ZILEY SINGH, ETC •

. v.

REGISTRAR, CANE COOPERATIVE SOCIETIES,

LUCKNOW AND ORS.

January 20, 1972

[K. S. HEGDE, A. N. GROVER AND A. N. RAY, JJ.]

U.P. Cooperati've Socleties Act, 1.965 and Cooperc. 1ti've Societies Rules>- 1961-Election of Committee of management of a society-S. 20 confer• one \'Ot.e on. one 1nenzber-lnterpretation of Rule 40_9 by. Registrar by which each n1en1ber would cast more than one vote was againse statute-- Regi'itrar has no power under RuJe 409 to issue such circular.

Under s. 32 of the U.P. Cooperative Societies Act, 1965 the business to be conducted at the annual general meeting of a society includes inter alia election of the committee of management of the sochty. Under Rule 409 of the Act namely the Cooperative Societies Rules, 1967 a cooperative society may, for the purpose of the election of the Committee of management, with the previous sanction of the Registrar of Cooperative Societies

(a) divide its membership into different groups on territorial or any other rational basis, and (b) also specify the number or proportion of the members of the committee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee of management. On S 1'Jovember 1969' the Registrar issued a circular interpreting Rule 409 and laid clown the principle that "all lhe members of the general body" of the cootive society would "exercise their right of vote in filling all the seats of Clected Directors". Tho eledtions in the cooperative societies .concerned in tbe present appeals were held according. to the aforesaid directions . given by the Registrar. The elections were challenged and ,.t asid.e iti proceedings. under the Act. On the question whether the cirCular lntetj>ieting · Rule 409 issued by the Registrar was valid, this Court, ·

HELD : Under role 409 the principal matters to be kept in the foietront are these.

First, the society will divide the coilstituencies w territorial basis or any other rational . basis.

By territorial basis is. meant territory where the member will residi<. 'Residence is. tbOrefore 'the relative requirement of territorial basis. lf any other rational basis like occupation

or vncatinn is determined to be the ballis of a cilmtituen.oy the persoos falling within the constituency will satisfy that test. Secondly, the society will specify the proportion of members of the committee in such a manner that different areas or interests may get suitable representation. The. inherent idea is that such areas or interest will obtain representation. If mem bership is on territorial basis the different areas will get representatiOn according to the interest of such territories. Again, if '!C'fupltional " professional tests are . created for dividing groups such interests willlhhave to be given suitable represeritation. Representation is therefore wi reference to areas or interets. Judged by lite,. principles the impeached circular of the Registrar suffered from the vice of giving the' members the right of casting vote in constituencies to which they did not belong. This

strikes at tire ba!ic rOot of the fight of representation. This., also reads as under the principle of one member one vote which is , made a role elf law in the Act. [155 E-0)

The words 'affairs of the society' in s. 20 cannot be equated with tho A constituencies to give each member a right to vote for each constituency.

That would defeat the purpose of s. 20 and rule 409. The basic idea of representation for each constituency depends on the mandate of the respective constituency and not ofother constituencies. That is why s. 20 of tho Act speaks of one member having one vote irrespective of shareholding.

It means equality of votes of members. [155 HJ

The impeached circular of the Registrar was illegal and unwarranted.

B The Registrar has no power to interpret rule 409. The Registrar has equally no power to express view with regard to the conduct of the election and regulate the voting rights by giving members more than one vote. The society is to frame rules for elections. The rules and the bye-laws cannot be in derogation of the statute and statutory rules. At an election of members of the committee of managemeni one member will have only one vote for the constituency to which he belongs. [156 E] c

The result was that the elections which were held following the circular <>f the Registrar were bad, •

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1533 of .. l971. ..

Appeal by special leave from the judgment dated September D 18, 1971 of the S.D.0./ Arbitrator, Muza1farnagar . in Election Petition No. 140 of 1970. ·

AND

Civil Appeals Nos. 1797 and 1798 ol 1971. Appeals by special leave from the judgments dated September 18, 1971 of the E District Magistrate/Registrar, Co-operative Societie8, Saharanpur in AP{>Cals Nos. 6 and 8 of 1971 wider s. 98(i)(h) U.P. Cooperative Societies Act.

AND Special Leave Petition (Civil) No. 3254 of 1971

From the judgment dated September 16, 1971 of the Registrar, Co-operative Societies/District Magistrate Saharanpur in Appeal No. 5 of 1971 under section 98 ( i) (h) CO-Operative Societies Act.)

J. P. Goyal and V. C. Partishar, for the appellants (in C.As.

G Nos. '1533 and 1797 of 1971) and the petitioners (in S.L.P. No. 3268 of 1971)

R. K. Garg, S .. C. Agrawal and R. K. Jain, for the appellants (in C.A. No. 1798 of 1971) and the Petitio11, ers (in S.L.P. No. 3254 ot 1971) ff C. B. Agarwal and P. P. Juneja, lor respondents Nos. 7, 8 and 11 to 13 (in C.A. 1533 of 1971) ·

0. P. Rana, for respondents Nos. 7 and 12 (in C.A. No. 1797 of 1972) and respondent No. 7 (in C.A. No. 1798 of 1971).

M. C. Setalvad, R. K. Garg, S. C. Agarwal and R. K. Jain, for the intervener.

The Judgment of. the Court was delivered by

Ray, J. These three appeals are by special leave.

Civil Appeal No. 1533(N) of 1971 is by special leave against the judg• ment dated 18 September, 1971 of the Arbitrator setting aside the election of the Management Committee of the Co-operative Cane Development Union, hamli in an election petition filed under rule c 229(2) of the Co-operative Societies Rules, 1967 framed under the Uttar Pradesh Co-<JP.erative Societies Act, 1965. Civil Appeal No. 1797 of 1971 is by special leave against the order of the District Magistrate and Registrar, Co-operative Societies Sharanpur dismissing an appeal filed under sect'ion 98(i)(h) of the U.P. Cooperative Societies Act, 1965 against an order of the Arbitrator under section 70 and 71 of the U.P. Co-operative Societies Act.

D 1965 setting aside the election of the Sahkari Ganna Vikas Samiti Ltd., Iqbalpur, District Saharanpur.

Civil Appeal No. 1798 of 1971 is against the order and judgmt dated 16 September,.· 1971 of the District Magistrate, Saharanpur dismissing an appeal under section 98(i)(h) of the U.P, Co-operative Societies Act, ·.1965 against the order of the Arbitrator under sections.70 and 71 of the E U.P. Co-operative Societies Act, 1965 setting as, ide the election of the Sahkari Ganna Vikas Smiiiti Ltd., Lmwar, DiStrict Saharanpur. Special Leave Petition (Civil) No. 3254 of 1971 is for leave to appeal against.the order of the Registrar, Co-operative Societies in appeal under section 98(i)(h) against the order of the Arbitrator under sections 70 and 71 of the U.P. Co-operative Socies Act, F 1965 setting aside the election of Sahkari Ganna Vikas Samiti, Sarsawa. Special. Leave Petition (Civil) No. 3268 of 1971 ill for leave to appeal against the order of th~ District Aulhority. Bui3ndshahr setting aside the election of the Committee of Management of the Co-operative Cane Development Union Ltd. on an application under rule 229 of the U.P. Co-operative Societies Rules, 1968.

G These matters raise a common question. These Co-operative Societies held their annual general meeting under the provisions of section 32 of the Uttar Pradesh CcH>perative Societies Act, 1965 (hereinafter called the Act). A( the general meetings the members of the Committee of Management of the Society were elected by members of the Society.

The Registrar of the U.P.

H Co-operative Societies issued a circular dated S NCl'l'ember, 1969 interpming rule 409. of the U.P. Co-operative Societies Rules, 1968 (hereinafter called the Rules) and laid down the principle that all th~ members of the general body. ''of the Co-operative

Society would" exercise their right of vote in filling all the seats A of elected Directors." The ques1fon in the present appeals is whether the Registrar had power to issue the circular interpreting rule 409 and secondly whether that in~rpretation is correct in terms of the Act and jhe Rules.

The Act deals with Co-operative Societies and inter alia their B members and their Committee of Management. The relevant sections for the purpose of present appeals and special leave petitions are sections 20, 29 and 32 of the Act. Section 20 of the Act speaks of vote of members. Under that section, a member of a Co-operative Society shall notwithstanding the quantum of his interest in the capital of the Society have one vote in the affairs of the Society. There are four provisos to section 20. Proviso (a) C deals with nominal or associate members who have no right of vote. Proviso (b) deals with a co-operative society, the State

Warhousing Corporation or a body corporate being a member of such society in which case each delegate of such co-operative society, State Warehous_ing Corporation or body corporate shall have one vote. Proviso (c) deals with the State Government or the [) Central Government being a member of such society in which case a nominee of the State Government or the Central Government shall have one vote. Proviso (d) deals with a group of members or any class of members partaking in the affairs of the society through a delegate or delegates each delegate having one vote.

Section 29 of the Act deals with the Committee of Manage- E men!..

The managemeJ)t of every co-operative society shall vest in a committee of rnruiagement. The tertn of the election members of the committee of. ml!nagement shall be such as may be provided in the rules and the bye-laws of the society. After the expliy of the term the co-operative society_ shall at the annual gel)eral meeting elect members 'for the committee of management as provided F in section 32(i)(b) of the Act. If a society fails to elect members for the committee. of manage1nent the Registrar shall ca11 upon the society by order in _writing to elect such members witl)in hree months from the date of tlfe communication of the order. If the society still fails to elect the memb.ers for the committee of management, the Registrar may himself nominate such persons as under the rules and the bye-Jaws are qualified for being elected as mem- G bers of the committee of management. Within six months from the date of nomination made by the Registrar, the Registrar sh.all call a general meeting for electing members of the committee of management.

Section 32 of the Act speaks of annual general meeting which H shall be held ooce in 'a co-operative year.

A co, operative year means the year commencing the first day of July and ending on the 30th June of next following.

One of the purposes Of the annual

-" general meeting is election of the members of the committee of management in accordance with the provisions of the rules and of the bye-laws of the society.

Rule 409 is as,, follows :-

"For the pur_J?oses of election to the membership of the committee of management a co-operative society may, with the previous sanction of the Registrar-

( a) divide its membership into different groups on territorial or any other rational basis, and

(b) also specify the number or proportion of the member of the committee of management in such a manner that different areas or interests, as the case may be, in the soclety may, as far as may be, get suitable representation on the committee or management."

In order to appreciate as to how rule 409 comes up for consideration in the present case it is necessary to refer to facts in Civil Appeal No. ,1533 (N) of 1971 as a typical case.

The Shamli Cane Development Union Ltd., Shammli. U.P. was registered under the Co-operative Societies Act, 1912, It was deemed to be registered under the Act. The society had its E bye-laws with regard to the formation of the committee of management and its election including the election of the Chairman and the Vice-Chairman.

The bye-laws provided for a committee of management consisting of. 14 members. The committee of management elects a Chairman and a Vice-Chairman. The delegates constituting the general body of the society are divided into p 14 constituencies.

Each constituency elects one Director.

The delegates of the members of the society in a constituency elect a member of each single member constituency. The 14 members of the committee are elected on that basis whereby each delegate of each constituency exercises one vote for electing a member of that constituency.

G The Secretary of the society fixed 13 October. 1970 as the date for filing the nomination for the office of the committee of management. 17 October, 1970 was the date for scrutiny of nomination papers. 19 October, 1970 was the date for withdrawal of nomination papers. 28 October, 1970 was the date of poll. By a letter dated 14 October, 1970 the Registrar, Co- .

II operative Societies directed t.'iat "the election of the members of the managing committee shall be done by all the representatives of the area of the society and not by the representatives of the related constituencies alone.

This means that every representative ll-L864Sup.Cl/72 .

shall have as many votes as the members are to be elected":· Ill A short, the Registrar's. inlerpretation of rule 409 as well as 1he letter stated that each delegate would vote for 14 members of the committee of management and thus each delegate would exercise 14 votes.

The rival contentions which.fall for determination are whether I the right of vote for eleetion of a member of the coiiuni.ttee ot mana, gement is confined to the delegates of the members of that particular constituency or whether a delegate would have the right to vote for all the constituencies constituting the committee of management.

As to the power of the Registrar. to interpret rule 409 it will C appear that the rule does not confer any power on the Registrar to interpret or to express views to guide the lights of members .to vote at the annual general meeting for the purposes of election cl the committee of management. On the contrary, under rule 409 the Co-operative Society may with the previous .sanction of the Registrar ( i) divide its membership into different groups on . tertj; 0 to rial or any other rational basis and .(ii) also specify the numbeJ or propoition of the members of the committee of management in such a manner that dilferent areas or interests, as the case may be, in the society may, as far.as may be, get suilable representatioo on the committee of management. Therefore, under rule 409 a co-operative society can divide its membership into different a groups on territorial or any other rational bru; is for. the pUfP95C' of election of the mem.Qers of the committee. Tbc rule also cmt•

powers the . society to apportion the membership of the committot of management amongst .different groups intQ. which the member• ship is divided. The number or proportion of members of the committee of management will have to be apportioned in such a ., manner that the dilferent areas or interests into which the meni. bership of the society are .. divided may pbtain suitable represcn• Ill lion on the committee of management. The entire purpose , of division of membership into different groups and specifying :luitable representation of such group on the committee .of .. manage, ment is to emphasise the right of the particular group to send its representative to the committee. To illustrate if. a . !Ociety is cl divided into 14 separate groups on a territorial basis and one membciit of the cpmmittee cl management is allotted to' each group

and :if delegates of one group have the right to cast 14 .voti!S t'No consequences will follow.

First, the right of cho0$ittg a 'rq!i'esentative 'Of tfie constituency will be! 'not confined to that• co!IM$. tuency but will be enlarged to 91Jtiliders in other des. K Secondly; a member of the committee from one constituency nmy be elected by a majority of votes. , f'ifnii delegates of other OOrJ.su:. tuencies. If delegares residing otiide a' territorial c6ilstitllency

. ZILBY SINGH v. CANB COOPBRATIVB SOCIBTIBS (Ray, I.) 155

A take part at the election for member of a committee from territorial constituency within which he is not a resident it will not only amollll't to enlarging the right of representation be)'ond one'• territorial basis but also 'deny the delegate. within the constituency the right of electing their own representative.

B It Wllfi s!IJ.d on behalf of the appellants that section 20 of the Act speaks of a member of the co-operative society having one vote in tlie affairs of the society with the result that each member is entitled to exercise as many votes as the members of the committee of management. Accent was placed on the words 'affairs

of the society' and it was said that the constitution of the come mittee of management was one of the principal affairs of the society and therefore each member would bl:: entitle9. to cast as many votes as the strength of the committee .ol' management. The fallacy lies in overlooking the significant words in secticn 20 !Jf the Act that a member shall have one vote. It may also be noticed that if each member exercises by way of illustration 14 votes in regard to 14 members of the committee each member shall be.exercising D 14 votes in the affairs of the society.

Under rule 409 the principal matters to be kept in the forefront are these.

First, the society will divide the constituencies on territorial basis or any other rational basis. By territorial basis is meant territory where. the member will reside.

Residence is E thetefore the relative requirement of territorial basis. If any other rational basis like .occupation or vocation is determined to be the .basis of a constituency the persons falling within the constituenoy .will satisfy that test.

Secondly, the society will specify the proportion af members of the committee in such a manner that different areas or interests may get suitable representation.

The inherent idea is that such areas or interests will obtain repre- F enttion. ,, Jf bership is on territorial basis the different areas wlll get' representation according to .the interest of such territories.

Again, if occu1?ational or vocational or professional tests are

reated . for diV1d~ groups such interests will have to be given $Uitable rePreseJ\tation. Representation is therefore with reference to areas or interests. Judged by these principles the impeached G circl!lar of the Registrar suffers from the vice of giving the members the ri.dit of •casting vote in constituencies to which they do not belong. This strikes at the basic root of right of representation. This also reads as under the principle of one member one vote which is made into a rule of law in the Act. [15 5 E-G]

The words 'affairs of the society' cannot be equated with the H Constituencies to give each member a right to vote for each constituency.

That would defeat the purpose of section 20 and rule

409. Tho basic idea of a representative for each constituency

depends on the mandate of the respective COllStituency and not A of other constituencies. That.is why section 20 of the. Act speaks of one member having one vote irre>pective of shardwlding. It means equality of votes of members.

The constitution of the committee of management is indisputably one of the affairs of the society. If each member exercises B franchise with respect to the representation from his constituency he is not in any manner prevented from having a right to partake in the affairs of the society through a member elected from the constituency.

Some reliance was placed by counsel for the appellants on rule 105 in support of the contention that every member would C have one vote for each member of the committee of management.

Rule 105 occurs in Chapter VII relating to meetings and speaks of matters before a committee being decided by a majority of vobls of the members present. That rule obviously has no reference to election but only to passing of resolution by majority at meetings.

It is obvious that members of the committee of management will D have the right to vote at all matters at the meeting and matters will be decided by a majority of votes.

The impeached circular of the Registrar is illegal and unwarranted Registrar has no power to iDterptet rule 409. The Registrar has equally no power to eKpreSS view with regard to conduct of the election and regulate the V01ing rights by giving the members _ K more than one vote. The society. is to frame rules •for lections.

Ruley require the sanction of the Registrar. Tiie rules and the bye-laws cannot be in derogatiQn of the statute and statutory rules. At an election of members of the committee of management one member will have only one vote for the constituency to which he belongs.

The result is that the elections which were held follbwing the circular of the Registrar are bad.

For these reasons the three appeals fail and are dismissed.

The two 'special leave petitions are illso dismissed. Parties will pay and bear their own costs.

G.C.

Appeals dismissed.

ZILEY SINGH, ETC

K. S. HEGDE

A. N. GROVER

A. N. RAY, JJ.

S. 20

s. 32

Cooperative Societies Act, 1965

S 1

s. 20

s. 20

s. 20

s. 98(i)(h)

Cooperative Societies Act

section 98

CO-Operative Societies Act

J. P. Goyal

V. C. Partishar

R. K. Garg

S .. C. Agrawal

R. K. Jain

C. B. Agarwal

P. P. Juneja

P. Rana

M. C. Setalvad

R. K. Garg

S. C. Agarwal

R. K. Jain

Ray

Co-operative Societies Rules, 1967

Societies Act, 1965

Cooperative Societies Act, 1965

section 70 and 71

Co-operative Societies Act

section 98(i)(h)

Co-operative Societies Act

Co-operative Societies Act, 1965

section 98(i)(h)

sections 70 and 71

Co-operative Socies Act

Co-operative Societies Rules, 1968

section 32

Societies Act, 1965

Committee of Management of the Society

Co-operative Societies Rules, 1968

sections 20, 29 and 32

Section 20

section 20

State

Warhousing Corporation

Central Government

Section 29

section 32(i)(b)

Section 32

Shamli Cane Development Union Ltd.

Co-operative Societies Act, 1912

13 October. 1970

17 October, 1970

19 October, 1970

28 October, 1970

section 20

section 20

section 20


BALKISllANDAS & 1.Z OTHERS

STATE BANK OF HYDERAUAD AND ANR.

JalfUary 20, 1972

[K. S. HEGDE, P. JAGANMOHAN RBDDY AND D. 0. PALBKAR, JJ.]

Hyderabad Jaglrdars Debt Settlement Act, 1952-S. 11 and 25-IU scope-Mortgage executed In favour of Bank-Whethtr extinguished by virtue of S. 11 and 25 of the Act,

Respondent I, a bank, filed a suit against appellants Nos. 1 to 4, mem hers of a joint family, for the recovery cif Rs. 5 lakbs on the basis of a mortgage deed executed in favour of the bank, by securing certain im movable properties without possession.

Defendant No. 5 became a guarantor for the amount borrowed and executed a separate guarantee in favour of the Bank. The appellants, who were Iagirdars, had money transactions with the bank prior to the execution of the mortgage on three separate accounts. The accounts were however, closed by /'ayment from the amount of Rs. 5 lakhs advanced to them on the basis o the Mortgage deed .. As the defendants failed to pay the amounts which fell due under the terms of the mortgage, a suit was filed against all the ddfendants. The firm and the 5th defendant remained ex-parte, but defendants Nos. 2-4 defended the suit. The trial court, decred the suit against the appell"'!ts and the High Court also confirmed the Judgment and decree of the. trial court. In an appeal by certificate, two main points were urged:-(!) that the suit debts were extinguished under S. 22 of the Hyderabad Jagirdars Debt Settlement Act 1952, inasmuch as no application was presented by

the Bank u/s. 11 of the Act before the 30th June, 1953 which was the notified date and (2) the civil court had no jurisdiction to lry the suit be

cause u/s 25 of the Act, all suits and proceedings for the recovery of a debt from a Jagirdar had to be transferred to the Jagirdars Debt Settlement Board, which alone bad jurisdiction to oettlo it. It was contended on behalf of the appellants that the mortgage executed by the appellants did not create any new debt but merely secured the payment of pnor debts which was the balance due to the Bank on the 3 accounts as on the date of the mortgage which debts were pending debts within the meaning of S. 25(1).

Dimiisaina the appeal,

HELD : (i) From the terms of the mortgage deed, it was clear that the debt of lb. 5 lalcb1 was a freth debt created by and secured thereunder with intereot that may become due from the date of the mortgage and that there was no 'lu .. tlon of the mortgage deed having been executed as a aettlement of pnor debts so as to attract the provisions of Sections 11 and 25 of the Act. [163 Al

(ii) The eipression 'pending' in Section 25 related to proceedinp which were pending on the notified date and.could not mean any pl-oceedings which were instit)lted after such date. In the facts and circumstances of the case the: del>.t created by !00 mortgaae deed is a fresh debt and ff therefore, the ~1oviaions of s. II and 2S are not attracted. [161 El

Joint ftzmi/Y .o(Mukund Doss v. Stat• Bank of Hyd1rabad, {1971) 2 S.C.R. 136, followed.

(iii) Once the proviliom of S. 11 and 25 wore shown to be not appli- A .. cable, the civil court had jurisdiction to try the suit and the decree granted by the Trial Court and confirmed by the Appellate Gour! did not suffer from. any infirmity. [163 HJ

Slllle of JltJjasthan v. Mukund Chand, t1964] 6 S.C.R. 903, and Stale Bank of Hydmzbad v. Mukunda Rafa Bhagwandaa & Ors., 1963

(II) Aildhra Weekly Reporter 14, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 547 of 1967.

Appeal from the judgment and decree dated November 14, 1966 of the Andhra Pradesh High Court in Original Side Appeal No. 9 of 1959.

A. R. Somnath Iyer, R. K. P. Shankardass, R. V. Ramarao and P. K. Pillai, for the appellants. ·

S. V. Gupte, A. V. Rangam and A. Subhashini, for respondent No. 1.

The Judgment of the Court was delivered by

P. Jaganmoban Reddy, J. This appeal is by certificate against the judgment of the Andhra Pradesh High Court which confirmed the judgment and decree of a single Judge of the Original _Side of that Court. The first respondent Blink filed a suit against the appellants-defendants Nos. 1-4 who are members E of the joint family finn, for tlie recovery o( a sum of I.G.

Rs. 5,00,000/- on the basis of a mortgage deed executed by them in favour or the Bank by securing certain immovable properties without possession. As a further security, the first defendant on behalf of the joint family, caused the 5th defendant-respondent 2 to guarantee the amount borrowed from the Bank and accordingly he executed a promissory note in favour of the 5th defendant on F 26-9-1953 for Rs. 5;00,000/- which he in turn endorsed in favour of the Bank. The 5th defendant also executed a separate guarantee in favour of the said Bani>. on the same date. As the defendants failed to pay the amounts which fell due under .the terms of the mortgage, a suit was filed as aforesaid against all the defendants. The 1st defendant who was the manager and Karta of the G joint family remained ex-parte. The 5th defendant though he appeared in the Court, did not file any written statement and chose to remain ex-parte throughout. Defendants 2-4 alone filed written statements resisting the suit on several pleas, two of which alone may be noticed for the purposes of this appeal, namely, (i) that the suit debts were extinguished under section 22 of. the Hyderabad Jagirdars Debt Settlement Act 1952 (hereinafter called 'the Act'); inasmuch as no application was presented by the Bank under section 11 of. the Act before 30th June 1953 which was the notified

A date; and (ii) the Civil Court had no jurisdiction to try the suit as under section 25 of the Act all suits and proceedings for the recovery of a debt due from a Jagirdar have to be transferred to the Jagirdars Debt Settlement Board which alone had jursidiction to settle it. It appears that the appellants who it is admitted arc Jagirdars had money transactions with the Bank prior to the exc- B cution of the mortgage on three separate accounts.

Ultimately these accounts were closed by payment from the amount of Rs. 5,00,000/- advanced to them by the Bank on a cash credit account secured by the aforesaid mortgage deed. It was contended that as the amounts due on the three earlier accounts to the Bank were debts which were pending on the date of the Act and c since these loans were secured by the mortgage, the provisions of the Act are applicable and the debts got extinguished as the Bank had not applied under section 11 before 30-6-1953 to refer them for seitlement by the Jagirdars Debt Settlement Board.

The trial court on the evidence held tliat the amounts due from the appellants on the three old accounts were Rs. 5,00,000/- made D up of (a)· Rs. 2,59,436-0-0 on the L.B.D.

Account; (b) Rs. 2,05,358-8-8 on Overdraft Accoun'I: (Clean) Ledger No.

14) Dwarkadas Mukandas;

(c) Rs. 35,205-7-4 on Overdraft Account (Clean) (Ledger No. 2) Dwarkadas Mukundas. It further held that at the request of the appellants they were granted by the first respondent a cash credit to the extent of Rs. 5,00,000/- E and in compliance with the terms of sanction the appellants executed a mortgage deed (Ex. P-10) in favour of the Bank; that from the fresh cash credit account which was opened on 8-8-1953 in the name of the appellant firm with the Bank, the appellants cleared the earlier liabilities under the three accounts mentioned a bcve which were closed and that on the same date the Bank F returned to the appellants thirteen bills duly endorsed in favour of the appellant firm. On these facts, the trial court held lhat as the 1st respondent was a Scheduled Bank, the provisions of the Act would not be applicable lfy virtue of section 3 ( v) and accordingly the Civil Court would have jurisdiction to entertain the suit. The suit was, therefore, decreed against the appellants and the second respandent, :against which an original side appeal was G filed in the High Court.

By the time the appeal came up for hearing a Full Bench of the Hyderabad High Court in the case of State Bank of Hyderabad v. Mukundas Raja Bhilgwa11das and Sons and Ors.,(') held that under section 25(1) of theAct, ill

suits; appeals, applications for exeeution and proceedings othet than revisions, taken before the Courts in regard to debts for which applications under section 11 of that Act could be made to the H Board and involve the questions as to the status of the Debtor and the total extent of his debts; are liable to be transferred if they

(1) (!963) (Il) Andhra Weekly Reporter, 147.

160 SUl'RB)oill COURT REPORTS

[1972] 3 S.C.R.

were P.ending on the date notified under section 11, i.e. 30-6-1953.

A But, 1f they were filed after that date, they are liable to be transferred only on notice by the Board by reason of an application under section 11 or statement under section 21 of the Act. All othet suits, appeals, applications for execution or other proceedings, including cases relating to debts incurred subsequent to the notified date are clearly beyond the purvisw of section 25 and B are not liable to be transferred to the Board, as the Board itself cannot deal with such suits or proceedings because of the liinitations placed in the Act. What is meant by the expression 'pending' in section 25 ( 1) was interpreted as pending on the notified date. ln view of this decision, the questions that were urged before C the appellate court were whether the debt was a post-notification debt or a pre-notification debt, namely, whether it was contracted after 30-6-1953 or prior to that date. If it was a pre-notification debt, the said debt would be extinguished by virtue of ection 22 ·· of the Act. Even if it was a post-notification debt, it was urged that the civil court would not have jurisdiction under section 25 D notwithstanding the judgment of the Full Bench of the Andhra Pradesh High Court referred to above. Further, section 3 of the Act was also challenged as ultra vires of Article 14 of the Constitution of India on the application of the decision.of the Supreme Court in thi;_§tate of Rpjasthan v. Mukand Chand. (1 ) It was held by the B_ench that the drawing of money in the new account and the payment into the old accounts had discharged the old E debts which could not form the basis of a suit ap; ainst the defendants for recovery of the said amounts.

Accordingly, following the Full Bench judgment, it was held that the Civil Court had jurisdiction to entertain the suit as the debt was a post-notification debt and in this view confirmed the judgment and decree of the trial court.

F In this appeal on the reasoning of the Court in Mukandchand's case(') the provisions of seotion 3 exempting Scheduled Banks frcm the application of the provisions of the Act equally offend Article 14 as was section 2(e) of the Rajasthan Act which was analogous so that the 1st respolldent's debts to a Jagirdar are liable to be challenged under any of the provisions of the Act like Q those of any pther creditor to whom section 3 was not made applicable.

Before dealing with the contentions raised before us, it is necessary to state that as a consequence of the abolition of Jagirs by the Hyderabad (Abolition of Jagirs Regulation) 1358 Fasli (1949 A.D.) and the Hyderabad Jagirs (Commutation Regulation) 1359 F (1950 A.D.) passed on 25-1-1950, the re- 8 sources of the Jagirdars were greately affected and as a consequence the creditors of those J agirdars were also faced with a

BALKISHAN v. STAT!! liANK (laganmohan Reddy, J.)

!GI

difficult situation which affected their prospects of .recovering the loans.

It, therefore, becallle necessary to enact legislation to provide for this continge.ncy. It was in this background that the Act was passed which incorporated the provisions analogous to the Bombay Agricultural Debtors Relief Act 1947.

Under the scheme of the Act a Debt Settlement Board was created and the creditors who had claims against the erstwhile Jagirdars were required under section 11 to make application within the notified date, which as we have earlier stated, was 30-6-53, for settlement of their debts. This court had in another case between the same parties-It. Family of Mukund Das Raja Bhagwan Dass & Sons

etc. v. Staie Bank of Hyderabad,(') to which one of us was a party ( Hegde J), considered the scope and ambit of the Act and it is, therefore, unnecessary for us again to traverse the same ground. In th; tt case a similar question as that which falls for determination in this case was considered, namely, what are the conditions for the applicability of section 25 of the Act which provide for transfer of pending suits, appeals, applications and proceedings to the Board and deprive the civil courts of jurisdictio,1 in respect of debts which were the subject-matter of these proceedings. In that case tiledecision of the Full Bench of the Andhra Pradesh High Court to which reference has been made earlier, was also considered and its conclusion tllat tile expression 'pending' in sec. 25 relates to proceedings which were pending on the notified date and could not take in any proceedings. which came to be instituted after such date was approved. After examining the scheme and the several relevant provisions of. the Act it was held that the suit or proceedings must be pending on the notified date and could not take in any proceedings which came to be instituted after such date, and that they must be in respect of a debt with regard to which a Jagirdar or a creditor could make an application to tile Board on or before the notified date. Thus, only those debts which were due on or before the notified date from a debtor or in respect of which any proceedings were pending in any Court or ore the Board could be the -subject-matter of the settlement by the Board.. In that case the suit was filed by the respondent Bank on July 1956 against the appellant for the recovery of Rs. 40,000/- on account of cash credit account opened by the appellant with the respondent. The suit was decreed and in 1959 the Bank filed an execution petition for executing the decree. It was urged that the execution petition should be transferred to the J agirdars Debt. Settlement Board under section 25 of the Act. While negativing this contention, Grover J, observed at page 142 :-

"In our judgment the High Court came to the correct couclilsion that the expression 'pending' in s. 25 ( 1)

must relate to proceedings which were pending on the notified date and could not take m any proceedings which came to be instituted after such date. The other condition for the applicability of s. 25 was that the suit .or other proceedings must be in respect of a debt with regard to which a Jagirdar or the creditor could make an application to the Board on or before the date which the Government had notified for settlement of debts due by the Jagirdar. A close examination of s. 22 puts the matter beyond controversy. If no application had been made under s. 11 within the period specified therein or for recording a 'setUement made under s. 15 every debt due by the debtor was to stand extiillguished.

In a case of the present kind a debt would have stood extinguished if no application had been made under s. 11. within the specified period. Thus the material date would be the one notified It' the Government under s. 11 'and only those debts which were due on or before that date from a debtor or in respect of which any proceedings were pending in a court or before the Board would be the subject-matter of settlement by the Board".

In view of this legal position, on behalf of the appellant it is urged that the mortgage executed by the appellants did not create any new debt but merely secured the payment of prior debts which

wa~ the balance due to the Bank on the 3 accounts as on the date

of the mortgage which debts were pending debts within the mean- E ing of ~. 25 ( 1). On this basis, it is contended that as no application was made under s. 11 in respect of the prior debts, the debts became extinguished and accordingly the mortgage deed lacked consideration to make it enforceable. Apart from the f:ict that both the courts on the evidence and on an interpretation of the mortgage deed, held that the mortgage transaction was in respect F of a fresh loan advanced to the appellants under that deed, no plea that the debt was not supported by consideration or that the earlier debts had been extinguished was either raised before the trial court or before the appellate .court. The learned advocate, however, referred us to prayer in para 9 of the written statement in which a plea was taken that the suit is not maintainable and G that "the plaintiff ought to have submitted its claim before the Debts Settlement Board". This plea is general in character and does not indicate that the suit is liable to be dismissed as the mortgage is unsupported by consideration. There was also neither an is.•ue in tire trial court nor has any ground been taken in the Memo of Appeal though as many as 75 grounds were urged agairist the judgment of the trial court.

We cannot, therefore, permit the H appellant to raise any contention based on the mortgage being unenforceable for want of consideration for the first time in this Court.

A A perusal of the terms of , the mortgage deed clearly justifies the conclusions that the loan of Rs. 5,00,000/- was a fresh debt created by the mortgage deed. There is unimpeachable evidence to show, and this bas been accepted by both the courts that all the three prioi debts were paid from out of Rs. 5,00, oOo/- cash" credit loan granted to the appellants under the mortgage deed B and the 13 bills of excli'ange, the time for payment of which had not fallen due and some of which were executed by parties other than the appellants, were endorsed in favour of the appellants and returned to them as a consequence of the discharge of the debts due on the 'three prior accounts.

The mortgage deed states that the properties detailed in C schedule annexed thereto were being mortgaged without possession as better security for the repayment of the sum of Rs. 5,00,000/- under the deed together with interest accruing in future and all other sums thereby secured. Clause 1 "of the deed states that the mortgagor shall repay the said sum of Rs. 5,00,000 and all other sums secured thereunder within a period of 5 years from the date, D in "the manner and subject to the conditions detailed thereafter~

that the mortgagors shall pay interest on the said sum oi Rs. 5,00,000/- or such other sum that may remain due from them to the mortgagees from time to time at the rate of six per cent per annum till the whole amount is fully repaid; that the mortgagors shall pay the interest accruing due every three months without E default, that the principal sum of not less than Rs. 1,00,000/·

was to be paid per year by the end of each year following; and that the pavments towards the principal shall not be less than Rs. 5.000/: at a time per month and the balance to make up Rs. 1,00, ffOO/- per annum payable shall be paid before the expiry of each year following. There are other terms to which it is not necessary to refer except the last one by which it is agreed that "If the mortgagors commit breach of any of the conditions and covenants and the mortgage money becomes payable either by F

reason of default or any other cause whatsoeve< and the mort gagors fail to pay the amount due on demand, the mortgagee will be entitled to sue and bring to sale the said properties hereby mortgaged and if the sale proceeds are not sufficient to satisfy G the mortgagee decree the mortgagors will pay the said balance personally and from their other properties both movable and immovable". From the terms of this mortgagee it is evident that the.debt of Rs. 5,00,000/- is a fresh debt created by and secured thereunder with interest that may become due from"" the date of the mortgage and that there is, therefore, no question of the mort- H gage deed having been execute<! as a settlement of prior debts so as to attract the provisions of sections 11 and 25 of the Act.

In this view, the Civil Court had jurisdic\ion and the decree

wanted by the trial court and confirmed by the appellate court

<loes .Hot suffer from any infirmity.

The appellants have asked fer a direction to allow them to pay the decretal amount by instalments but we do not think that there is any justification for granting this prayer.

The respondent, however, is prepared to give them time for payment provided half the amount is paid within a certain period and the balance thereof thereafter so that the entire decretal amount is payable within a year from the dat~ of this judgment.

We accordingly direct the appellants to pay within four months from the date of the judgment half the decretal amount with interest due thereon and the balance thereof together with further interest within 8 months thereafter. If half the decretal amount is not paid within four months as directed, the first respondent will be free to execute the entire decree. With these directions the appeal is dismissed with costs. s.c.

Appeal dismissed.

BALKISllANDAS

STATE BANK OF HYDERAUAD AND ANR

K. S. HEGDE

S. 11 and 25

S. 11 and 25

S. 22

s. 11

30th June, 1953

s 25

Jagirdars Debt Settlement Board

S. 25(1)

Dimiisaina

Sections 11 and 25

Section 25

1971) 2 S.C.R. 136

S. 11 and 25

1964] 6 S.C.R. 903

CIVIL APPELLATE JURISDICTION

A. R. Somnath Iyer

R. K. P. Shankardass

R. V. Ramarao

P. K. Pillai

S. V. Gupte

A. V. Rangam

A. Subhashini

P. Jaganmoban Reddy

Andhra Pradesh High Court

Blink

section 22

section 11

30th June 1953

section 25

section 11

Dwarkadas Mukandas

Dwarkadas Mukundas

section 3

Hyderabad High Court

section 25(1)

section 11

section 11

section 11

section 21

section 25

section 25

section 25

section 3

Article 14

Constitution of India

Supreme Court

Further, section 3 of the Act was also challenged as ultra vires of Article 14 of the Constitution of India on the application of the decision.of the Supreme Court in thi;§tate of Rpjasthan v. Mukand Chand. (

Mukandchand

Article 14

section 2(e)

section 3

Abolition of Jagirs Regulation

section 11

section 25

sec. 25

J agirdars Debt. Settlement Board

section 25

Grover

s. 25

s. 25

s. 22

s. 11

s. 15

s. 11

s. 11

s. 11

Clause 1

sections 11 and 25


UJ.JAL.MANDAL

STATE OF WEST BENGAL

.January 21, 1972

[J. M. SHl!LAT, H. R. ~NA AND K. K. MATHl!W, Jl".]

Constitution of India, 1950; Art. 22(4) and West Bengal (Prevention of Violent Activities) Act (Presidenfs Act 19 of 1970), ss. 12 and 13- Detention beyond three months on Advisory Board's Report-Whether Government should .confirm detention order within three months from date of detention. -

The petitioner was arreste.d on May 11, 1971, under s. 3 of the West liengal (Prevention of Violent Activities) Act, 1970. His case was placed before the Advisory lloard and the Board submitted its report to the State Government on July 12, 1971 that there was sufficient cause for the petitioner's detention. The .. State Government confirmed the order fif detention on August 17, 1971.

L Jn a petition under Art. 32,

HELD : The deiention was illegal, since the' State Government confirmed the detention order beyond three months from the date of detention. . ' ' .

Article 22(4) has specified three mont!>-o. as the maximum period of initial detentio11 and dotetitiori ior a lo11ger period cao only be made on the basis of the re11ort bf the Advisory Board. Under ss. 12 and 13 of the I Act, the State Government has' power to detain a person beyond a period of 3 months but limited to u period of.one year, on the basis of tbe opinion of. the Board tliare ii [IUlfigjent cause for detention.

Wben the Stal.• Government receives the opi.Qion, i~ pas_ -:tbe option either to con1Um or not the detention order: It would riot be necessary to confirm the detention if the Government wants to continue the detention only fdr the period of three months. Whep, s. l2(1) sppak of 'and continu.e. the detention of the person concerned. 'fbr such period as it thinks fit', it can only mean continuance of tbe defention from the point of time at which the detention F

would become-illegal if the order of detention is not confirmed, namely, the expiry of three.111ontbs from thedate of detention. lfthat be so,, the order of detenticin .. must be confirmed beiore the expiry of the three m<11tths. [168 G; 169 C:-OJ

Dattatreya Moreshwar Pangarkar v. State of Bombay, [1952] S.C.R.

G 612, 626 and Deb Sadhan Roy v. State of West Bengal, W.P. No. 218/71, followed.

Aswini Kumar Banerjee v. State & Ors., C.W.N. LXXV, 1970-71, 866, Kaur Singh v. State, A.I.R. 1952 PBPSU 134. , sangappa Mulappa v, State of Mysore, A.LR. 1959 Mys. 7 and Bhupati Goswami v. C. R.

Krishnamurthl & Ors., A. I. It.. 1991 Aasam 14, apprO\-ed.

H ORIGINAL JURISDICTION: Writ Petition No. 420 ot 1971.

Under article 32 ol the Constitution of India for a writ in the nature of habeas corpus.

Santokh Singh, for the petitioner.

P. K. Chakrovorty and G. S. Chatterjee, for the respondent.

The Judgment of µie Court was delivered by

Mathew, J. This is an application under Article 32 of the Constitution for the issue of a writ in. the nature of habeas corpus JI and for the release of the petitioner who is alleged to )le kept in illegal detention.

On 11-5-1971, the petitioner was arrested under an order made on 29-4-1971, by the District Magistrate, 24 Parganas, in the exercise ol' his power under sub-sectiqn ( 1) read with subt- C section (3) of section (3) of the West Bengal (Prevention. of Violent Activities) Act, 1970 (President's Act No. 19 of 1970), hereinfater called the Act. A copy of the grounds of detention was served on the petitiOi!ICr as required by section 8 of the Act on 11-5-1971. The District Magistrate reported to the State Government on 4-5-1971 about the passing of the o.rder of detention and the detention order was approved by the State Govern- D ment on 10-5-1971. The case ol' the detenu was placed bjefore the Advisory Board (hereinalter called the Board) on 9-6-1971.

Two rel?resentations were received by the State Government from the petitioner. They were rejected by orders dated 8-6-1971 and 7-7-1971. The representations were also forwarded to the Board.

The Board was of the opinion that there was sufficient E cause for the detention and it submitted its report to the State Government on 12-7-1971. The State Government confirmed the order of detention on 17-8-1971 and that was communicated to the detenu on 21-8-1971. · The only point taken on behalf of. the. petitioner in this writ petition is that since the detention order was confirmed by . the II State . Government only on 17-8·1971, it was beyond 3 months from the date of detention, namely 11-S-1971, and therefore, the detention of the petitioner after the expiry of 3 months from the date of detention was illegal.

It is necessary to examine the provisions of Article 22( 4) of the Constitution and the relevant sections of the Act to decide G this question.

Article 22(4) of'the Constitution provides:

" ( 4) No law providing for preventive detention s)lall auth!>rise . the detention of a persolll for a longer period than thteC months unless-.:.. · H

(a) an AtviSory Board.consisting orpenons who are, or have been or are qualified to be 'appoiRted es,

l)JJAL, MANDAL v .. WBST BENGAL (Mathew, J.) 167

Judges :of a High Court has. reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention;

Providc; d that nothing in this sub-clause shall authorise the detention of any person qeyond the maximum period prescribe<:! by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of . clause (7)".

Section 10 of the Act provides that in every case where a deten- C tion order has been made under the Act, the State Government shall, within ):hirty days from the date of. detention under the order, place before the Board, the grounds on which the order has been made and the rqiresentation, if any, made by the person affected by .the order, and in case where the order has been made an officer specified in sub-section ( 3) of section 3, also the D report made by such officer under sub-section ( 4) of section 3 ..

Section 11 prescribes the procedure to be followed by the Board.

It says that the Board shall, after considering the materials placed before. it and after hearing the detenu in person, if he desires to be heard, submit its report to the State Government within ten weeks from ihe date of detention.

Section 12 reads as follows :-

E "Action upon the report of Advisory Board : (1) In any cas~ where the Advisory Board has reported that there is, in its (, pinion, sufficient cause for the detention of a person, the State Governmcmt may confirm the detention or4er and continue the detention of the person epncemed for such period as it thinks fit.

(2) Im l\hy case where the Advisory Board has re~ ported 'that there is, in its opinion, no sufficient caUSe for the detention of the person' con¢rned, the State Government shall revoke the detention order and cause the person to be released forthwith." Section 13 provides ibat the maximu~ period fQr which a person G may be detained in pursuance to any detention order under sec

tion 12 shall be 12 months from the date ol detention. , Section 14 provides thaHhe State Government may, at any time, revoke or modify the detentioo order.

Since .the appropriate Government has to make .. the reference to the Board within a period qf thirty days (rom the date ofthe detention under seetion 10. and the .Board has to s1,1bmit its report within ten weeks from the date of detention under section 11, there would be ample time for the appropriate Government to

168 sirP)lEME COURT REPORTS

[J 972] 3 S.C.R.

consider the f!lp<?rt and confirm the . detention order '!Vi thin 3 A months of the date of detention,, if it decides to continue the detention.

Now the Board has got to express its opinion only on. the point as to. whether there is sufficient cause for detention of the persoo concerned. It . is neither called upon nor is it competent to say B anything regarding the contiinuance of the• detention . _beyond 3 months. Once the Board expresses its view that there is sufficient cause for detention, what action is to be taken subsequently is left entirely to the appropriate Gove11llment. If the report records

the opinion that there is no sufficient cause for detention but no action is taken by the Government to rel.ease the detenu, the dete111:u is not aut9matically released. l, ikewise, if the opinion of C the Board is that there is sufficient cause for detention, but the Government does not confirm the order of . detention, the period of detention is not automatically extended beyQJid 3 months.. So when t~ report of the Board is received-'and that must be within 3 months--the appropriate Government must apply its mfnd and make an order or take an executive decision whether to confirm D the order of detention or revoke it.

Section JI of the Preventive Detention Act, 1950, where the phraseology employed is the same as iin section 12, came 'tip for consideration in Dattatreya Moreshwar .Pangarkilr v.· Stat~ of Bombay(1) before. this Court and this is wht Mukherjea J. said :

"In my opinion, the words 'for such PeriO<I as it thinks fit' presupe aoo imply that a!'til~ ~!J'! of e report Of the Advisory BO!ll'd the detaining authonty has to make up its mind as tb whether the original order of detention. should be confirmed !ind if so, fur what further period the detention is to continue. . Obviously, that is the proper stage tor making an or4er or decision of this description as the investigation with regard to a particular detenu. such as is. conte111Plated by the Preventive Detention Act is. then at an end 8lld the appropriate Government is in full possession of all the materials regarding him." · ·

G Article 22 ( 4) of the Constitution has specified the inaxinilllii limit of initial detention, and detention for a lonser period thati 3 months can only be made on the basis of the 'rep<)tt of the Board. The Act authorises a possible. detantion of more - 3 months.

It is because the appropriate Goverlllllent wants to detain a person for more than 3 months that the matter.is.'~ a to the Board and it is only when the Bi>ard pia1ce., its. l'fiW~:il!lll

(I) [19S2) S.C.R. 612, 626.

' , A

the appropriate Government ca.n fix the period of detention under sul>6ection (1) oi section (12). So, when the Government receives the report of the Board stating that there is sufficient cause for detention of a person, if the <; Jovernmeot wants to detain

him for a period beyond 3 months, it has to pass an order or make a decision under section 12(1) to confirm the order. of B detention. The confirmation Of the detenti.on order without anything more would' result in an automatic continuation of the deten. tion, even if )here is no separate decision to continue the detention for any specific period as held by this Court in Dattatreya Moreshwar Pangarkar v. State of Bombay(1). When section 12(1) of the Act speaks oi "and continue the detention of the person cone cemed for such period as it thinks fit", it can only mean continuance of detentmn from the point of time at which detention would become illegal if the order Of detention is not confirmed, namely, the expiry of 3 months from the date of detention. It would not be necessary to confirm the order of detention even after the receipt of the report of the _Board by the Government if~ the Government only wants to continue the detention for the D period of 3 months from the date of detention, as the initial order of detention would authorise the continuance of detention for that period without any confirmation. Confirmation is lllllCCSsary only to continue the detention after the expiry of 3 months. If that be so, it stands to reason to hold that the order of detentiqn. must be confirmed before the expiry of the 3 months.

E To put the matter .i; n a nut-shell : the State Government has power under the Aet to detain a person without trial beyond a period of 3 months but limited to a period of one year.

That power the State Government may exercise on the receipt oi the

inion of the Board that there is sufficient cause for the deteni' tion. ·. Wilen the State Government receives that opjnion, it has

still the option to exerci!e the power and to continue the detmtion ond the period of 3 months or not.

CQD\firmation is tile eiceroi, Co of the power to continue the detention aftei: the expiry of the tliree months. Unless that power is exercised within the period G't 3 months from the date of detention. the deteotion after the G expiry of that period would be without the aut):lority of the law .

. In Aswini Kumar Banerjee v. The State and. others( 8), the Calcutta High Court, in considering the point in question has

analysed the relevant provisions of the Act in the light of article 22 ( 4) of the Constitution and come to the conclusion thllt the sine qua non for continuance of th11 detention made utnder sub- H section ( 1) read with sub•section ( 3) of section 3 of the Act

(J) (1952) S.C.R. 612.

(2) Calcutta Weekly Notei, Vol. LXXV, 1970-71 p. 866. 12-L864Sup CI/72

beyond the period of the 3 months are (a) a report by the Board A submitted to the State Govemment within 10 weeks from the date of detention recording its opinion th.!lt there is sutlicierit cause or the detention of the person concernelf, and (b) the confirmatiOlll thereafter of the said order of detention by the State Government within 3 months from the date of dete; ntion. ·

The question was considered by the High Court of Pepsu in Kaur Singh v. The State(') with reference to the provisions of sections 10 and 11 of the Preventive Detention Act, 1950, which

are iin pari materia with sections 11 and 12 of the 6ct, and the Court came to the conclusion that without confirming the detention order within 3 months of the date oi detention, tlie detention c of a person c3jllllot be continued after the 3 months.

The Court said:

"The argument that the law does not enjoin that there must be an order of confirmation and that the mere fact that it continues to detain the person meains that the Government had decided to confirm the initial detention order, ignores a very important and the most effecitve part of sectiQU 11. What section 11 provides is that the Government 'may cOnfii111' and 'continue detention' have their own significance and they obviously mean that if the Govemiment decided to continue the detention it must confirm the order of detention, and that the non-confirmation of the order would result in its revocation and termination of the . detention. The verb 'may' only indicates that it is not obligatpry on the Government to confirm the detention order even though the Advisory Board has reported in favour of the necessity oi cootinuing the detention.

The phrase, read in its context, undoubtedly signifies that the Government, if it decides to continue the detention, must confirm the detention order."

In Sangappa Mallappa v. State of Mysore('), the High Court of Mysore held, after considering the provisions of section 11 of the Preve; ntive Detention Act, 1950, which, as already stated, are G identical with those of section 12 of the Act, that to continue the detenion of a detenu after the expiry of 3 months from the date of detention, it is essential that the order of detention must be cOlllfirmed within the 3 months.

In Bhupati Goswami v. C. R. Krishnamurti and others(•) the High Court of Assam, after considering the scheme of the Preven- H

(I) A.l.R. 1952 Pepsu 124.

(3) A.l.R. 1969 Assam 14.

(2) A.l.R. 1959 Mysore 7.

tive Detention Act, 1950, held that although the provisions of A section 11 ( 1) of that Act does not in terms mentiqn any time limit for confirming the order of detention, the time limit of 3 months is impl.icit in the entire scheme of the Act.

The question was considered by this Court iri Deb Sadhan Roy_

v. The State of West Bengal(') and the Court took the view that B the order of detention must be confirmed within 3 months of the date of detention : else the detention bey(\rid that period would become illegal.

We see no reason to doubt the correctness of this decision and'we follow it.

We think that the detention of the petitioner is illega! and that he has to be released forthwith.

We order accordingly.

V.P.S.

Petition alloived,

---- --· ----- (I) W.P. No. 218 o 1971.

UJ.JAL.MANDAL

STATE OF WEST BENGAL

.January 21, 1972

Constitution of India

Art. 22(4)

Prevention of Violent Act

ss. 12 and 13

s. 3

Prevention of Violent Act

July 12, 1971

August 17, 1971

Art. 32

Article 22(4)

ss. 12 and 13

article 32

Constitution of India

Santokh Singh

P. K. Chakrovorty

G. S. Chatterjee

Mathew

Article 32

section 8

Article 22( 4)

Article 22(4)

Parliament

Section 10

section 3

section 3

Section 11

Section 12

Section 13

Section 14

section 11

section 12

Mukherjea

Plated by the Preventive Detention Act

Article 22

Jovernmeot

section 12(1)

section 12(1)

Calcutta High Court

article 22

section 3

Calcutta Weekly Notei

High Court of Pepsu in

sections 10 and 11

Preventive Detention Act, 1950

sections 11 and 12

section 11

High Court of Mysore

section 11

Detention Act, 1950

section 12

High Court of Assam

Detention Act, 1950

section 11


CHIGURUPATI VENKATA SUBBAYYA & ORS •.

v.·

PALADUGA ANJ'AYYA & ORS.

January 24, 1972

(K. S. HEGDE, P. JAGANMOHAN REDDY AND D: G. PALEKAR, JJ.]

Madras Estates Land Act (I of 1908), "· 20A and 189, and lttm 6, Part B of ScMdule-Collecto1's order urider s. 20A-WMn affects th• comn1unal use of lands-Jurisdiction of Civil Courts, when ba"ed.

Madras Estates (Abolition and Conversion into Ryotwari) Act (26 of 1948), ss. 11 and 56-Power of Settlement Ofjicer to grant pat/a wilh respect to communal lands-Decision of Settlement Officer, when final.

c A suit by the respondents for a declaration that certain lands were communal lands was decreed by the High Court in appeal. In appeal to this Court, it was contended that: (I) ihe Collector held under s.-20A of the Madras Estates Land Act, 1908, that the lands were no longer required for the purpose for which they were originally intended; (2) the first appellant had been in possession of the lands after obtaining a grant from the Zamindar; ( 3) after the abolition of Estate .under the Estates Abolition Act, 1948, the lands were granted to him by the Estates Manager; (4) D during the pendency of the suit, the Assistant Settlement ()fficer granted a patta to him under •· 11 of the Aholition Act; (5) the decision of the Aslistant Settlement Officer was final under s. 56 of the Abolition Act;

(6) the Civil Court had no jurisdiction under s. 189(1) of the. Estates Land Act; and (7). that under s. 3 of the Abolition Act, the communal rights were abolished.

Dismissing the appeal,

HELD : ( 1) Under s. 20A of the Estates Land Act. before the chi lector can order di-sion of the use of any communal land, he should first dec1are that the land is no longer required for any of the purpceea referred to ins. 3(16) (a) and (b), then direct by order in wrltlllf that the

land be used for any other specified communal purpose, and if it is not so require<!,· then it may be converted into ryotwari land or landholder's ryoti land according as the reversionary right vested in the Government the landholder. In tho present case, the Collector, apart from mat.Ing tlle order -that the lands were no longer requireit for the oriaiiial purpooe, did not make any other order in writing. {178 G-H; 179 ABJ

(2) In view of ss. 20 and 20A of the Estates Land Act, the Zaniindar did not have any right to deal with the communal lands. [176 D-E]

(3) The order of the Estates Manager is inelfective becaUIO it procee.i.. od on the .erroneous assumption that the lands had already been converted into ryotwari lands. [179 O.D]

( 4) The lands in dispute are not Janka lands, nor were they declared to be ryoti lands either under the Abolition Act or the F.stab!s Land Act The Assistant Settlement Officer has no power to convert communal land

into ryoti land. Therefore, he has no competence under s. 11 '1f the Abolition Act to grant the ryotwari patta. fl80D-BJ H

Yalathar Moopananri v. Board of Revenue 1966 (1) M .L.J. approved,

C!IlGURUPATI v. PALADUGA (Hegde, J.) l 7 3

(5) Under s. 56 of the Abolition Act, the decision of the Settlement Officer is made final only with respect to matters referred to in s. 5&(1) but the question whether the lands in dispute continued to be communal lands does not fall within its scope. [181 B-C]

(6) Under s. 189(1) of the Estates Land .Act the jurisdiction of the civil courts is taken away only in respect of suits or applications of the natnre specified in Parts A and B of the Schedule to the Act. Item S of Part B of the Schedule 'refers to a decision of the Collector under s. 20A (!), but, in the present case, there is no such order in writing. [181 F-0]

(7) Under s. 3 of the Abolition Act, the lands vest in the Government, but the rights of tlie community over the lands were not taken away.

Under the Act, only the rights created by the principal or other laod holder were abrogated, but the rights of the community over the lands were not such rights. [182 D-E]

CJ.VIL APPELLATE JURISDICTION : C.A. 556 of 1967.

Appeal by Special leave from the judgment , and decree dated August 29, 1966 of the Andhra Pradesh High Court in Second Appeal No. 644 of 1962. ' _ -

R. Vas11dev Pillai and P. Kesava Pillai, for the appellants.

K. R. Chaudhuri and K. Rajendra Chowdhary, for respondents Nos. 1 to 4.

The Judgment of the Court was delivered by

Hegde, J.

This is an a, ppeal by special leave.

Defendants 2 to 7 in the suit are the appellants in this appeal. The plaintiffs who are respondents 1 to 4 herein sued for a declaration that Survey Nos. 12 to. 18 comprising an extent of 10 acres 54 cents in South . Va!Iur village of Vijayawada Taluk are communal lands,/ the villagers therein having rights of irrigation and drainage. In that suit they challenged the assignment or suit lands in favour of. the 2nd defendant (1st appellant) by the Estates Manager by his order of December 21, 1952. They also soughta permanent injunction restraining the defendants from interfering with the exercise of their rights in those lainds. Further they prayed for a mandatory injunction against defendants 2 to 7 directing them to restore "Agakodu" at their own cost to its original condition. The plaintiffs brought ·

the suit in a represntative capacity after obtining the permission 6f the court.

The 2nd defendant resisted <he suit on various grounds.

He pleaded that he had been in possession of Survey Nos. 12 to 15 ever since 1946, after obtaining a grant from the Zamindar of the South Vallur under Patta Ex. B-8 dated January 15, 1946.

According to him after the abolition of the Estates under the Estates H Abolition Act, 1948 (in short the Estates Abolition Act), Survey

Nos. 16 to 18 were held to be unnecessary for the origlil!lll purpose

!>}' the Collector.

Thereafter those Survey Nos. were granted to hun biy the Estates Manager under Exh. B-16.

He further pleaded A that during the pendency of the suit, a Patta for the suit lands was granted to him under s. 11 of the Estates Abolition Act by the Assistant Settlement Officer under Exh. B-30 dated December 10,

1955.

The trial court dismissed the plaintiffs' suit upholding the con- B tentions ol the 2nd defendant. It came to the conclusion that the plaintiffs had failed to establish the communal character of the la.nds pleaded by them and further even if those lands were communal lands at one time, they had ceased to be such in view of the various orders passed by the authorities.

The first appellate court reversed the findings of the trial court C and decreed the plaintiffs' suit as prayed for.

It came to the cooclusion that the lands in question were communal lands and the villagers had rights of irrigation and drainage through those lands.

It further came to the cQllclusion that the various orders referred to by the 2nd def.endant in his written statement were either invalid or ineffective.

The High Court has affirmed the decision of the D 1st appellate court.

Mr. R. V. Pillai, the learned Counsel for the appellants formulated three contentions before us viz. ( 1) that the conclusion reached by the 1st appe!late court and affirmed by the High Court that the ands in question are comlllunal lands has no basis in E evidence; (2) that-the Civil court bad no jurisdiction to entertai, n the suit and (3) in any event the communal rights in the suit lands were extinguished under s. 3 of the Estates Abolitiooi Act.

We shali nowlJroceed to examine these contentions. But before doing so, it is necessary to point out that Mr. Pillai attempted to reopen questions of fact which appear to have been C<¥1Ceded F bjefore the High Court. We have not permitted him to do so.

From the judgment of the High Court, it is clear that the arguments in that court proceeded on the basis that the suit lands were once communal lands; Suzyey Nos. 12 to 15 even now continue to be communal lands but Survey Nos. 16 to 18 ceased to be as such because of the order passed by the Collector, Krishna on October G 29, 1946 under s. 20-A(l) of the Madras Estates Land Act as well as that passed by the Estates Officer and Assistant Settlement Officer subsequently, to which we shali refer presently. In the course of the judgment the learned judge of the High Court observed :

"It is not in dispute that the lands S. Nos. 12 to 18 and measuring 10 acres and 54 cents, situate in South

Vallur village in Vijayawada taluk are poramboke lands.

CHIGURUPATI V, PALADUGA (Hegde, J.) 175

That they were used for the purpose of irrigatiqn and drainage is lj]so not in dispute. It is common ground that under Ex. A-1, the Collector, Krishna passed an order under Section 20-A ( 1 )(a) of the Madras Estates Land Act as amended by Madras Act VITI of 1934 to the effect that lands, S. Nos. 16, 17 aind 18 were no longer required for the purpose for which . they were originally intended.

Under that order, the Collector asked the Zamindar to say whether he had got any 'reversionary rights in the lands. What happened subsequently is 111ot clear from the record.

It is however common ground that S. Nos. 12 to 15 (both inclusive) continued to .bje communal lands and no order under section 20-A (2) was at any time passed by Collector converting these communaJ lands into ryotwari lands or .assigned them to anyone till the estate was abolished. It will thus be clear that there was merely a declaration that S. Nos. 16, 17 and 18 were no longer required for the purpose for which they were originl!llY intended. No further order converting those lands to ryotwari lands was passed and that S. Nos. 12 to 15 continued to be commlllllal lands till the estate was abolished."

In view of the stand taken by the appellants before the High Court, it is not permissible for them to contend that Survey Nos.

E 12 to 18 were at no time communal lands nor is it open to them to contend that Survey Nos. 12 to 15 \lo not still continue to be communal lands. The controversy as regards the nature of the lands, therefore, must be confined to Survey Nos. 16, 17 and 18. In this view, the first contention of Mr. Pillai fails so tir as Survey Nos. 12 to 15 are cOlllcerned.

F So far as Survey Nos. 16 to 18 are concerned, it was said that these lands had ceased to be communal lands as a result of the various orders passed by the authorities.

Let us examine whether this contention is correct ? Before doing so it is necessary to refer to some of the provisiom in the Estates Land Act as well as the G Estates Abolition Act. No l)laterial was placed before the court to

how that the South Vallur Zamindari Estate included Survey Nos. 12 to 18. Section 3 of the Estates Land Act defines an "Estate" as meaning:

(a) "any permanently-settled estate or temporarilysettled zamindari;

(b) any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector;

(c) any unsettled palaiyam or jagir;

( d) any inam village ell which the grant has n

made, confirmed or recognized by the Government notwithstanding that subsequent to the grant, the village has been partitioned emqng the

jl; rantees or the successors in title of the grantee or grantees.

Explanation ( 1) Where a grant of an inam is expressed to be of a named village, the area which forms the subject-matter of the grap.t shall be deemed to be an estate notwithstanding that it di\I not include certain lands in the village of that inam which have already been granted on service or other tenure or beqn reserved for communal purposes."

This definition does not help the appellants.

The appellants have failed to estal:>lish that the Zamindar could have conveyed any D right in the suit lainds to the appellants. In view of s. zo and 20-A of the Estates Land Act, to which we. shall refer a little later, no Zamindar appears to have had any right to deal with communal lands.. 'Hence the alleged grant by the Zamindar, does not appear to confer on the first appellaint any ti.tie.

T-his takes us to the question whether the order made by the E Collector on October 18, 1946 (Exh. Al) can be considered as having conferred any tiUe on the Zamindar in respect of Survey Nos. 16, 17 and 18. That order reads:

"Re. A3-13 M.P. 46 Exhibit A.1

Proceedings of the Collector, Kl'ishna at Chilakatapudi.

Sub:: E.L. Act-Bezwada Taluk, South Vallur, S. Nos. 17, 18, 16 Enquiry under Section 20-A. Order under Section 20-A(l)(a) passed.

Read : This office D. Dis. 5876-45 D/29-3-45 and RD.O's Dis. 9609/46 dated 18-10-46.

ORDER Under Section 20A(l )(a) of the Madras E.L. Act as amended by Madras Act VIII of 1934, the lands mentiooi:d in the schedule below are declared to be no longer required for the purpose for which they were originaliy intended.

Taluk

Cl; llGURUPATI V. PALADUGA (Hegde, J.)

I 77

SCHEDULE

Village S.No.

Extent Oriainal classifica

tion.

Bczwada South Vcllur 16 17 18

OBS

1-72

1-19

Agakodu P.W.D.

Drainage channel . Poramboke- . Sdl- •

29/10 Collector

( 2) Tho Zamindar is requested to state whether he has any oral or. documentary evidence to. prove that the reversionary right in the lands vest in him and to adduce it if any, before the Collector within sixty days from the

date of this order. Sd/- 22-10-53, Try. Deputy CoHector,

Krishna".

For detennining the effect of that order, it is necessary to refer to SOll1C of the provisions ot the Estates !; and Act. Section 3(2) of that Act defines "ryot" as meaning :

\ . "a person who holds for the purpose of agnculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it" "Ryoti Jand" is defined ins. 3(16) which says:

" "Ryoti land" means cultivable land in an estate other than private land but does not include-

(a)

(b) throshing-ftoor, cattle-stands, village sites, and

other lands situated in any estate which are set apart for the common use of the villagers. (c) " Section 20-A of the Estates Land Act says :

"(1) Subject to such rules as the State Government may prescribe illl this behalf, the District Collector may on the application of the landholder, a ryot or any other person interested-

( a) declare that any land or any portion of any llUld

which is set apart for any of the purposes referred to i.n sub-clauses (a) and (b) of clause 16 of

SUPREME COURT REPORTS [1972] 3 S.c.Il.

section 3 is no loni:er required for its original purpose; and

(b) by order in writing direct- ( i) that any such land or portion in respect of which such declaration is made be used for any other specified commlll1llll purpose; or

(ii) if such land or portion is not required for any communal purpose, that it hie converted into ryotwari land or landholder's ryoti land according as the reversionary rights in such land vest under the terms, express or implied of the siad, title-deed or other grant (in the Government) or in the landholder :

Provided that before making any such declaratioo and order, the District Collector shall have due regard to any other customary rights oi the landholder or the ryots in the user of such land or portion and shall satisfy himself D that the exercise of such rights would otherwise be provided for adequately if the declaration and order are pJlt. into effect :

Provided further that in the case of any land Of the description referred to in sub-cause (a) oi clause ( 16) of section 3 the reversionary righ!s in which vest in the landholder under the terms, express or implied, of the sanad, title-deed or other grant, any order under subclause (i) of clause (b) shall be made only with the consent of the landholder.

( 2) Without the written order of the District Collector under clause (b) of sub-section ( l), no land which is set apart for any of the purposes referred to in. subclauses (a) and (b) of clause (16) of sectiQ!l 3 shall be assigned or used for any other purpose. Nothing contained in this sub-section shall affect or take away or be deemed to affect or take way the customary rights of the landholder or the ryots in the user of any such land."

Before the Collector can order the diversiQll of the use of any communal land, he sholud first declare that the land or any portion

of that land is no more required for any of !he purposes referred to in sub-clauses (a) and (b) of clause (16) ofs. 3 and.he should further make an order in writing directing that the same .bli used H for any other specified communal purpose or if the salae is not required for any communal purpose, that it converted into ryotwari land or landholder's ryoti land, J; f 18 cleat from sub-s.

CHIGURUPATI v. PALADUGA (Hegde, !.) 179

(2) of s. 20-A that without a written.order of the District Collector A under cl. (b) of sub-s. (1), !IlO land which was set apart for any

- • of the purposes referred to in sub-els. (a) and (b) of cl. (16) of s. 3 can be assigned or used for any other purpose.

The order of the Collector Qn which the first appellant has relied is an incomplete order. Apart from making a declaration that Survey Nos. 16 to 18 are no more required for purposes for which they were originally intended, the Col~ctor did not appear ito have made B any order under cl. (b) of s. 20-A. Hence despite the order of the Collector, Survey Nos. 16 to 18 continue to be communal lands.

Reliance was next placed by the appellants on the order of the Estates Manager dated December 21, 1952 (Ex. B-2) for claiming C title to the suit properties. In this order the Estates Manager proceded on the basis that the Collector's order to' which we have already qiaae reference had already converted Survey Nos. 16 to 18 into ryotwari lands.

This is -an erroneous assumption.

That assumption cannot confer any right on the 1st appellant.

The Estates Manager is not shown to have had any power under any D law to convert the communal lands into ryoti lands.

Hence his order cannot be considered as having validly converted the suit lands into ryoti lands.

Lastly appellants sought support from the order of the Assistant Settlement Officer made on Decem!J\cr 10, 1955 (Ex. B-30). This order was made during the pendency of the suit ain'd without notice E to the plaintiffs-respondents. It is purported to have been made under s. 11 (a) of the Estates Abolition Act. Under that order the Assistant Settlement Officer granted to the !st 'appellant ryotwari patta in respect of Survey Nos. 16 to 18. Section 11 of the Estates Abolition Act, does not authorise the Assistant Settlement Officer to com'.}rt the communal land into a ryoti land. That section F reads:

"Every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of-

( a) all ryoti lands which, immediately before the notified. date, were properly included or ought to have been properly included in the holding and which are not either Janka lands or lands in respect of which a land-holder or some other person is tllltitled to a ryotwari patta under any other provision of this A ct; and

(b) all Janka lands in his occupation immediately before the notified date, such lands having been

in his occupation or in that of his predecessorsin-title continuously from the 1st day of July 1939:

Provided that no person who has b(een admitted into possession of any land by a landholder on or after the 1st day of July,.1945 s)lall, except where the Government after an examination of all the circumstances otherwise direct,. be entitled to a ryotwari patta in. respect of such land. ·

Explanation :-No lease of any Janka land and no persqn to whom a right to colle.ct the rent of any land has been leased before the notified date, including an ij8!dar or a farmer of rent, shall be entitled to a ryotwari patta in respect of such land under this section."

The lands with which we are concem:ed are not Janka lands nor were they declared to be ryoti lands either under the Abolition Act or under the Estates Land Act That being so, the Assistant Settlement Officer had no competence to grant ryotwari patta ill

respect of those lands-see the decision of the Jyladras High Court in Va/athar Mooppannar and ors. v .. The Board of Revenue, Madras('). That officer has purported to grant the patta in ques tion even without notice to the interested parties and that during the pendency of the snit.

For the reasons mentioned above, we are unable to accept the' contention of the appellants that Survey Nos. 16 tQ 18 have ceased to be communal lands or that the appellants had obtained any Jaw- . ful title to them.

It was urged that the order of the Assistant Settlement Officer \vhether the same was in accordance with Jaw or not must be deemed to be final in view of s. 56 of the Abolition Act. This contention is again untenable.

Section 56 says :

. "(1) Where after an estate is notified, a dispute arises as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or ( c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer .

. (2) Any person deeming himself aggrieved by any

dec1s10~ o~ the Settlement Officer under sub-section (1) may, within two months from the date of the decision ot

(I) (1966) 1.M.L.J. JSol

ClllGURUPATI v. PALADUGA (Hegde, J.) 181

such further time as the Tribunal may in its discretion allow, appeal to the Tribunal and its decision shall be final and not be liabliLJo be questioned in any Court of lavl."

The decision of the Settlement Officer which is made fi:nal under this section must be a decision in respect of one of the matters referred to in sub-s. ( 1) of s. 56. The controversy with which we are concerned in this case viz. whether tho~ suit lands continue to be communal lands dcies not fall within the scope of that section.

Hence we are unable to accept the contention of the appellant that the order made the Settlement Officer has become final or conclusive. It is a wholly invalid order. In this view, it is not ll.CCessary to consider whether an order made under s. 11 without .. ce to the interested persons can be considered as a valid order.

TI1e contention that the civil courts have no jurisdiction to go into the controversies arising for decision in this case in view of s. 189(1) of the Estates Land Act is again without merit. That section provides :

"A District Collector or CoJ!ector hearing suits or applications of the nature specified in Parts A and B of the Schedule and the Board of Revenue or the District Collector exercising appelate or revisionaJ jurisdictiqn therefrom shall hear and determine such suits or applications or exercise such jurisdiction as a Revenue Court.

No Civil court in the exercise of its original jurisdiction shall take cognizance of any dispute or matter in respect of which such suit or application might be brought or made."

The jurisdiction of the civil courts is taken way only in respect of suits or applications of the nature specified in parts (A) and (B) of the Schedule to the Act. No reliance was placed~· the appellants on any ol the matters mentioned in pa.rt (A) d. th• Schedule. Even as regards matters mentioned in part (B) reliance was only placed on item 5 of that Schedule. Part B refers to applications to be .disposed of by a Disct Collector or Collector.

Item 5 refers to a decision of the Collector under s. 20-A( 1). We have already come to the conclusion that the Collector had made no order under that secti0\11.

Hence s. 189 of the Estates Land Act is not attracted to the present case.

The dispute with which we are concerned is a civil dispute. Therefore the courts below hadjurisdiction to decide'the same under s. 9 of the Civil Procedure Code.

The only other contention that remains to be considered is that the communal rights in the suit lands stood abolished under s. 3 of

the Estates Abolition Act.

This contention does 111ot appear to have been taken before the High Court.

Therefore we see no justificaJtion to .11;0 into that contention. That apart, there appears to be no basis for that co, ntention.

Section 3 (a) oi the Estates Abolition Act, repeals several acts including the Madras Estates Land Act, 1908. In view of cl. (bi) of that section all Estates including the communal lands, porambokes and other ryoti lands, waste 13!1lds, pasture lands, Janka lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works; fisheries and ferries stood transferred to the Government and vested in them free from all encumbrances.

It further provide&-that the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 1865

and.i.i:I! other enactments applicable to ryotwari areas shall apply to 'ftW1X estate.

Clause 3 of that section prescribes that "all rights and interests created in or over the estate before the notified date by the principal or any other landholder shall as against the Govetmment cease and determine."

Jt is true that the suit lands in view of s. 3 oi the Estates Abolition Act did vest in the Government.

That by itself does not mean that the rights of the community over it were taken away.

Our attention has not beeai invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.

What has been abrogated is the rights and interests created in or over the estate before the notified date the principal or other landholder.

The rights of the community over the suit lands were not created by the principal or any other landholder.

Hence those rights cannot be said to have been abrogated by cl. ( c) of s. 3 of the Estates Abolition Act.

In the result this appeal fails and the same is dismissed with costs.

V.P.S.

Appeal dismissed.

CHIGURUPATI VENKATA SUBBAYYA & ORS

PALADUGA ANJ'AYYA & ORS

January 24, 1972

K. S. HEGDE

P. JAGANMOHAN REDDY

D: G. PALEKAR, JJ.

Madras Estates Land Act

s. 20A

ss. 11 and 56

Madras Estates Land Act, 1908

Estates Abolition Act, 1948

s. 56

s. 189(1)

Estates Land Act

s. 3

s. 20A

ss. 20 and 20A

s. 11

s. 56

s. 5

s. 189(1)

s. 20A

s. 3

R. Vas11dev Pillai

P. Kesava Pillai

K. R. Chaudhuri

K. Rajendra Chowdhary

Hegde

December 21, 1952

s. 11

December 10,

1955

R. V. Pillai

s. 3

Pillai

Krishna

October G 29, 1946

s. 20

Vallur village

Vijayawada taluk

CHIGURUPATI V, PALADUGA

Krishna

Section 20

section 20

Section 3

October 18, 1946

Section 20

Section 20

Section 20A(l )(a)

Act as amended by Madras Act

llGURUPATI V. PALADUGA

Agakodu

Section 3(2)

Section 20

clause 16

section 3

section 3

s. 20

s. 3

s. 20

s. 11

Section 11

1st day of July 1939

Jyladras High Court

s. 56

Section 56

s. 56

s. 11

s. 189(1)

s. 20

s. 189

s. 9

s. 3

Section 3

Madras Estates Land Act, 1908

Madras Revenue Recovery Act, 1864

Madras Irrigation Cess Act, 1865

Clause 3

s. 3

s. 3