MATHURA PRASAD BAJOO JAISWAL & ORS.

DOSSIBAI N. B. JEEJEEBHOY

February 26, 1970

(J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.] B

Code of Civil Procedure (Act 5 of 1908), s. 11-Jurisdiction of Court-Erroneous decision-If res judicata.

The appellant obtained lease of an open land for constructioµ of buildings.

After the constructions, the appellant applied 'for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

The application was rejected holding that the provi C sions of the Act did not apply to open land let for construction. This view \ras confirmed by the High Court. Sometime thereafter in another case the High Court held that the question whether the provisions of the Act applied to any particular lease must be determined on its terms and a building lease in respect of an open plot was not excluded from the provisions of the Act solely because open land may be used from residence or educational purposes only after a structure is built thereon.

Relying upon this judgment, 1hc appellant filed a fresh application for determining the D standard rent. The Trial Judge rejected the, application holding that question of the applicability of the Act was res judicata since it had been finally decided by the High Court between the same paq.ies in respect of the same land in the earlier proceeding for fixation of standard rent.

The order was confiimed by first appellate court and on further appeal by the High Court.

HELD : The judgment did not operate as res judicata.

A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision o'f the Court.

If by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the decision will not, operate as res judicata.

Similarly by an erroneous

0decision if the Cotirt assumes jurisdiction which it does not possess under the statute, the decision will not operate as res judicata be hrcen the same parties, whether the cause of action in the subsequent F litigation is the same or other\vise.

In determining the application of the rule of res judicnta the court is not concerned \vith the correctness or otherwise of the earlier judgment.

The matter in issue. if it is one purely of fact, decided in the earlier pro ceedins by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened.

A nlixed question o'f law and fact determined in the earlier ptoceeding be G t\\een the same parties may not, for the me reason, bequestioned in a subsequent proceeding between the same parties where the cause of action is the same, for the expression ''the matter in issue" in s. 11, Code of Civil Procedure means the right litigated between the parties, i.e., the facts on which the right is claimed ot denied and the law applicable to the determination of that issue.

Where. however, the question is one purely of la\\' and it rcb.tes to the jurisdiction of the Court or a decision of the Court sanctioning: son1ething which is illegal, by resort to the rule o'f res H judicata a party affected by the decision will not be precluded from challenging the validity of th.at order because of the rule of res judicata. for a rule of procedure can.not supersede the law of the land.

If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule elf law applicable to the parties relating to the jurisdiction of the Court, in derogation of the rule declared by the 'Legislature. f835G-836 Fl

Parllzasardhi Ayyangar v. Chinnakrishna Ayyangar, I.LR. 5 Mad. 304, Chamanlal v. Bapubhai, I.LR. 22 Born. 669, Kanta Devi v. Kalalvati, A.LR. 1946 Lah. 419, Tarini Charan Bhattacharjee v. Keda1 Nath Haldar, I.LR. 56 Cal. 723, and Broken Hill Proprietary Company Ltd.

v. Municipal Council of Broken Hill, 1926 A.C. 94, approved.

Chandi Prasad v. Maharaja Mahendra Mahrndra Singh, I.L.R. 23 All. 5, disapproved.

Bindeshwari Charan Singh v. Bagesl11vari, Charan Singh, L.R. 63 I.A. 53, doubted._

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1061 and 1627 to 1629 of 1966.

Appeals by special leave from the judgment and order dated March 9, 10, 1965 of the Bombay High Court in Revision Applications Nos. 1428, 1427, 1430 and 1676 of 1961.

M. C. Chagla, J. L. Hathi, K. L. Hathi and K. N. Bhat for the appellants (in all the appeals).

R. P. Bhat, Janendra Lal, R. A. Gagrat and B. R. Agarwa/a, for the respondent (in all the appeals).

The Judgment of the Court was delivered by

Shah, J.

Under an indenture dated August 2, 1950, Dossibai-respondent in this appeal-granted a lease of 555 sq. yards in village Pahadi, Taluka Borivli to Mathura Prasad-appellant herein-for constructing buildings for residential or business purposes. The appellant constructed buildings on the land. He then submitted an application in the Court of the Civil Judge, Junior Division, Borivli, District Thana, that the standard rent of the land be determined under s. 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Civil Judge rejected the application holding that the provisions of .the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947, did not apply to open land let for constructing buildings for residence, education, business, trade or storage.

This order was confirmed on September 28, 1955, by a si, ngle Judge of the Bombay High Court in a group of revision applications : Mrs. Dossibai N. B. Jeejeeblwv

v. Hi11goo Manohar Missar: Nos. 233 to 242 of 1955.

But in Vinayak Gopa/ Limaye v. Laxman Kashinath Athavale(1) the High Court of Bombay held that the question whether s. 6(1) 0f

the Act applies to any particular lease must be determined on its terms and a building lease in respect of an open plot is not exduded from s. 6(1) of the Act solely because open land may be A used for residence or educational purposes only after a structure is built thereon. Relying upon this judgment, the appellant filed a fresh petition in the Court of the Small Causes, Bombay, for an order determining the standard rent of the premises. The application was filed in the Court of Small Causes because the area in which the land was situated had since been included within the• B limits of the Greater Bombay area. The Trial Judge rejected the application holding that the question whether to an open piece of land let for the purpose of constructing buildings for residence. education, business or trade s. 6 ( 1) of the Act applied was res judicata since it had been finally decided by the High Court between the same parties in respect of the same land in the earlier proceeding for fixation of standard rent. The order was confirm- C ed by a Bench of the Court of Small Causes and by the High Court of Bombay. With special leave, the appellant has appealed to this Court.

The view expressed by the High Court of Bombay in Mrs.

Dossibai N. B. Jeejeebhoy v. Hingoo Manohar Missar (Civil) Revision Application No. 233 of 1955 (decided on September 28,

1955) was overruled by this Court in Mrs. Dossibai N. B. Jee; eebhoy v. Khemchand Gorumal & Others('). In the latter case the Court affirmed the view expressed by the Bombay High Court in Vinayak Gopal Limaye's case(2 ).

But all the Courts have held that the earlier decision of the High Court of Bombay between the same parties and relating to the same land is res judicata.

Section 11 of the Code of Civil Procedure which enacts the general rule of res judicata, insofar as it is relevant, provides :

"No Court shall try any suit or issue in which the matter ilirectly and substantially in issue has been ilirectly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court comtent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." The Civil Judge, J uni()r Division, Borivli, was competent to try the application for determination of standard rent, and he held thats. 6(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, did not apply to open land let for construction of residential and business premises.

The rule of res judicata applies if "the matter directly and substantially in issue" in a suit or proceeding was ilirectly and sub-

stantially in issue in the previous suit between the same parties and had been heard and finally decided by a competent ort.

The Civil Judge, Junior Division, Borivli, dcided the applcat!on

between the parties to the present procec:dmg for detenrunation of standard rent in respect of. the ame p1ec: of land let for con struction of buildings for res1denllal or busmess purposes. The High Court has held that a decision of a comtent Court may operate as res judicata in respect of not only an lSSUe of fact, but mixed issues of Jaw and fact and even abstract questions of law.

It was also assumed by the High Court that a decision relating to the jurisdiction of the Court to ntertain or not to e1_1teain a proceeding is binding and conclusive between these parlles m res pect of the same question in a later proceeding.

But the doctrine of res judicata belongs to the domain of pro cedure : it cannot be exalted to the status of a legislative direction between the parties s<:> as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of Jaw and fact and relating to the right in dispute bet ween the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in an other proceeding between the same parties : the "matter in issue" may be an issue of fact, an issue of JaW, or me of mixed law and fact.

An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be re-0pened between them in another proceeding.

The previous decision on a matter in issue alone is res judicata : the reasons for the decision are not res judicata.

A matter in issue between the parties is the right claimed by one party and denied by the other, and the claimof right from its very nature depends upon proof of facts and application of the relevant law thereto.

A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the deterniination of the transaction which is the foundation of the right and the relevant law applicable to the determination of the transactions which is the source of 'the right is res judlcata.

A previous decision on a matter in issue is a composite decision : the decision of law cannot be dissociated_ rom the decision on facts on which the right is founded.- A decJS10n on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor

when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law.

The authorities on the question whether a decision on a question of law operates as res judicata disclose widely differing views.

In some cases it was decided that a decision on a question of law can never be res judicata in a subsequent proceedimg between the same parties : Parthasardhi Ayyangar v. Chinnakrishna Ayyangar('); Chamanlai v. Bapubhai('); and Kanta Devi v. Kalawati( 3 ).

On the other hand Aikman, J., in Chandi Prasad v. Maharaja Mahendra Mahendra Singh(') held that a decision on a question of law is always res judicata.

But as observed by Rankin, C.J., in Tarini Charan Bhattacharjee v. Kedar Nath Haldar(') :

"Questions of law are of all kinds and cannot be dealt with as though they were all the same. Questions of procedure, questions affecting jurisdiction, questions of limitation, may all be questions of law. In such questions the rights of parties are not the only matter for consideration."

We may analyse the illustrative cases relating to questions of law, decisions on which may be deemed res judicata in subsequent proceeding. In Bindeshwari Charan Singh v.

Bageshwari Charan Singh( 6 ) the Judicial Committee held that a decision of a court in a previous suit between the same parties that s. I 2A of the Chota Nagpur Encumbered Estates Act 6 of 1876 which renders void a trainsaction to which it applies was inappljcable, was res judicata.

In that case the owner of an impartible estate, after his estate was

releaed from management, executed a maintenance grant in favour of his minor son B, but without the sanction of the Commissioner as required by s. l 2A of the Act. B on attaining majority sued his father and brothers for a maintenance grant at the rate of Rs. 4,000 per annum.

The claim was decreed, and the plaintiff was awarded a decree for a grant of Rs. 4,000 inclusive of the previous grant of 1909, and the Court held that the grant of 1909 was valid in law.

The father implemented the decree and made an additional maintenance grant upto the value of the decreed sum. In an action by the sons of B's brothers challenging the two grants on the plea that the grants were illegal and not binding upon them, the Judicial Committee held that the plea was barred as res judicata in respect of both the grants-in respect of the first because there was an express decision on the validity of the first grant in the earlier suit, and in respect of the second the

(I) I.LR. 5 Mad. 304.

(2) I.LR. 22 Born. 669.

(3) A.LR. [1946] Lah. 419.

(4) I.LR. 23 All. 5.

(5) l.L.R. 56 Cal. 723.

(6) LR. 63 I.A. 53. ·

decision in the first suit was res judicata as to the validity of the second grant which was made in fulfilment of the obligation under the Court's decision. The Judicial Committee held that in respect of the first grant, the decision that s. 12A did not apply to the grant, was res judicata, and in respect of the second grant the construction between the same parties of s. 12A was res judicata.

Validity of the second grant was never adjudicated upon in any previous suit; the second grant was held valid because between the parties it was decided that to the grant of maintenance of an impartible zamindari s. 12A of the Chota Nagpur Encumbered Estates Act had no application. This part of the judgment of the Judicial Committee is open to doubt.

Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties : Tarini Charan Bhattacharjee's case('). It is ol:!vious.that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.

In a case relating to levy of tax a decision valuing property or determining liability to tax in a different taxable period or event is biinding only in that period or event, and is not binding in the subsequent years, and therefore the rule of res judlcata has no application; see Broken Hill Proprietary Company Ltd. v. Municipal Council of Broken Hill(').

A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J., observed in Tarini Charan Bhattacharjee's case(') :

"The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided."

A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata.

Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata bet-

(l) l.L.R. 56 Cal. 723.

(2) [1926] A.C. 94.

ween the same parties,_ whether the cause of action in the subsequent litigation is the same or otherwise.

It is true that in determining the application of the rule of res judicota the Court is not concerned with the correctness or otherwise of the earlier judgment.

The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subseguent litigation between the same parties be regarded as finally decided and cannot be reopened.

A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding betwe.en the same parties where the cause of actiqn is the same, for the expression "the matter in issue" in s. 11 Code of Civil Procedure means the right litigated between -the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination -Of that issue.

Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or .a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule -Of res judicata, for a rule of procedure cannot supersede the law of the land.

In the present case the decision of the Civil Judge, Junior Division, Borivli, that he had no jurisdiction to entertain the application for determination of standard rent, is, in view of the judgment of this Court, plainly erroneous : see Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal & Others('). If the decision in the previous proceeding be regarded as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature.

The appeals are allowed, and the orders passed by the High Court and the Court of Small Causes are set aside and the proceedings are remanded to the Court of First Instance to deal with and dispose them of in accordance with law. There will be no order as to costs throughout.

Y.P.

Appeals allowed.

(1) [1962] 3 S.C.R. 928.

MATHURA PRASAD BAJOO JAISWAL & ORS

DOSSIBAI N. B. JEEJEEBHOY

February 26, 1970

C. SHAH

K. S. HEGDE

A. N. GROVER, JJ.

Code of Civil Procedure

s. 11

s. 11

Code of Civil Procedure

L.R. 63 I.A. 53

CIVIL APPELLATE JURISDICTION

M. C. Chagla

J. L. Hathi

K. L. Hathi

K. N. Bhat

R. P. Bhat

Janendra Lal

R. A. Gagrat

B. R. Agarwa

Shah

Dossibai

Taluka Borivli

Mathura Prasad

s. 11

September 28, 1955

Bombay High Court

High Court of Bombay

s. 6(1)

s. 6(1)

Court of the Small Causes, Bombay

Bombay

s. 6

September 28,

1955

Vinayak Gopal Limaye

Section 11

the Code of Civil Procedure

Civil Judge, J uni()r Division, Borivli

Civil Judge, Junior Division, Borivli

Aikman

Rankin

LR. 63 I.A. 53

s. 12A

s. 12A

s. 12A

Tarini Charan Bhattacharjee

s. 11

Code of Civil Procedure

[1962] 3 S.C.R. 928


JAYVANT RAO AND OTHERS

CHANDRA KANT RAO~

OTHERS February 26, 1970

[S. M. S!KRI AND V. BHARGAYA, JJ.]

Constitution of India, Art. 372(1)-Ru/er by order applying law of prinzogeniture to one Jagir and 1naking it impartible-lf Order legislative and therefore valid.

L had two sons, G and M. L. and h.is elder son G were granted a Jagir by the then Ruler of Kotah, jointly in their names, in lieu ell a debt which the Ruler owed to them. This property was treated as property of the joint family of L. The name of M, the second son born after the grant, was also mutated against the Jagir villages.

The names of the descendants of G and M were from time to time similarly mutated against the Jagir and this Jagir as well as other property of the joint family was managed for some time by the eldest member belonging to either branch of the family.

The respondent C was a descendant of G and claimed in 1937 before the Revenue Commissioner that as the eldest son in the eldest branch he alone had the right over the Jagir according to the custom and usage in Rajputana and, consequently, mutation in the records should be in his name alone.

On a report by the Revenue Commissioner, the Ruler passed an order on 22nd January, 1938, directing that the Jagir, like all other Jagirs in the State should be given the status of an irnpartible estate and should be liable to render 'Cbakri' and 'Subchintki' to the Ruler. It was further ordered that the Jagir would be governed by the rule of primogeniture, so that C alone would be held to be Jagirdar.

The appellants, who were the descendants of M, sought partition oi all the family properties including the villages in the Jagir. Although the Trial Court dismissed the suit, on appeal, the High Court granted a decree in respect of other properties but upheld the dismissal of the suit in so far as the appellants had claimed a share in the Jagir.

The appellants claimed that the Jagir having been joint Hindu property, their rights as successors-in-interest of M could not be defeated by the order of Ruler dated 22nd January, 1938, and consequently, the appellants were entitled to thei"r proper share in the Jagir. It was contended that all orders passed by an . .independent and sovereign Ruler do not have the force of law. It is only those orders which purport to lay down a law for the State which cannot be challenged and which would remain in force even after the merger of the Kotah State in India and, after the enforcement of the Constitution, under Art. 372 of the Constitution. It was submitted that, when passing the Order dated 22nd January, 1938, the Ruler was only exercising executive powers df directing mutation of names and was not exercising any legislative po\vers.

HELD : Dismissing the appeal.

(i) The High Court was right in holding that the villages in .the Ja_gir, at the time when the suit for partition was instituted, were 1mparttble

property governed by the law of primogeniture and C alone could be treated as the owner of these villages.

(ii) The very nature of the Order, which changed the law applicable .to the Jagir, indicated that it was a legislative act and not a mere executive order. The Ruler did not purport to lay down that the Jagir was already governed by the rule of primogeniture; what he did was to apply the rule of primogeniture to this J agir for future.

Such an order could only be made in exercise of his prerogative Of laying down the law for the State.

The mere fact that it was laid down for one single Jagir and was not a general law applicable to others in the State was imrr.aterial, because it does n'ot appear that there were any other similar Jagirs which also required alteration of the law applicable to them. [843 B-D]

(iii) Although no special procedure of law-making was adopted by the Ruler When making this Order, that circumstance could not change the nature of the Order specially when there was nothing to indicate that there was any recognised procedure of law-making in the Kotah State at that time. [844 F-G]

Raikumar Narsingh Pratap Singh Deo v. State of Orissa and Another [1964] 7 S.C.R. 112; ref"Ted to.

State of Guiara! v. Vora Fiddali Badruddin Mithibarwa/a [1964] 6 'S.C.R. 461 and Maior Raniit Singh Rao Pha/ke "· Smr. Raia Bal Sahiba

(dead) by her legal representatives and Vice Versa Civil Appeal Nos. 982 and 983 of 1964 deci\led on 18th July, 1967 ; distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1370 of 1966.

Appeal from the Judgment and decree dated February 16, 1966 of the Rajasthan High Court in D. B. Civil Regular First Appeal No. 86 of 1958.

R. K. Garg, S. C. Agarwal, D. P. Singh, V. J. Francis and S. Chakravarty, for the appellant.

D. V. Patel, Janendra Lal, and B. R. Agarwala, for the respondents.

The Judgment of the Court was delivered by

Bhargava, J.

Th!s appeal arises .<; mt of a suit for partition of properties in the family of one Lala11 Ramchandra who was the G common ancestor of the parties to the suit. .. He had tw<? s?ns, Govindraoji and Motilal alias KrishnaraOJI.

The plamttffs/ appellants and the non cotesting profoa respondents are the descendants of Motilal, while the cmtesttng resp<>ndents are the descendants of Govindraoji, the principal one bemg Chandrakant Rao who was defendant No. 1 in the suit.

The appellants sought H partition of all the family properties, including eight villges known as "the sarola Jagir" whic~ w_ere situated. i°; th_e ersh1le State. of Kota.

The trial Court d1sm1ssed the smt 1n its entirety, holdmg

that none of the properties in suit was ancestral property.

On appeal by the present appellants, the High Court of Rajasthan upheld the dismissal of ihe suit insofar as the appellants had claimed a share in the eight villages fanning the Sarola Jagir, while the suit in respect of the other properties was decreed and a preliminary decree passed in respect of those properties.

The appellants have come up to this Court in this appeal, by certificate granted by the High Court, against the order of the High Court refusing to grant partition of the eight villages of the Saro la J agir.

In order to appreciate the point raised in this appeal the history of this J agir in this family may be recited briefly. Lalaji Ramchandra and his eldest son Govindraoji were awarded this Jagir by means at a Parwana dated 8th April, 1838 issued by His Highness Maharao Ramsingh, Ruler of Kotah.

It appears that the Maharao had contracted debts with the family of Lalaji Ramchandra even in the time of his ancestors and, at the relevant time, the amount of debt exceeded Rs. 9 lakhs.

This debt was guaranteed by the British Government. In lieu of this debt, this Jagir, which was already being enjoyed by La!aji Ramchandra with certain limitations, was g[ven jointly to him aind his son Govindraoji, stating that it was being conferred in perpetuity and as always to remain from sons to grandsons and was to be free from all taxes which were being exacted up to that time, such as Barar and Sewai. At the same time, Govind Rao executed a deed of release by which he accepted the adjustment of the amount due from the Maharao aga\nst this grant of Jagir.

These documents thus show that this Jagir was originally granted by Maharao Ramsingh, Ruler of Kotah, jointly in tl!e names of Lalaji Ram Chandra and his son, Govindraoji in lieu of the debt which the Maharao owed to them.

Subsequently, this property was treated as property of the joint family of Lalaji Ramchandra Motilal the second son of Lalaji Ramchandra, was born after this gr[llit and his name was also mutated against the J agir villages. On the death of Govindraoji, the name of his adopted son, Ganpat Raoji, was brought in, while Motilal, the uncle, managed the property on behal.f of the family.

Motilal executed a will in respect of his properties, including these villages, specifically stating that half of this Pr<?· perty belonged to Ganpatraoji, while half would belong to his adopted son, Purshottam Raoji.

After the death of Motilal, Ganpatraoji became the manager of the property and Purshottam Raoji's name was also entered against this property.

On the death of Ganpat Raoji, the name of his eldest son Chandrakant Rao was mutated while Purshottam Raoji in the capacity of the eldest member of the family, started managing the propety.

Te property thus remained in the family, being treated as jomt family property and, even during the years between 1852 ad 1868 whe!1 efforts were made by the Maharao of Kotah to dispossess this

family, the British Government had intervened to ensure that the property remained with this family, insisting that the Maharao could only resume the Jagir on repayment of the Joan in respect of which discharge had been obtained when this Jagir was conferred.

The property was thus continued to be treated as joint family property until the death of Purshottam Raoji when a questian arose as to the mutation of names of his descendants in his place. Chandra.kant Rao desired that his name alone should be shown as the holder of this Jagir and, on 22nd October, 1937, gave a statement before the Revenue Commfssioner claiming that the eldest son in the eldest branch had the right over the J agir according to the custom and usage in Rajputana and, consequently, mutation in the records should be in his name alone. A report was sent by the Revenue Commissioner and the matter was dealt with by the Maharao of Kota himself in Mehakma Khas.

The order of the Maharao on that report was passed on 22nd January, 1938.

By this Order, a direction was made that this Jagir, like all other Jagirs, should be given the status of an impartible estate and it should be given proper shape by being liable to render 'Chakri' and 'Subhchintki' to the Ruler.

It was further ordered that the Jagir will be governed by the rule of primogeniture, so that Chandra.kant Rao alone would be held to be the Jagirdar. As a re9ult, aU these eight viUages of the Saro la J agir came to be shown as the property of Chandrakant Rao alone.

The claim of the plaintiff in this suit was that the Jagir having been joint Hindu family property, the rights of the plaintiffs, who are the successors-in-interest of Purshottam Raoji, cannot be defeated by the order of the Maharao dated 22nd January, 1938 and, consequently, the appellants together with the proforma respondents who are also descendants of Purshottam Raoji are entitled to 1/2 share, whereas the other 1/2 share only can be claimed by the contesting defendants, including Chandrakant Rao who are dei; cendants of Ganpatraoji.

Both the trial Court and the High Court have held that, after the order of the Maharao of Kota dated 22nd January, 1938, this 1agir came to be governed by the rule of primogeniture, with the result that Chandrakant Rao alone was the owner of this property, while all other members of the family could only claim maintenance out of this property.

Consequently, the claim of the appe11ants for a share in these villages on partition was negatived.

It is the correctness of this decision that has been challenged before us.

Since, in this case, no effort was made on behalf of the respondents to contest the correctness of the finding given by the High Court that all these villages were joint family property and were treated as such right up to the year 1937 when Purshottam Raoji died, we need not enter into the details of the evidence on the basis

JAYYANT RAO v. CHANDRA KANT (Bhargava, J.) S4 l

of which this finding 11as been recorded.

The question that falls for decision is whether the Mahiarao of Kota by his order dated 22nd January, 1938, could validly cha, nge the nature of the property, make it impartible and governed by the rule of primogeniture when the property was already joint family property.

In deciding this question, the crucial point is that the Maharao of Kota was an independent and sovereign Ruler whose orders in his State were law.

He bad absolute power to make any orders, and the Order dated 22nd January, 1938 has, therefore, to be given the force of law which, when it was passed, could not be challenged as invalid.

Counsel for the appellants, however, urged that all orders passed by an independent and sovereign Ruler do not have the force of law.

It is only those orders which purport to lay down a law for the State which cannot be .challenged and which would remain in force even after the merger of the Kota State in India and after the enforcement of the Cqilstitution under Art. 372 of the Constitu-. tion.

His submission was that, when passing the Order dated 22nd January, 1938, the Ruler was only exercising executive powers of directing mutation of names and was not exercising any legislative powers.

The nature of the Order passed by him, however, shows that this submissiqn cannot be accepted.

No doubt, that Order was made on a report which was put up before the Maharao for deciding who should be held to be the owner of the Jagir when.

Purshottam Raoji died.

The Order shows that the Maharao tc•ol:: notice of the fact that the Sanad had been granted in the name of Lalaji Ramchandra and his eldest son Govind Rao on executing a deed of release in respect of the debt, but it added that, when the unpaid debt was "changed in the form of a Jagir and no special condition was laid down regarding it and the name of only the eldest son was written in the 'Sanad' though another brother was present there, it has to be held that the Jagir was intf\Ilded to be given on the same rules. on which the other J agirs wpre granted The Order then proceeds to take notice of the fact that, though the mutation should have been in the name of Chandrakant after the death of Ganpat Rao, a practice had developed of entering more than one person as the holders of this Jagir.

It appears that, in order to give effect to the oriITTmaJ intention that this Jagir should be governed by the same rules as all other Jagirs, lhe Maharao G proceeded to lay down that this Jagir s]lould also be impartible and should be held by the eldest member of the family in the eldest branch.

The Ruler considered it -desirable to make this Order. because it was envisaged that, "if the entire Jagir was distn"buted amongi; t all the members of the family, then e'len the name of

H 'Thikana' would disappear. It was considered desirable that this Jagir should be governed according to the custom of the States in Rajputana including Kota State under which the eldest son of the senior branch alone was entitled to hold the property.

Thereafter, the Maharao proceeded to lay down that this Jagir should be L 10 Sup CI (NP)70-9

equated with other Jagirs by making a direction that the holders of thls Jagir should a1so render 'Chakri' and should continue to do 'Subhchintki'.

Having made this direction, the Ruler then held that. since this 'Thikana' was being givQD proper shape, its custdm and status must be similar to that of all other Jagirdars in the State.

These directions given by the Ruler clearly show that, thoug4 the proceedings came to him on the basis of a report for directions as to the mutation entry to be made on the death of Purshottam Rao, he proceeded to lay down the principles wjJich were to govern this Jagir thereafter.

The Ruler decided that this Jagir should be placed on equality with all other Jagirs in the State should be

go,, rned by the same laws.

The Order thus made was clearly an exercise of legislative power by which the Ruler was competent to Jay down that, though. this Jagir had in the past been joint family property, it was to be thereafter impartible property governed by the 1 we of primogeniture and Chandra Kant Rao as the eldest member of the senior branch was to be the sole Jagirdar.

This was, therefore, a case where the Maharao exercised his powers of laying down the law with respect to tWs Qn:e single Jagir. It cannot be said that the Order passed by him was a mere executive order and did not result in exercise of his powers of making the Jaw.

In this connection, counsel for the appellants relied on the principle laid down by this Court in Rajkumar Narsingh Pratap Singh Deo v. Stare of Orissa and Another(') to canvass his submission that the Maharao, in this case, was not exercising legislative powers when he passed the Order dated 22nd January. 1938. In that case, the effect of a Sanad granted by the Ruler of Dhenkanal State had to be considered and the question arose whether the Sanad could be treated as exist\ng law within the meaning of Art. 3 72 of the Constitution.

The Court, after taking notice of previous

deisions. drew a distinction between orders made by a Ruler having the force of law and orders which may be of executive nature, and helJ :-

"The true legul position is that whenever a dispute mises as to. whether an order passed by an absolute monarch represents u leg'islative , act and continues to remain operative by virtue of cl. 4(b) of the Order, all relevant factors must be considered before the question is answered; the nature of the order, the scope and effect of its provisions, its general, setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders, these and other allied matters will have to be examined before the character of the order is judicially determined."

(I) (1964] 7 S, C, R. 11~.

On an application of these principles in that case, it was held that the Sanad in question could not be he!d to be a legislative act. In our opinion, even if these principles are applied to the case before us, it has to be held that the Order of the Maharao dated 22nd January. 1938 amounied to exercise of legislative power.

As we have already. indicated earlier, the very nature of the Order, which changes the law applicable to ihe Jagir, indicates that it was a legislative act and not a mere executive order.

The Maharao did not purport to lay down that the J agir was already governed by the rule of primogeniture; what he did was to apply the rule of primogeniture to this Jagir for future.

Such an order could only be made in exercise of his prerogative of laying down the law for the State.

The mere fact that it was laid down for one single Jagir and was not a general law applicable to others in the State is immaterial, because it does not appear that there were any other similar Jagirs which also required alteration of the. law applicable to them.

There is also nothing to show that during the period of his i:Ule, the Maharao had adopted any special procedure for promulgating the laws in his State.

The manner ii! which the. Order was passed indicates that, in this State, the Maharao considered himse1f competent to lay down the Jaw at any time he liked.

Reliance was also placed on the decision of this Court in State of Gujarat v. Vora Fiddali 'Badruddin Mithibarwala('), but that case, in our opinion, has no application at all.

In that case, the question arose whether an agreement entered into by a Ruler had the force of law. In the case before us, there is no such question of any agreement.

In deal, ng with that question, the Court relied on the following extract from a decision of the Court in a:n earlier case of The Bengal Nagpur Cotton Mills Ltd. v.

The Board of Revenue, Madhya Pradesh and Others( 2 ) :-

"It is plain that an agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law.

A law must follow the customary forms of law-making and must be expressed as a binding rule of conduct.

There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form.

It is not every indication of the will 'of the Ruler, however expressed, which amounts to a law.

An indication of the will meant to bind as a rule of conduct and. enacted with some formality either traditional or specially devised for the occasion, results in a law but not an agreement to which there are two parties, one of which is the Ruler."

Emphasis was laid by counsel on the views expressed in th!s passage that a law must follow the customary forms of law-makmg and

(I) [1964! 6 S.C.R. 461.

(2) A.l.R. 1964 S.C. 8.88

must be expressed as a binding rule of conduct In the present case, there is nothing to show that, in the State of Kota, there was any other customary form of law-making.

The Order ct 22nd January, 1938 clearly expresses the direction of the Ruler that the

Jagir must be govemed by the same customary law as other Jagirs as a binding direction which was to govern the future conduct of the holders of this Jagir.

The principle relied on, therefore, does not show that this Order of 22nd January, 1938 did not amount to a legislative act on the part of the Maharao.

Reference was also made to the decision of this Court in Major Ranjit Singh Rao Phalke v. Smt. Raja Bai Sahiba (dead) by her legal representatives & Vice Versa(') where the Court said:-

"It is now settled law that every order of the Maharaja Cl\tmot be regarded as law, particularly those which were in violation of his own Jaws."

and again repeated :-

"The position today is that every order of the Ruler cannot be regarded as Jaw but only such orders as contain some general rule of conduct and which follow a recognised procedure of Jaw-making."

In that case, the particular order of the Ruler which was questioned had beein made in contravention of one of the existing laws Of the State and it was held that such an order could not be treated as law.

In the case before us, the position is quite different.

There was no law of the Kola State which could be held to be contrary to the Order dated 22nd January, 1938. In fact, the general law governing all Jagirs in the State was the customary law under which the Jagirs were owned by the eldest member of the enior brainch, and all that this Order did was to apply the sat11e law to this Jagir also.

It is true that no special procedure of law-making was adopted by the Maharno when making this Order; but that circumstance cannot change the nature of the Order specially when there is nothing to indicate that there was any recognised procedure of Jaw-making in the Kola State at that time.

In these circumstances, we hold that the High Court was quite correct in arriving at the decision that these eight villages, at the time when the suit for partition was instituted, were irnpartible property governed by the law of primogeniture and Chandrakant Rao respondent alone had to be treated as the owner of these villages.

It, however, appears that, during the pendency of the suit, Jagirs were resumed in Rajasthan including this Jagir which stood in the name of Chandrakant Rao and cash compensation was paid in respect of it. It was urged by counsel for the appellants that,

(I) Civil Appeals Nos. 982 and 983of1964 decided on 18th July, 1967.

• D

even if the J agir was impartible and governed by the rule of primogeniture, the right, which earlier vested in. the members of the family when it was joint family property, would be exercisable when the Jagir was converted to cash and lost its status of impartible estate. It was, therefore, claimed that, after the Jagirs had been converted into cash under the Rajasthan Land Reforms and R' sumption of Jagirs Act No. VI of 1952, the appellants should have been granted a share in the compensation received by Chandrakant Rao on the basis that this property was earlier joifot Hindu family property. In the alternative, it was also urged that, even if this claim of the plaintiffs/appellants is no~ accepted, they would at least be entitled to claim a part of the compensation in lieu of their right of maintenance. These two aspects do not seem to have been considered by the trial Court even the High Court in one sentence disposed of this matter by saying that, since the appellants were only entitled to maintenance, they could not claim any share in the compensatiop money paid under the Rajasthan Act VI of 1952. In dealing with this aspect, we are handicapped by the circumstance that the suit was instituted before this Act VI of 1952 was passed, so that there was no specific pleading in this behalf by the plaintiffs/ appellants. The trial Court, therefore, ignored this aspect altogether, and even the High Court did not take into aceou.nt the effect of Act VI of 1952 in the two aspects which have been mentioned by us above.

Since, however, this an appeal against a preliJi:!inary decree in the suits and the suit is still to continue in the trial Court, we think it appropriate to direct that these questions should be )>roperly raised in the trial Court by amendment of the pleadings in the plaint, if necessary, and should be considered and decided by that Court.

It will be for that court to give a fresh decision whether the appellants are entitled to claim a share in the compensation money received in lieu of these eight villages under Rajasthan Act VI of 1952.

The result is that this appeal is dismissed, subject to the modification that the case will go back to the trial Court for deciding the question whether the plaintiffs/appellants can claim a share in the compensation money or not, as indicated above.

Costs of this appeal shall . abide the decision on this claim of the plaintiffs/ appellants to a share in the compensation money.

R.K.P.S.

Appeal dismissed.

JAYVANT RAO AND OTHERS

CHANDRA KANT RAO~

OTHERS

February 26, 1970

Constitution of India

Art. 372(1)

Kotah

Rajputana

22nd January, 1938

Kotah State

India

Art. 372

[1964] 7 S.C.R. 112

Maior Raniit Singh Rao

Raia Bal Sahiba

Rajasthan High Court

R. K. Garg

S. C. Agarwal

D. P. Singh

V. J. Francis

S. Chakravarty

D. V. Patel

Janendra Lal

B. R. Agarwala

Bhargava

High Court of Rajasthan

Lalaji Ramchandra

Govindraoji

8th April, 1838

Maharao Ramsingh

British Government

La!aji Ramchandra

Govind Rao

Jagir

Lalaji Ram Chandra

Lalaji Ramchandra Motilal

Ganpat Raoji

Motilal

Ganpatraoji

Purshottam Raoji

Chandrakant Rao

Chandra.kant Rao

22nd October, 1937

Kota

Mehakma Khas

Chandrakant Rao

Kota

Maharao of Kota

Kota State

Art. 372

Chandrakant

Ganpat Rao

Purshottam Rao

Chandra Kant Rao

Maharao

Dhenkanal State

Art. 3

cl. 4(b)

22nd January. 1938

Kola State

Maharno

Kola State

Rajasthan

18th July, 1967

Rajasthan Act VI of 1952

Rajasthan Act VI of 1952


NAGAR RICE & FLOUR MILLS & ORS. v.

N. TEEKAPPA GOWDA & BROS. & ORS.

February 27, 1970 _

[J.C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]

Rice Milling Industry (Regulation) Act, 1958 (21 of 1958)-Shifting of existing rice mill to new site-Prior permission under s. 8(3') (c) how far necessary-Cons.iderations in giving such permission--Another mill situated near new site objecting that it8 business would be adversely affected-Objection whether sustainable under Art. 19(1)(g) of Constitution- Locus standi of party making such ob; ection.

According to s. 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958, no owner of a rice mill "shall without the previous permissin of the Central Government, change the location of the whole or any p_art of that rice mill in respect of which licence has been granted under s. 6".

The lands and buildings of the appellants' rice mill in the State of Mysore were acquired under the Land Acquisition Act 1894 and the award expressly recited that the appellants were entitled to remove the machinery of the mill.

The appellants were allotted a new site by the Mysore Government. After obtaining sanction from the Tehsildar the appellant shifted their machinery to the new site. Thereafter the Director o"f Fo<id and Civil Supplies in purported exercise of the delegated powers of the Cell tral Government passed an order under s. 8(3)(c) sanctioning a change in the location of the appellants' rice mill. He overruled the objection of the respondents whose rice mill was situated near: the new site: The respondents challenged the order before the High Court in a writ petition.

The High Court having allowed the same the appellant obtained special leave and appealed to this Court. The questions that fell for consideration were: (i) whether the shifting df the appellants' rice mill tO the new site without prior permission of the Central Government as required by s. 8( 3) ( c) of the Act, was legal, and if not whether it affected the respondents' right under Art. 19(1)(g) of the Constitution; (ii) whether the order under s. 8 ( 3 )( c) was bad for the reason that it did not take into consideration the relevant factors such as mentioned in s. 5 ( 4) of the Act.

HELD: (i) Section 8(3)(c) is merely regulatory: if it was not complied with the appellants may probably be exposed to a penalty, but a competitor in the business could not seek to prevent the appe1lants from exercising their right to carry on business, because of the default, nor could the rice mill o'f the appellants be regarded as a new rice mill. C.ompetition in the trade or business may be subject to such restrictions as are permissible and arc imposed by the State, by a law enacted in the interests of the general public un.dcr Art. 19(6), but a person cannot claim indepen.

dently of such r::striction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied \Vith the statutory requirements for carryingon rice milling operations in the building on the new site.

Even assumir1g that no previ ous permission was obtained, the respondents would have no locus standi for challenging the grant of the pern; ission, because no right vested in the respondents was infringed. [851 G-H]

(ii) The considerations which are prescribed by sub-s. (4) of s. 5 only apply to the grant of a permit in respect of a new rice mill or a ilefunet

rice mill. They have no application in considering the shifting the location of an existing rice mill. In respect of a new or defunct mill a permit and a Jicence are both required ; in respect of an existing rice mill only a licence is required. The conditions prescribed by sub-s. (4) of s. 5 only apply to the grant of a permit and not a licence. Bys. 8(3) (c) it is made one of the conditions of the 1icence that the location of the rice m.ill shall not be shifted without the previous permission of the Central Government. It is true that the appropriate authority clothed with the power must consider the expediency of permitting a change of location.

But there is no statutory obligation imposed upon him to take into consideration the matters prescribed by subs. ( 4) of s. 5 in granting the permis~ sio_n to change the location. [852 E-G]

On the facts o'f the present case the permissiori granted under s. 8(3)(c) could not be said to be granted without considering the relevant circumstances.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2228 of 1969.

Appeal by special leave from the judgment and order dated

Sptember 26, 1969 of the Mysore High Court in Writ Petition No. 496 of 1969.

S. V. Gupte, S. S. Java/i, H. N. Narayan and B. Datta, for the appellants.

H. R. Gokhale, C. R. Somasekharan, H. G. Balakrishna, and P. C. Bhartari, for respondent No. 1.

The Judgment of the Court was delivered by

Shah, J.

This appeal is filed with special leave against the ju.dgment of the High Court of Mysore settiltlg aside the order dated January 20, 1969, of the Director of Food & Civil Supplies oi the State of Mysore under the Rice Milling Industry (Regulation) Act 21 o.f 1958.

The appellants established a rice mill many years ago in village Mudugoppa, DiStrict Shimoga, in the fonner Indian State of Mysore and carried on milling operations. The respondents-N. Teekappa Gowda & Bros.-established ri 1963 a rice mill in village Kelandur at a distance of about 1 t miles from the site of the appellant's mill.

A notification under the Land Acquisition Act 1894 was issued in March 1966 for compulsory acquisition of the land and buildings on the site of the appellants' rice mill for use in the Sharayathi Hydro-Electric Project.

In October 1967 an award acquiring the laind and buildings was made.

The award expressly recited that the appellants were entitled to remove the machinery of the rice mill.

The appellants in the meanwhile applied to the Special Officer for Rehabilitation o.f the State of Mysore to allot them a suitable •

- ';

"'---~---__ ,_ . "· new , site.in which heir rice.mill may be.located. 'Tue. Special Tahs1ldar for Rehabilitation sanctioned that the rice mill building may be shifted to a site in Survey No: 233 or Mudugoppa granted to the appellants by the State of Mysore.

By order dated January 20, 1969,· the Director of Food & Civil Supplies passed an order sanctioning the chang~ in the location of the appellants' rice mill from its original site to the new site "as per the provisions contained in Section'8(3) (c) of the Rice Milling Industry (Regulation) Act,

1958", and rejected the objection raised by the respondents ..

. r . . .

The respondents then moved a petition in .the High Court ... of Mysore for a direction quashing the order dated Jannary 20, 1969passed by the Director of Food & Civil Supplies on the plea that the appellant's mill was moved to.a place in the vicinity of their rice mill iii the Kelandur village n contravention of ss. 5 and 8 of the Rice Milli.ng Industry (Regulation) Act, 1958, and in conseqnence of the removal of the appellants' mill "their business was likely to . be adversely affected" .•.

The High Court held that pefmis&ion nuder s. 8 (3)(c) was a . condition precedent to the shifting of the location of the rice mill, and since the appellants did not obtain the previous permission to

shit the mill; the order of the Director was liable to be "struck down as ultra vires". In the view of the Court, by the shifting of the appellants' rice mill the respondents' busim; ss was directly affected and they had a right to challenge the legality of the order.

The High Court upheld the claim of the respondents on the sole ground that the order of the Director was made in violation of the mandatory injunction of the Rice Milling Industry (Regulation) Act 21 of-1958 and it prejudicially affected the business of the respondents as rice-millern.

A •

The. Parliament enacted the Rice Mi!ling Industry (Regulation) F Act 21 of 1958 to regulate rice milling. By s.' 3(a) a "defunct rice-mill" is defined as meaning "a rice-mill in existence at the commencement of this Act but in which rice-milling operations have not been carried on for a period exceeding one year prior ·

to such commencement". By s. 3 (b) "existing rice-mill" means "a rice mill carrying on rice-millilllg operations at the commence- G ment of this Act, and includes a rice-mil! in existence at such commencement which is not carrying on rice-milling operations but.in which rice-milling operations have been carried (Ill at any time within a period of one year . prior to such commencement".

By s. 2 ( e) ".new rice-mill'' means "a rice mill other than an existing rice mill or a defunct rice mill".

Bys. 2(f) "rice mill" . H is defined as meaning "the plant and machinery with which and the. premises, including the precincts thereof in which or in any part of which, rice-milling operatiqri.s is carried on." Bys. 5 .Provision

A is made for grant ot pennits in respect of new or defunct rice mill'.

~1 By sub-s. ( 1) of s. 5 it is provided that any person or authority may make an application to the Central Government for the grant of permit for the establishment of a new rice mill, and any owner of a defUJnct rice mii! may make a like application for the grant of a permit for re-commencing rice-milling operation in such mill.

B By sub-s. ( 3) if, on. receipt of any such application for the grant of

a permit, the Central Government is of opinion that it is necessary so to Jo for ensuring adequate supply of rice, it may, subject to the provisions of sub-s. ( 4) a1nli sub-s. ( 5) grant the permit specifying therein the period within which the mill is to be established.

Subsection ( 4) provides : c

"Before granting any petmit under sub-section (3), the Central Government shall cause a full and complete investigation to be niade in the prescribed manner ion respect of the application and shali have due regard to--

(a) the number of rice mills operating in the locality;

(b) the availability of paddy in the locality;

( c) the availability of power and water supply for the. rice mill in respect of which a permit is applied for;

( d) whether the rice mill in respect of which a permit is applied for will be of the huller type. sheller type or combined heller-huller type;

( e) Whether the functioning of the rice mill i, n respect

of which a permit is applied for would cause substantial un-employment in the locality;

(f) such other particulars as may be prescribed."

By sub-s. ( 6) a permit granted under s. 5 is effective for the period specified therein or for such extended. period as the Central Government may think fit to allow in any case.

Section 6 provides for grant of licences. Any owner of an existing ric~ mill or of a rice mill in respect of which a permit has been granted under s. 5 may make an application to t+te licensing officer for the grant of a licence for carrying on rice-milling; operations in that rice mill.

By sub-s. ( 3) of s. 6 the licensing officer is obliged to grant the licein'.ce on payment of the fee and on deposit of such sum as may be prescribed as security for due .performance of the conditions.

By sub-s. ( 4) a licence granted under s. 6 is valid for the period specified therein. and niay be renewed from time to time for such period and on payment of such fees and on conditions as may be prescribed.

Section 7 provides for revocation, suspension and amendment of .l licences.

By s. 8 restrictions are placed on rice mills.

Under sub-s. ( 1) no person or authority shall, after the commencement of the Act, establish any new rice mill except UDder and in accordallce

ith a. permit granted under s. 5.

By sub-s. (2) no owner of a

ne _mill shall,. after the commencement of tl1c Act, carry on ricemilhng opera!Ion except under and in accordance with a Jicenc<' B granted under s. 6.

By sub-s. (3), itnsofar as it is relevant it is provided: '

"No owner of a rice mil!,- { a)

{b)

(c) shall, without the previous permission of the Central Government, chanee the location of the whole or any part of the ace mill in respect of which a licence has been granted under section 6;

" D

Section 13 provides .for penalties for cuntravention or attempts to contravene or abetting the contravention of any of the provisions, inter alia, of s. 8.

Power of the Central Government to issue a permit under s. 5 and under s. 8 ( 3) ( c) to change the locatiun of rice mill is delegated to the Director of Food & Civil Supplies.

The Director of Food & Civil Supplies sanctioned, in exercise of the power under s. 8(3) (c) of the Act that the location of the rice mill of the appellants may be shifted.

The High Court declared the order invalid on the ground that the previous sanction had not been obtained.

The Court observed that "where a.n officer F granting a licence or passing ain administrative order exceeds his powers and makes an order in violation of the provision which clothes him with that power, his order is liable to be struck down'', and since s. 8 (3) ( c) contemplated gr3jllt of pennission for change of location before the plant and the rnachinery were actually shlfted to a new site. the Director of Food & Civil Supplie; had G no power to grant pennission after the machinery and plant had been shifted. •

The rice mills for the purpose of the Act were divided into three classes : defunct rice-mills, existing rice-mills and new rice-mills.

Defunct rice mills are those wnich had ceased functioning for a H period exceeding one year prior to the commencement of tlie Act; existing rice mills are th.ose which carry on rice milling operations

t the commencement of th.e Act or had carried on rice milling

A operatio.ns within one year prior to the commencement of the Act; and new rice-mills are those which are other than existing rice mills or defunct rice mills. In respect of all rice mills a licence for carrying on rice milling operations under s. 6 must be obtained.

Jn respect of a rice mill new or defunct a permit under s. 5 has first to be obtained.

No permit is required by an existing rice B mill.

Jn granting the permit the authority has to take into consideration matters which are specified in sub-s. ( 4) of s. 5. The licensing authority must on application issue a licence to an existing rice mill or a rice mill in respect of which a permit has been granted under s. 5. For change in the location of any ric~ mill in respect of which a licence has been granted under s. 6 the previous per- C mission of the Central Government is necessary under s. 8(3) (c) ..

The Parliament has by the Rice Milling Industry (Regulation) Act, 1958, prescribed limitations that an existing rice mill shall carry on busniess only after obtaining a licence and if the rice mill is to be shifted from its existing location, previous permission of th.e Central Government shall be obtained. Permission for shi.ftirtg their rice mill was obtained by the appellants from the Director of l'cxi<l & Civil Supplies. The appellants had not started rice milling operations before the sanction of the Director of Food & Civil Supplies was obta\ned.

Even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, we fail to appreciate what grievance the respondents may raise against the giant of permission by the authority permitting .the installation of machinery on a new site. The right to carry on busi, ness being a fundaiµental right under Art. 19(1) (g) of the Constitution, its exercise is subject only to the restrictions imposed by Jaw in the interests of the general public under Art. 19(6)(i).

Section 8(3) (c) is merely regulatory: if it is not complied with the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to preveint the appellants from exercising their right to carry on business, because of the de.fault, nor can the rice mill of the appellants be regard as a new rice mill.

Competition in the trade or business may be subject .to such restrictions as are permissible and are imposed by the State by a faw enacted in the interests of the general public under Art. 19 ( 6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations .in the building on the new site. Even assumin11 that no previous pennission was obtained, the respondents would have no locus standi for challen~-

ing the grant of the permission, because no right vested in the respondents was infringed.

But Mr. Gokhale for the respondents contended that in granting the permission under s. 8(3)(c) the authoritwas bound to take iillto acCO\lnt matters which govern the issue of a permit under s. 5(4) of the Act.

Counsel submitted that sub-s. (3)(c) of s. 8 was enacted with a view to ensure adequate milling facilitie; and to prevent unfair competition and on that account it is provided that when the location of an existing rice mill has to be shifted, the authority had to take into consideratiQn the jllumber ol rice mills operating in the locality; the availability of power and water supply for the rice mill in respect of which a permit is applied for; whether the functioning of the rice mill in respect of which a permit is applied for would cause substantial un-employment in the locality; and such other particulars as may prescribed.

According to counsel, siin<:e the Act was intended to regulate the carrying on of business of rice mills in the country, it was implicit ins. 8(3)(c) that the authority sanctioning the change of location ol a riee mill shall consider whether another person was by the shifting likely to be prej'udiced thereby.

This counsel says, the Director did not consider, and .GD that account the order is liable to be set aside because the right of the respondents is infringed. This argument was not advanced before the High Court, and, in our judgment, has no substance.

The considerations which are prescribed by sub-s. ( 4) of s. 5 only apply to the grant of a permit i; n respect of a new rice mill or a defunct rice mill.

They have no application in considering the shifting the location of an existing rice mill. In respect of a new or defunc~ rice mill a permit and a licence are both required : iin respect of an existing rice mil! only a licence is required.

The conditions prescribed by sub-s. ( 4) of s. 5 only apply to the grant of a permit and not to a licence.

By s. 8 (3) ( c) it is made one of the conditions of the licence that the location of the rice mill shall not be shifted without the previous permission o:

the Central Govemme11t. , Jt is true thzt the appropriate authority . clothed with the power must consider the expediC\DCY of permittb5

a 'change of location.

But there is no statutory obligation imposed upon him to take into consideration the matters prescribed by sub-s. ( 4) of s. 5 in granting the permission to change the locMion.

The appellants had been carrying on business in miJling rice for more than 30 years and the mill was by reason of the proposal ta submerge the site in the Sharawathi Hydro-Electric Project had to be shifted from its location.

The State allotted another piece of land to the appellants and did not acquiri;: their machinery and permitted erection of their rice mill building on the new location.

This was done with a view to cause minimum hardship to the appet-

!ants arising in consequence of the proposed construction of the dam resulting in submergence of their land. The State also granted penuission to the appellaints to change the location under the Rice Milling Ind:istry (Regulation) Act, 1958. The permission cannot be said to he granted without consideration of the relevant circumstanes.

The ppcal is allowed .and the petition filed by the respondent N. Teekappa Gowda & Bros. is ordered to be dismissed with costs throughout in fal'Our of the appellants.

G.C.

Appeal allowed.

NAGAR RICE & FLOUR MILLS & ORS

N. TEEKAPPA GOWDA & BROS. & ORS

February 27, 1970

C. SHAH

K. S. HEGDE

A. N. GROVER, JJ.

s. 8(3')

Art. 19(1)(g)

s. 8(3)(c)

Central Government

s. 6

Mysore Government

s. 8(3)(c)

s. 8( 3)

Art. 19(1)(g)

s. 8

s. 5

Section 8(3)(c)

Art. 19(6)

s. 5

s. 5

s. 5

s. 8(3)(c)

Mysore High Court

S. V. Gupte

S. S. Java

H. N. Narayan

B. Datta

H. R. Gokhale

C. R. Somasekharan

H. G. Balakrishna

P. C. Bhartari

Shah

High Court of Mysore

Mudugoppa

N. Teekappa Gowda & Bros.-established

Kelandur

Land Acquisition Act 1894

Sharayathi Hydro-Electric Project

State of Mysore

20, 1969

High Court ... of Mysore

Jannary 20, 1969passed

ss. 5 and 8

s. 8

Parliament

s. 3

s. 2

s. 5

s. 5

Section 6

s. 5

s. 6

s. 6

Section 7

s. 8

s. 5

s. 6

section 6

Section 13

s. 8

s. 5

s. 8

s. 8(3)

s. 8

s. 6

s. 5

s. 5

s. 5

s. 6

s. 8(3)

Art. 19(1)

Art. 19(6)(i)

Section 8(3)

Art. 19

Gokhale

s. 8(3)(c)

s. 5(4)

s. 8

s. 5

s. 5

s. 8

s. 5

N. Teekappa Gowda & Bros.


CENTURY SPINNING & MANUFACTURING COMPANY

LTD_. AND ANR. v.

THE ULHASNAGAR MlJl'UCIPAL COUNCIL AND ANR.

February 27, 1970 -

[J. C. SHAH, K. S. HEGDE AND A. .N. GROVER, JJ.J

Constitution of lndla, Art. 226-High Court's Powers---Dismissal in limine-Questions of fact-Representations by Public Body___..:.Jf enforceable ex-eontractu by a person who acts upon the rewesentations.

The appellants-companies set up their factories within an "Induttrial Area·, No octroi duty \Vas payable in respect of goods imported by the appellants into the Industrial Area for use in the manufacture of its products.

The State of Maharashtra constituted :i. Municipality for certain villages includin.g t:1e Industrial Area.

On representations n1ade by the appellants and other manufacturers, the State proclaimed the exclusion of the Industrial Area from the Municipal Jurisdiction. The Municipality made representations to the Sta:c requesting that the proclamation, be v."ithdra\\'n. agreeing to exempt the factories in the Industrial Area from payn1ent of octroi for seven years from the date of the levy. The State acceedcd to the rc,:itK'St of the ~Iunicipality. The appellants claimed to expand their nclivities relying upon the iunicipulity':; assurance an<l un!1ertaking.

The ~1aharashtra Iv!unicipalities Act \Vas enacted and the respondent-l\.1Iunicipality took over the administration of the former municipality as its sucsor. Thereafter. the re.s'pondent-Municipalitv sought to levy .Jctroi duty on the nppcllant amounting to about Rs. 15 lakhs per annum.

The appellants filed a petition under Art. 226 of the Constitution to restrain the respondent-l\1unicipality fron1 enforcing the levy o'f the Octroi.

The High Court dismissed the petition in liniine. In appeal by speci:il leaYe.

HE(D : The case must be remanded to the High Court for being readn1ittcd to its file and dealt \Vith and disposed of according to law.

The High Court n1ay. in exercise of its discretion. decline to exercise its exrra-ordinar\· '. 1risdiction under Art. 226 of the Constitution. But the discretion is judici1l: if the petitioner makes a claim 'vhich is frivolous, vexatious. or pri11u1 fncie unjust or \Vhich may not appropriately be true in a petition inVoking extraordinary jurisdiction. the Court may decline to entertain the petitiun.

But a party claiming to be aggrieved by the action of a public bod~· o:- authority on the plea that the action is unlay.ful. highhanded. arbitrary or unjltst is entitled to a hearing of its petition on the merits.

Apparentlv the petition filed by the Company did not raise any complicated questions of fuct for deterrnination, and the claim could nOt be

charnctrised ns frivolous. vexatious or unjust.

The High Court has given no reason for dismissing the petition in lilnine, and on a consideration o'[ the averments in the petition and the materials placed before the Court the appellants \1:ere entitled to have its grievance aq:ainst the action of the Municipality. which was prinuz facie unjust. tried.

Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civit suit against a public body. The questions of fact raised by the petition in this case are elementary. (858 CF]

Public bodies are as much bound as private individuals" to .carry out representations or facts and promises made by them, ret}ribg on which

other persons have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced ex-contractu by a person who acts upon the pro .. mises when the la\\· requires that a contract enforceable at law again'St a publk: body shall be in certain forn1 or be executed in the manner prescribed by statute and if the contract be not in that form the obligation may still be enforced against the body in appropriate cases, in equity, [859 DJ

If our nascent democracy is to thrive. different standards of conduct for the people and the public bodies cannot ordinarily be permitted.

A public body is not exempt from liability to carry out !ts obligation arising out of representations made by it relying upon which a citizen has altered his position to his prejdice. [860 DJ

There is undoubtedly a clear distinction between a representation of an existing fact and a representation that something \\rill be done in future.

The former may, if it amounts to a -representation as to some fact alleged at the time to be actually in existence, raise an estoppel if another person alters his position relying upon that representation. A representation that something will be done in- 'future may result in a contract,. if another person to whom it is addressed acts upon it. A representation that something will be done in future is not a representation that it is true when made.

But between a representation of a fact which is untrue and a representation express or implied-to do something in future, there is no clear anti the'ii'i.

A representation that something \Vill be done in future may involve an existing intention to act in future in the manner represented.

If the

reprsentation is acted upon by another person it may, unless 'the statute govl.!rning the person making the representation provides otherwise, result in an agreement enforceable at la\v; i'f the statute requires that the agreement shall be in a certain form, no contract may result from the representation and acting ihcreupon but the law is not powerless to raise in appropriate cases an equity against him to compel performance of the obligation arising out of his representation. [858 H859 Cl

Union of /lldia & Ors. v. Mis. Indo-Afg/w11 Agencies Ltd., [1968J 2 S.C.I>.. 366: Robertson v. :Wini.Her of Pen.\ions, [1949J I K.B. 217; f'al mouth Board Construction Co. Ltd. v. Howell, [1950J I All. E.R. 538, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2130 and 2131 of 1969.

Appeals by special leave from the judgment and order dated June 16, 19. 1969 of the Bombay High Court in Special Civil G Application No. 41 of 1969 and S.C.A. No. 1774 of 1969.

C. K. Daphtary, Suresh A. Shroff, P. C. Bhartari and 0. C.

Mathur, for the appellants (in both the appeals).

H. R. Gokhale, N. H. Gurshani and N. N. Keswani, for respondent No. 1 (in both the appeals).

B. D. Sharma and S. P. Nayar, for respondent No. 2 (in both the appeals).

856 SUPREME COURT REPOllTS

The , .; Jgme!Il.t of the Court was delivered by Civil Appeal No. 2130 of 1967

[1970] 3 S.C.ll.

Shah, J. The High Court of Bombay dismissed in limine a petition filed by the Century Spinning & Manufacturing Co. Ltd. hereinafter called 'the Company'-for the issue of a writ restraining the respondent Municipality from enforcing the provisions of the Maharashtra M:micipalities Act 40 of 1965 relathig tu the k1y, assessment, collection recovery of octroi and in particular s. l 05 and ss. 136 to 144 thereof, and from enforcing the Maharashtra Municipalities (Octroi) Rules, 1967, and from actiiig upon resolutions passed by ilie Municipal Council dated September 9, 1968 and September 13, 1968, and from levying, assessing, collecting, recovering or taking any other step uinder the Act, rules or the resolutions, and for an order restrainin~ the Municipality of Ulhasnagar from levying, assessing:, collecting any octroi on the goods imported by the Company within the limits of the Municipal Couincil for a period of 7 years from the date of its first imposition. With special leave, the Company has appealed against the order rejecting the petitiOI!..

The Company was incorporated under the Indian Companies Act, 1913. It set up its factory in 1956, within the limits of village Shahad, Ta!uka Kalyan, oin a site purchased trom the State of Bombay, and within an area known as the 'Industrial Area'.

No octroi duty was then payable in respect of goods imported by the Company into the Industrial Area for use in the manufacture of its products.

On October 30, 1959, the Government of Bombay issued a notification announcing its intention to constitute a Municipality for certain villages, including the Industrial Area.

The Company and other manufacturers who had set up their plants and factories objected to the proposed constitution of the Municipal Area.

On September 20, 1960, the State of Maharashtra (successor to the State of Bombay) published a notification constituting with effect from April 1, 1960 the Mu, nicipality including the area in which the Industrial Area was included.

Representations were then made by the Company and other manufacturers for excluding the Industrial Area from the Ulhasnagar Municipal District Area.

On April 27, 1962 the Government of Maharashtra (the new State of Maharashtra having bce.n constituted under the Bombay Reorganization Act, 1960) proclaimed that the Industrial Area be excluded from the Municipal jurisdiction.

The District Municipality then made a representation to the Uovernment of Maharashtra that the proclamation dated April 27, 1962, be withdrawn by the Government. The Municipality agreed to exempt the existing factories viz., the Company and other manufacturers whose factories were then existing in the Industrial Area from payment of octroi for a period of seven years from the date of levy of octroi and for exempting new industrial units from payment of octroi for

a similar period from the date of establishmll!lt. The Government of Mahaiashtra acceded to the request of the Municipalit)' to retain the Industrial Area within the local limits of the Municipality.

On August 24, 1963, the District Municipality passed a rcsolu tion to implement the agreement. It was resolvec! that the Municipality "agrees to give a concession to the existing factories by exempting them from the payment of octroi for a period of 7 years from the date of levy of octroi tax and by exempting new factories from the payment of the octroi tax for a period of 7 years from the date of their establishment as recommended by the Government of Maharashtra".

On October 31, 1963,. the Government of Maharashtra issued a notification withdrawing the proclamation dated April 27, 1962, and the Industrial Area became pan of. the. Ulhasnagar Municipal District. Relying upon the assurance and undertakiag given by the Municipality the Company claims that it had expanded its activities and commenced manufacturing new products by setting up addi tional plant which it would not have done "but for the cons given, assurances arid representations made and agreement arrived at on May 21, 1963".

On September 10, 1965, the Legislature of the State of Maharashtra enacted the Maharashtra Municipalities Act which repealed the Bombay District Municipal Act 3 of 1901. The notification declaring the area of the former District Municipality of Ulliasnagar into the Ulhasnagar Municipality became effective as from June 15,

1966. The Ulhasnagar Municipality took over as successor to the Ulhasnagar Distrit Municipality, the assets and the affairs of that body. On September 9, 1968 the Ulhasnagar Municipality resolved "to levy minimum rates of octroi duty as shown.in columns 4 and 6 on all items shown in Sch. I to the Rules", and by resolution dated September 13, 1968, the Municipality 'adopted with effect from January 1, 1969, the rates for the imposition of octroi duty on the goods imported for use, sale and consumption within the Municipal Council limits.

At a special meeting held on December 24, 1968, the Munici- G pal Council considered the letters writteiti by the Government of Maharashtra dated November 22, 1968 and December 10, 1968, drawing the attention of the Municipality to the circumstances in which the Industrial Area was included and retained in the local limits of the Ulhasnagar District Municipali!I and conti, n'ued to remain within the local limits of the Municipality, and "advised the H Municipality to pass a resolµtion confirming such exemption and honour the commitments of its predecessor." The Municipality ignoredthe advice arid resolved that the Government of Maharashtra be informed that the Municipality would consider afresh on L10Sup.Cl(NPJ70-10

-~:- --:·,.'.,,,..--:-'"": ',\

~· ' ~. -'. -;"'-

\ ' ~- _,: ·-,' \. 858 .. \

". ·-. SUPREME .. COURT

-------;

REPORTS . ..__:JI9_7~]1...s.c.R. '.. . ( merits-; any representation of a tax-payer fo~'exemption from pay- A " ment 'of octroi, and if any such representation was made by the factories situate in the Industrial Area, the Council.would consider the same and truce such action as it would deem fit.:·. Thereafter the Municipality sought to levy octroi duty and to recover from the Company octroi duty amounting to approximately Rs. 15 lakhs per annum. ..

 B

The Company moved a petition before the High Coun of Born- . bay under Art. 226 of the Constituti<n for the writs set out earlier seeking to restrain the Ulhasnagar Municipality from enforcing the octroi Rules. '

The High Court may; in exercise of its discretion, decline to exercise its extra-ordinary jurisdiction under Art. 226 of the Consti- Jution; But the discretion is judicial : if the petition makes a claim which is frivolous, vexatious, or prima facie unjust, or may not appropriately be tried in a petition invoking extra-ordinary jurisdic-- tion, the Coun may decline to entertain the petitiop: But a party . claiming to be aggrieved by the action ofa public body or authority

on the plea that the action is unlawful, high-handed, arbitrary or unjust, is entitled to a hearing of its petition on the merits.

Appa~, rently the petition filed by the Company did not raise 31tiy complicated questions of fact for deterinination, and the claim could not be characterised as (rivolous, vexatious or unjust. .The High Court has given no reasons for dismissing the petition in Ii mine, and cm

a consideration of the averments in the petition and the materials . placed before the Court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima facie unjust, tried. ·

The Company pleaded that the Ulhasnagar Municipality had ''.::ntered into a solemn arrangement" pot to levy octroi duty for a period of seven years from the date o~ its imposition. The evidence relating to the u, ndenaking was contained in public records. The Government of Maharashtra advised the Municipality that it was acting in violation of the terms of that undertaking.. By its resolu~ tion the Municipality declined to abide by the undertaking of its predecessor.

There. is undoubtedly a clear distinction between a representation of an existing fact and a representation that something will be done in future.

The former may, if it amounts to a representation as to some fact alleged at the time to be actually in ex.istence, raise an estoppel, if another person alters his position relying upon that representation.

A representation thatrsomething will be done in the future may result in a contract, if another person to whom it is

- -="" -

F ..

addressed acts upon it.

A representation that something will be done jn future is not a representation that it is true when made.

But between a representation of a fact which is untrue and a representation-express or implied-to do something in future, there is no clear antithesis.

A representation that something will be done •n future may involve an existing intention to act in future in the manner represented. If the representation is acted upOl) by another person it may, unless the statute governing the person making the representation provides otherwise; result in an agreement enforceable at law; if the statute requires that the agreement shall be in a certain form, no contract may result from the representation and acting thereupon but the law is not powerless to raise in appropriate cases an equity against him to compel performance of the obligation arising out of his representation.

Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relyin)( o.n which other persons have altered their position to their prejudice.

The obligation arising against an individual out of his representation amounting to a promise may be enforced ex contractu by a perso.n who acts upon the promise : when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation may be if the contract be not in that form be enforced against it in appropriate cases in equity. In Union of India & Ors. v. M/s. Indo- Afghan Agencies Ltd. ( 1) this Court held that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government.

This Court held that the following observations made by Denning, J., in Robertson v.

Minister of Pensions(') applied in Tndia :

"The Crown cannot escape by saying that estoppels do not bind the Crown for that_ doctrine has long been

exploed. Nor can the Crown escape by prayin~ in aid the doctrine of executive , necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action."

We are in this case not concerned to deal with the question whether Denning, L.J., was right in extending the rule to a different class of cases as in Falmouth Boat Construction Co. Ltd. v. Hoire/!( 3 ) where he observed at p. 542 :

"Whenever Governmellt officers in their dealings with a subject take on t'1emse1ves to assume authority in a

(!) [1968] 2 S.C.R. 366,

(2) [1949] I K.11. 2~7.

(3) [1950] All, E.R. 538.

SUPREME COURT REPORTS [ 1970] 3 s.c.R.

matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume.

He does not know, and cannot be expected to kin.ow, the .limits of their authority, and he ought not to suffer ii' they exceed it."

It may be sufficient to observe that in appeal from that judgment

(Howell v. Falmouth Boat Construction Co. Ltd.) Lord Simonds observed after referring to the observations of Denning, L.J. :

''The illegality of an act is the same whether the action has been !llisled by an assumption of authority on the llart of a govelllllment officer however high or low in the hierarchy. . . . . The question is whether the character of an act done in force of a statutory prohibition is affected by the fact that it had been induced by a misleading assumption ol authority. In my opinion the answer is clearly : No."

If our nascent democracy is to thrive different standards of conduct for the people and the public bodies ct ordinarily be permitted.

A public body is, in our judgment, not exempt from liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to his prejudice.

Mr. Gokhale appearing on behalf of the Municipality urged that the petitioin filed by the Company apparently raised questions ol fact. which . in the view of the High Court could not appropriately be tried in the exercise of the extra-ordinary jurisdiction under Art. 226.

But the High Court. has not said so, and on a review of the averments made in the petition this argument cannot be sustained.

Merely because a question of fact is raised, the High Court will ; not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive rrocess by a civil suit against a public body.. The questions o fact raised by the petition in this case are elementary.

The order passed by the High Court is set aside and the case is G remanded to the High Court with a direction that it be readmitted to the ljle and be dealt with and disposed of according to law.

The High Court will issue rule to the Municipality and the State and dispose of the petition.

We recommend that the case may be taken up for early hearing.

We had during the' pendency of the appeal._in this Court made an order restraining the levy of octroi duty.

We extend the operation of the order for a fortnight from this date to enable the

Company to move the High Court for an appropriate interim order pending hearing and disposal of the writ petition. There will be ai> order as to costs in this Court. Cos!S in the High Court will be costs in the cause.

Since we have gr; mted special leave against the order dismissing the petition, we do not deem it necessary to consider whether the order, rejecting the application for certificate was erroneous.

Civil Appeal No. 2131 of 1969 is therefore dismissed.

Y.P.

CENTURY SPINNING & MANUFACTURING COMPANY LTD. AND ANR

THE ULHASNAGAR MUNICIPAL COUNCIL AND ANR

February 27, 1970

C. SHAH

K. S. HEGDE

A. .N. GROVER, JJ

Art. 226

Art. 226

Art. 226

Suresh A. Shroff

P. C. Bhartari

. C.

Mathur

H. R. Gokhale

N. H. Gurshani

N. N. Keswani

B. D. Sharma

S. P. Nayar

Shah

High Court of Bombay

ss. 136 to 144

Shahad

State of Bombay

October 30, 1959

Government of Bombay

September 20, 1960

State of Maharashtra

State of Bombay

April 1, 1960

Ulhasnagar Municipal District

April 27, 1962

Government of Maharashtra

Bombay Reorganization Act, 1960

Uovernment of Maharashtra

Government of Mahaiashtra

August 24, 1963

31, 1963

Ulhasnagar Municipal District

May 21, 1963

10, 1965

Legislature of the State of Maharashtra

Ulliasnagar

June 15,

1966

Ulhasnagar Municipality

Ulhasnagar Distrit Municipality

September 9, 1968

September 13, 1968

January 1, 1969

December 24, 1968

Munici- G pal Council

November 22, 1968

December 10, 1968

Ulhasnagar District

High Coun of Born- . bay

Art. 226

Art. 226

Denning

[1968] 2 S.C.R. 366

Simonds

Gokhale

Art. 226