6th April, 1951

Art. 15

Articles 14 and 15

Art. 15

Article 15

Art. 15

Art. 15

Art. 15

Art. 15

Art. 15

State of Madras

Art. 15

Art. 15

Art. 15

Art. 15

Art. 15

Art. 14

Art. 14

Art. 14

Art. 14

Art. 21