S. KALAWATI

DURGA PRASAD & ANR.

May 2, 1975

[A. ALAGIRISWAMI, P. N. BHAGWATI AND P. K. GOSWAJ>U, JJ.J

Constitution nf India, 1950-Art. 226-Petition dismissed in Jimine but a certificate granted under Art. 133(1) (a}-Validi'ty of certificate.

C The appellant filed a writ petition before the High Court under Art. 226 of the Constitution impugning the order of the Deputy Director of Consolidation. The High Court dismissed he petition in lbnine but granted a certificate under Art. 133(1)(a) on the basis of valuation. ;

On appeal to this Court, the respondent raised a preliminary objection that the certificate granted was not valid because the judgmeilt of the Hi'gb D Court was one affirming the judgment of the Deputy Director, Consolidation.

Setting aside the order of the High Court,

HEID :The certificate granted by the High Court is competent. An order of a High Court under Art. 226 or 227 is an order in a civil proceeding of a High Court and so falls under Art. 133. But it cannot be said that such

l~ cases a party is exercising any right of appeal conferred on him by any statute nor is the High Court exercising any power of appeal. Whatever might be the position even in respect of petitions under Arts. 226 or 227 of the Constitution where the Court goes into the merits of the question, it cannot be doubted that where it dismisses such a petition in limine it simply refuses to exercise its powers under Art. 226 or 227 and such an order cannot bi:! said to be an order passed on appeal or as affirming the decision of the Court F immediately below. Therefore. the order of the Hi$h Court in the present case is not a judgment of affirmance. [427F, 427AB]

Abdul Majid v. lawahar Lal, (1904]

I.L.R. 36, All. 350, Karsondas Dharamscy v. Gangab.'1ai. [1907] I.L.R. 32 Born. 108, Sunder Kaer v. Chandishwar Prasad Singh l.L.R. 30 Cal. 679 Promotho Nath Roy v. W. A. Lee, [1919] 33 C.L.J. 128, Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar A.I.R. 1942 Madi. 357.

Purnendu Nath Tagore v. Kanai/al Ghoshal (1948] 2 Col. 202, Ganesh Prasad v. Mr. Makhna A.l.R. 1948 All. 375 and Oulabchand G v.~ Kudilal A.l.R. 1952 M.B. 149, referred to.

(2) The order of the Deputy Director of Consolidation is not. clear and since the High Court dismissed the appellants petition in limine the reasons which Jed the High Court to dismiss are not known. Hence it is necessary that the High Court should deal with the petition before it and dispose of it by a proper order. [427 GH]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1641 of 1969.

From the Judgment and decree dated 13-9-1967 of the High Court of Allah'.tbad in Civil Writ Petition No. 2334 of 1963.

R. H. Dhebur, D. v. Desai and P. C. Kapur for the appellant.

G. N. Dixit, Uma Mehta, S. Bagga and Raj Kumar Mehta, for the Respondent.

s. KALAWATI v. DURGA PRASAD (Aillgiriswami, J.)

The Judgment of the Court was delivered by

ALAGIRISWAMI, J.-The appellants is the widow of one Goverdha, ndass. The 1st respondent is her husband's brother.

Goverdhandass and the 1st respondent are the sons of one Bhojraj. The appellant claimed 11 plots in Khata No. 97 as land _in which she was entitled to be a joint tenant along with the 1st respondent. She aJso claimed certain other plots on the ground that they were acquired by B Bhojraj and therefore it was joint Hindu family property and she was entitled to inherit those shares also as a co-tenant along with 1st respondent. She .succeeded in respect of the 11 plots in Khata No. 97 but failed in respect of the other .Plots.

The matter first came up before the Consolidation Officer and thereafter on appeal before the Settlement Officer and finally before the Deputy Director, Consolidation in revision.

Against the order of the Deputy Director, Consolidation she filed a petition before the High Court of Allahabad under Article 226. The High Court dismissed it in limine but granted a certificate under Article 133(1) (a) of the Constitution.

A preliminary objection was raised on behalf of the 1st reswndent that the certificate granted was not valid because the judgment of the High Court was one affirming the judgment of the Deputy Director, Consolidation. One of the questions on which the decision of this question. depends is whether the Deputy Director, Consolidation as well as the other two officers exercising power under the U .P. Consolidation of Holdings Act, 1953 are Courts. However, in the view we take of the decision of the High Court that it is not a judgment of affirmance this question does not arise..

The High Court dismissed the writ petition in limine.

It did not go into the merits of the ca, se or decide it even within the limited scope of its powers under Article 226 or 227 of the Constitution even if not as a Court of Appeal exercising its powers under section 96 or 100 of the Code of Civil Procedure.

It simply refused to exercise its powers under those Articles of the Constitution.

Unless the. Court had applied its mind to the case and after consideration affirmed it the order cannot be said to be one of affirmance.

It may be useful to consider earlier decisions in this connection.

In Abdul Majid v. Jawahir Lal (1904 ILR 36 All. 350) the question G of the st, arting point of limitation for the execution of a decree had to be decided and that question depended upon the effect of an order of the Privy Council dismissing an appeal for want of prose. cution. In that connection the Privy Council observed :

"The order dismissing the appeal for want of prosecution did not deal iudici.a, lly with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision "appealed from.

It merely re.Co!ffiised authoritatively that the appellant '.had not complied with the c01; iditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all."

SUPREME COURT REPORTS

(1975] SUPP S.C.R.

A In Karsondas Dharamsey v. Gangabai (1907 !LR 32 Born. 108) an order of the High Court refusing to admit an appeal after the period of limitation had expired was held to be not a "decree passed on appeal by the High Court" under s. 595 of the Civil Procedure Code a, nd it was held that there was therefore no jurisdiction to grant leave to appeal therefrom to the Privy Council under cl. (a) of that section.

B Tbc meaning of the words "Passed on appeal" were specifically considered and it was observed :

"The meaning of the expression "passed on appeal'" has been settled by a line of authorities, which it is right that we should follow: see Sunder Koer v. Chandishwar Prasad Singh (ILR 30 Cal. 679) and the cases there cited. And applying that interpretation to the circumstances of the e, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court."

This Bombay decision was noticed in Promotho Nath Roy V; w. A.

Lee (1919 (33) CLJ 128). But that decision differed froni the Bomb, ay decision because in that case the appeal had been admitted D and dismissed whereas in the Bombay case the appeal was not admitted at all.

In Ramaswami Udayar v. Sevu A ru Ramaflllthan Chettlar (AIR 1942 Mad. 357) it was held by a Division Bench of the Madras High Court that where an .<J, Pplication to excnse delay, by deducting 'the time taken in other proceedings in computing the time for the application for rehearing of an appeal, was dismissed E and consequently no order was passed on the application for rehea, ring the appeal, these were not orders on appeal withiti the meaning of s. 109 (a) of the Code of Civil Procedure and hence no leave could be granted.

These decisions were followed in Purnendu Nath Tagore v. Kanai/al Ghoshal (1948 (2) Cal. 202).

In Ganesh Prasad v. Mt. Makhna (AIR 1948 All. 375) however F a, n order dismissing appeal for default on account of non-prosecution was held. -to be a decision wnich affirmed the decision of the Court below. '

In Gulabchand v. Kudilal (AIR 1952 M.B. 149) it was held that the order of the Court dismissing the Special Appeal on the ground

tht no appeal lay under s. 25 of the Act was not an order which G affirmed the decision of the Court below and it WU$ observed that expression "affirms the decision of the Court immediately below" implies that the Court had dealt judicially with the decision of the Conrt below and upheld it and where the Court holds that it has no jurisdiction to entertain an appeal from the decision of the Court below and rejects the appeal, it cannot be held that the decision of

the Court below is affirmed by the rejection of the incompetent appeal.

H The principle behind the maiority of the decision is thus to the

effect~ that where an appeal is dismissed on the preliminary ground that it was not competent or for non-prosecution or for any other reason the appeal is not enterta, ined, the decision cannot be said to be a "decision on appeal" nor of affirmancc. It is only where tl1e appeal is heard and the judgment delivered thereafter the

- i

. '""

s. KALAWATI v. DURGA PRASAD (Alagiriswami, J.) 427

judgment can be said to be a judgment of a, ffirmance. Where a A party applies to the Court to exercise its powers under Article 226 or 227 of the Constitution it cannot be said that the party is exercising any right of appeal conferred on him by any statute nor is the High Court exercising any power of appeal. Whatever might be the position even in respect of petitions under Article 226 or 227 of the Constitution where the Court goes into the merits of the question, B it cannot be doubted tha, t where it dismisses such a petition in limine it simply refuses to exercise its powers under Article 226 or 227 Such an order cannot be said to be an order passed on appeal or as affirming the decision of the Court immediately below.

In this connection it may be noticed that under s .109 of the Code of Civil Procedure appeals lie to the Supreme Court from any judgment, decree or final order of a High Court where it is passed on appeal. A proceeding under Article 226 or 227 of the Constitution is not an appeal. lt is true that the right conferred by Article 133 of the Constitution, cannot in any way be curtailed by the provisions of the Code of Civil Procedure and Article 133 does not speak of a Jmlgment, decree or finaJ order passed on appeal by the High Court. All the earlier decisions of the various Courts referred to above are based on the interpretation of ss. I 09 and 110 of the Code of Civil Procedure. An order of a High Court in a petition under Article 226 or 227 would be an order in a civil proceeding of a High Court and so fall under Article 133. Where a High Court refuses to entertain such a proceeding the sa, me considerations that were applied in the earlier cases where an appeal was not judicially considered should be held applicable also on principle.

We are therefore of opinion that an order in a petition under Article' 226 or 227 dismissed in limine is not a final order in a civil pro-- ceeding for the purpose of Article 133 (!) (a) of the Constitution and is not therefore a judgment of affirmance under Article 13-3(1) F _, (a), and therefore the certificate granted by the High Court is competent.

As regards the appeal itself we must say that we have not been able to understand the order of the Deputy Director of Consolidation which was sought to be quashed by means of the writ petition. We were invited by the respondent to look into the orders of the Coiis- G olidation Officer and the Settlement Officer in order to understand the order of the Deputy Director of Consolidation.

As the order sought to be qnashed was that of the Deputy Director of Consolidation we do not feel called upon to do so. We are therefore in the dark a, s to the reasons which might have led the High Court to dismiss the appellant's petition -in limine.

We consider it necessary and proper therefore to set aside the order of the High H Court and direct that the petition be dealt with by it and disposed of by a proper order. The High Court will hear the inatter afresh and dispose it of by a reasoned order.

There will be no order as to costs.

P. B. R.

Case remanded.

S. KALAWATI

DURGA PRASAD & ANR

A. ALAGIRISWAMI

P. N. BHAGWATI

Art. 226

Art. 133(1)

Art. 226

Art. 133(1)(a)

Art. 226

Art. 133

Arts. 226

Art. 226

Article 226

Article 133(1)

Consolidation of Holdings Act, 1953

Article 226

section 96

the Code of Civil Procedure

s. 595

s. 109

the Code of Civil Procedure

s. 25

Article 226

Article 226

Article 226

the Code of Civil Procedure

Article 226

Article 133

the Code of Civil Procedure

Article 133

the Code of Civil Procedure

Article 226

Article 133

Article 133

Article 13


JAILA SINGH & ANR.

STATE OF RAJASTHAN AND ORS.

May 2, 1975

B (A. ALAGIRISWAMI, p. N. BHAGWATI AND P. K. GOSWAMI JJ.J

Raiasthan Colonisation (Rajasthan Cuna{ Proiect Pre-1955 Ten1porary Temonrs <Tovernnient Lo.nd Allot1nent) Conditions, 1971, Condition No. 3, and Raja.<; t/1an Colonisation (Allotment of Governn1e11t Land to Post-1955 Te1nporary Cultivation Lease Holders and other landless persons in the Rajasthan G'anal Project Area}_ Rules, 1971, Rules 2(1)(xiii) and 3(2)-Pennanent al!ot111cnt of land to tenants-Pre-1955 and post-1955 tenants, if forn1 different classcs-Sectior..• 15 and 15-A of Rajasthan Tenancy Act, 1955, if pro1, ide any basis for classifica1iv11.

Rajasthan Colonisation Act, 1954, Sections 7 and 28-Scope of.

The Rajasthan Colonisation (Bhakra Project Governn1ent Land Allotment and Sale) llulcs, 1955 made under the provisions of the Rajasthan Colonisation Act, 1954, came into effect on 25th December, 1955.

Under these Rules th<.: difference 1...-etween pre-1947 and post-1947 tenants is negligible.

Under he Raja<; than Colonisation (Gang Can:tl Lands Pcmanent Allotment and Sales} H.ules, 1956, the scale of allotment is uniform without any discri111ination between various classes of persons to ¥.ho1n lanU may be allotted.

Under th~ Rajasthan Colonisation (Rajasthan Can<-ll Project Government Land Allot.ral:n!

and Sale) Rules, 1967 all post-1955 temporary cultivation leases in the Colony Area were terminated nnd all the lands covered by such leases reverted tu the Government.

Jaila Singh, the appellant in Civil Appeal No. 1704 of 1974 was alloUeJ 50 bighas of 'uncommand land' in the yeal's l 956-57 and 1957-58 in the Ganganagar District of the Rajasthan State. fhe area in \Vhich the hind is situated was declared a Colonv .l\rea of the Rajasthan Canal Project under the Rajasthan Colonisation Act in 1960. Jn 1967 the Rajas.than Canal Colonisation (Rajastha11 Canal Project Government Land J\llotment and Sale) Rules. 1967 \Vere prornulgat<.Ai and applications were invited for allotn1cnt of land under those rules.

JaUa Singh's application for allotment was disposed of on 27-12-1969 by allotting:

14 bighas and 14 biswas of land on permanent basis.

Jn State v. Ranu!han.

A.i.R. 1973 Raj. 71, the latter part of Rule 16 and Rule 19(a) (iii) read with Hulc 7(x) and (xi) of the 1967 Rules \Vere struck down.

They were struck do\.vn on the ground that both the Rhakra Canal Project Rules and the Rnjasthti-n Canal Rules framed under the Act. had treated the unit of family differently and cannot therefore be justified. Thereafter two sets of rules called respectively F.aja.<; than Colonisation (Rajasth;:n Canal Project Pre-1955 Temporary Tenants (lovernmcnt Land Allotment) Conditions, 1971 and the Rajasthan Colonisation

(Allotment of Governn1cnt Land to Post-1955 Temporary Cultivation Leas~ Holders arid Other Landless Persons in the- Rajathan Canal Project Area) F, ules. 1971 were promulgated.

Applications were again invited for a1lotment cf land under the Po"t-1955 Rules and Jaila Singh \Vas allotted another 10 bighas of land. The rest of the land originally allotted to him reverted to the State.

He filed a v,.Tit petition before the Rajasthan High Court cha11cnging the Pvst-1955 Rules as violative of Article 14 of the Constitution.

Sahi Ram, the .husband of the appel1ant in Civil Appeal No. 1705 of 1974, bad been allotted 24! bighas of land for ten1porary cultivation in Rajasthan Canal Area in Ganganagar District.

He had also been allotted 12! bighas 'command land' in the rear 1952 on a permanent basis and 6 bighas and 12 biswas of 'command land" and 4 bighas and 11 biswas of 'uncommand land' for permanent cultivation.

These lands

1vcrc. included in the Colony Area of the Rajasthan Canal Project in 1960.

) ,

JAJLA SINGH v. RAJASTUAN (Alagiriswami, !.)

After the po>t-1955 Rule come into force the 24! bighao of land was ordered to be resumed on the ground that Sahl Ram was not a landless person. In the writ petition filed by the appellant, the order of resumption was challenged as discriminatory. .

In both the writ pertitions the contention on behalf of the State of Rajaathan was that, owing to the insertion of s. 15A in the Rajasthan Tenancy Act, 1955

Khatedari rights could not accrue to the tenants under s. 15 ( 1) of the said Acl and 'the possession of such tenants was given protection who were holding

'ince lS.!0-55 and thereafter upto the commencement of the Pre-1955 Condi tious by making permanent allotment under the Pre-1955 conditions".

The Single Judge of the High Court accepted this contention and upheld their validity of the Prel955. Conditions as well as the Post1955 Rules. He took the view

t11a1. the question of discrimination can arise only in respect of persons who are similarly situated, that the pre-1955 tenants cannot be said to stand on the same footing as the post-1955 tenants in asmuch as the two classes of !en(tnts came into temporary cultivation at different periOds of time and cannot be said to be similarly situated.

On appeal, the Division Bench of the High Court dismissed the appeals even at the admission stage.

These appeals have been preferred by special leave granted by this Court.

It was contended for the appellants that discrimination between the pre-1955 <ind postl955; tenants is based on the fact that (1) In the case of the former, persons having more than 25 bigbas could keep all the lands they had up to the ceiling limit and had to pay only for the land in excess of 25 bighas ; (2) E<icn among them persons having less than 25 bighas, whether below 15 er

above 15 bighag could get land to enable them to have 25 bighas and they need pay only for the excess over what they had: (3) Post-1955 tenants

could not get anything if they had over 15 bighas and hey had to pay for the land allotted to them to make up 25 bigha<;.

Allowing the appeals, HEW: There is no nexus bet\veen the pre-1955 Conditions <ind post-1955 Rules and the Rajasthan Tenancy Act which came into force on 15-10-1955.

Doth sets of ]eases had been cancelled by the relevant pre-1955 Condition and post-1955 Rules and there is no dispute that the pre-1955·1eascs cannot be

c<1:11celled while post-1955 leases could be cancelled.

The Rajasthan Tenancy

Act is not concerned with that question.

Proviso to section 15 of that Act specifically provides that no Khatedari rights shall accn1e under that section to F any tenant, to whom land is or has been Jet out temporarily in Gang Canal, Bhakra, Chambal or J awai project area, or any other area notified in that behalf by the State Government.

Admittedly the Rajasthan Canal area has been included within the scope of this proviso by a notification.

To make matters more clear section ISA also provides that the land in the Rajastban Canal area leased out on any terms Vlhatsoever shall be deemed to have been let out tempoarily within the meaning of the poviso and no khatedari rights shcill accrue or shall be deemed ever to have accrued in any such land leased out. This provision thus applies to both pre-1955 as well as post-195.5i leases.

G Beth these leases stand on the same footing and therefore do not forn1 different c1asses.

The reference to sections 15 and 15A of the Rajasthan Tenancy Act is wholly irrelevant.

Nor can it be said that the lengthy occupation of the l01nds provides any proper criterion for the distinction between pre-1955 a~~ nost-1955 tenants. There is nothing to sho\V how long be-fo're 15th October 195'

Pre-1955 tenants were given temporary le~<; es ad. in the absence of such n1ateria1, it is itnpossible to see how any drfferentiahon can be made between prc-1955 and post-1955 tenants in the matter of pem.ane!lt allotment of lnr!.

Even in 1967 when the 1967 Rules were made no d1shntron was sought to be H n1ade between pre-1955 and post-195? tenants. By that ume many_ of oost-195.~ tenants would have been in possession for about 12 Y:eur~ and 1n 1971 te)

woulcl have been in possession for about 16 years.. It 1s ~1fficult to appreciate h w it should make anv difference from the point of view of aIIotment of Jnd whether a tenant has been in occupation fc:r 16 years or 18 or 20

"\'Ca,; and why differentiation should be. made with reference. to .the date V!hen the Rajasthan Tenancy Act came into force.

The class1ficat1011 mu", t

A have a nexu; with the object sought to be achieved.

There is no such nexus in this case.

As a result Condition No. 3 of the Pre-1955 Conditions and the definition of landless person as contained in Rule 2(1) (xiii) as well as Rule 3(2) of the Pos.t-1955 Rulesarc void as they are discriminatory under Art. 14 of the Constitution and they are struck down. [435 D-H, 436A-C, 437F, 438E]

Observation : Rajasthan Colonisation Act, 1954, practically provides no gu:dance \Vith regard to the principles to be applied in the matter of allotrr1ent B of land.

[ 432F]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1704-1705 of 1974.

Appeal by special leave from the judgment and 1-8-1974 of the High Court of Rajasthan in D. B.

C Appeal No. 415 and 237 of 1974.

order dated Civil Special

G. L. Sanghi S. R. Srivastava, Manmohan Mridul and Badri Dass Sharma for the appellants (in C. As. Nos. 1704-1705/74).

Niren De, Attorney General of India, S. T. Desai, G. Kashliwal ,

D and S. M. '/ain, for the respondents (in C. As. Nos. 1704-1705/74).

J. B. Badachanji and K. J. John, for the intervener (In C. As. Nos. 1704-1705/74).

The Judgment of the Court was delivered by

ALAGIRISWAMI, J. These appeals raise the question of the E validity of certain rules made under the Rajasthan Colonisation Act,

1954. The facts necessary for the decision of this case are as follows.

Jaila Singh, the appellant in Civil Appea.l No. 1704 of 1974 was allotted 50 bighas of 'uncommand lane;!' in the years 1956-57 and 1957- 58 in the Ganganagar District of the Rajasthan State. The are.a, in which F the land is situate was declared a Colony Area of the Rajasthan Canal Project under the Act in 1960. In 1967 the Ra.iasthan Colonisation (Rajasthan Canal Project' Government Land Allotment and Sale) Rules, 1967 were promulgated and applications were invited for allotment of land under those rules. Jaila Singh's applica.tion for allotment was disposed of on 27-12-1969 by allotting 14 bighas and 14 biswas of land on permanent basis. These 1967 Rules were the suh- G ject matter of certain writ petitions before the Ra.iathan High Court which ended with the decision of that Court in State v. Ramdhan (AIR 1973 Raj 71) striking down certain of those Rules. Thereafter two sets of rnlcs called respectively Rajasthan Colonisation (Rajastha, n Canal ProjeCt Pre-1955 Temporary Tenants Government Land Allotment) Conditions, 1971 and the Rajasthan Colonisation (Allotment of Government Land to Post-1955 Tempor.a, ry Cultivation Lease Holders H and Other Landless Persons in the Rajasthan Canal Project Arca) Rules, 1971 were promulgated. Applications were again invited for allotment of land under the Post-1955 Rules and Ja.ila Singh was allotted another 10 bighas of land. The rest of the land originally allotted to him reverted to the State. He filed a writ petition before the Rajasthan High Court challenging the Post-1955 Rules as violative nf Article 14 of the Constitution. He prayed that R, a, jasthan Colonisation Act. 1954 may be declared to be illegal or in the alternative A the Post-1955 Rules may be declared to be violative of Article 14 of ' the constitution and for an appropriate order in respect of the lands allotted to him.

Sahi Ram, the husband of the appellant in Civil Appeal No. 1705 of 1974, had been allotted 24 1/2 bighas of la, nd for temporary cultivation in Rajas than Canal Area in Ganganagar. District. He had also been , a, Ilotted 12 1/2 bighas of 'command land' in tile year 1952 on a permanent basis and 6 bighas and 12 oiswas of 'command land' and 4 bighas and 11 biswas of uncommand land' for permanent cultivation.

These lands were included in the Colony Area the Rajasthan Canal Project in 1960. After the post-1955 Rules came into force the 24t bighas of land was ordered to be resumed on the ground that Sahi Rum was not a landless person. In the writ petition filed by the appellant the contention~ and prayers were the same as in Jaila Singh's case. We shall deal with them at the appropriate places in so far as they relate to matters raised in the appeal.

In both the writ petitions the contention on behalf of the State of R, ajasthan was that owing to the insertion of section 15A in the Rajasthan Tenency Act, 1955 Khatedari rights could not accure to the tenants under section 15(1) of the said Act and 'the possession of such tenants was given protection who were holding since 15-10-55 and thereafter upto the commencement of the Pre-1955 Conditions by making permanent allotment under the Pre-1955 Conditions'. The various impugned rules were contended not to be discriminatory.

Justice Gupta of the Rajasthan High Co}!It who heard the two writ petitions filed by Jaila Singh and Dhapi Bai, in a batch of 340 writ petitions, upheld the validity of the Pre-1955 Conditions as well

as the Post-1955 Rules. He took the view that the question of discrimination can arise only in respect of persons who are similarly F situated, that the prc-1955 tenants cannot be said to stand on the same ., footing as the post-1955 tenants inasmuch as the two classes of tenants came into temporary cultivation at ditferent periods of time and cannot be said to be similarly situated. The fact th.flt the pre-1955 tenants had been continuously in possession for a longer period was held to > make them a separate class from the temporary cultivators who came into possession after October 15, 1955. The contention of the Rajas- G than State on the basis of section !SA of the Rajasthan Tenancy Act was a)so accepted. On appeal against the decision of Justice Gupta a Division Bench of the Rajasthan High Court dismissed the appeals even at the admission stage.

Before we proceed to consider the various contentions it is necessary to set out certain important provisions of the Act and the Rules.

The Rajastha.n Colonisation Act, 1954 came into force on 17th December, 1954. It defined 'tenant' as meaning any person holding land in a colony and including predecessors and successors-in,-interest and transferees. 'Colony' was defined as meaning any are, a to which the Act shall be applied. Section 7 of the Act reads :

"7. Issue of statement of conditions of tenancy.-

( 1) The State Government may grant land in colony to a, ny person on such conditions as may be prescribed.

(2) The State Government may issue a statement or statements of the conditions on .which it is willing to grant land in a colony to ten.a, nts.

(3) Where such statements of conditions have been issued, the ~Collector may, subject to the control of the State Government, allot land to any person, to be held subject to such conditions contained in the statement issued under sub-section (2) of this section as the Collector may, by written order declare to be applicable to the case.

( 4) No person shall be deemed to be a tenant or to have any. right or title in the land allotted to him until such a written order has been passed and he hl\S taken possession of the land with the permission of the Collector, and after possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto."

Section 28 reads :

"28. Power to make rnles.-The Stale Government may, by notificatiOn in the Official Gazette make rules grnera)ly for carrying into effect the provisions and purposes of this Act and in particular for all matters which are prescribed thereunder."

It would be noticed that there is practically no guidance provided in the Act with regard to the principles to be applied in the matter of allotment of land.

Under the provisions of that Act the Rajasthan Colonisation (Bhakra Project Government Land Allotment & Sale) Rules, 1955 were made and came into effect on 25th December, 1955.

The G extent of land which could be allotted to those cultivating Government lands since before December 31, 1947 was 50 bighas if the Joint family consists of adult male members not exceeding five and 15 bighas of additional area per additional member if the number of members is in excess of five.

In the case of those cultivating lands since after 31st December 1947 25 bighas could be allotted for a joint family consisting of three adult male members and 15 bighas H for every adult male members in excess of three. Thus the difference

betwen pre-1947 and post-1947 tenants is negligible.

Under the Rajasthan Colonisation (Gang Canal Lands Permanent Allotment and Sale) Rules, 1956 the scale of allotment is uniform without any discrimination between various classes of persons to whom land may be allotted.

Under the Rajasthan Colonisation (Rajasthan Canal Project Government Land Allotment and Sale) Rnles, 1967 all post-1955 te&· porary cultivation leases in the Colony Area were terminated and all the lands covered 'by such leases reverted to the Government.

Rule 16 reads :

"16. A joint family shall, for the purposes of existing holding and of allotment of land under these Rules, be deemed to be one person and dealt with accordingly.

No separation or partition affected after the 15th October,

1955 will be ta!cen into consideration."

 Under Rule 19 Bhakra landless persons were entitled to 15 bighas in each case ; so also landless tenants. Tenure tenants who held land less than 15 bighas in their khatas and the whole or part thereof was with a sub-tenant, not liable to ejectment, were entitled to allotment of so much of Government land as would render their khatas equal to 15 bighas.

Here again there was no discrimination in the matter of allotment of land among the various classes of persons to whom land may be allotted.

After Rules 16 and 19 read with Rule 7 (x) and (xi) were struck down bv the Rajasthan High Court, these Rules were repealed and the Pre-1955 Conditions and Post-1955 Rules were promulgated.

The Rajasthan Colonisation (Rajasthan Canal Project Pre-1955 Temporary Tenants Government Land Allotment) Conditions, 1971 came into effect on 3-2-1971.

A 'prc-1955 temporary tenant' was defined as a person who is resident of Rajasthan since before the 1st day of April, 1955 and who has been holding and been in pos session of temporary cultivation land continuously since before the 15th day of October, 1955, upto the date of commencement of these Conditions (portion not necossary for the purposes of !his case omitted). All temporary leases of Government lands of pre-1955 tempora, ry tenants were cancelled.

A temporary tenant holding more than 25 bighas of command temporary cultivation land could be allotted up to the ceiling limit, the ceiling limit being 50 bighas.

A temporary tenant holding less than 25 bighas may be allotted the land in his . possession as well as further extent of land making the -total upto 25 bighas.

In the case of persons having more that 25 bigbas no price was chargeable for allotment upto 25 bighas.

But persons having less than 25 bighas had to pay the price for lands allotted to them to make up 25 bighas, that is, land in excess of what they already had.

The effect of these provisions was, to take a concerete example, that if a man had 30 bighas of land the whole of it would be allotted to him. If he had 60 bighas of land 10 bighas will be taken away.

He will have to pay the value of the land in excess of 25 bighas.

Where a person had less than 25 bighas-whether it is 14 or 16 bighas--he will be given another 11 or 9 bighas as the case may be and he need not make any payment for the land he already had but need pay only for the land newly allotted.

Thus a person holding lands in excess of 25 bighas was at a distinct advantage in that he could keep the land in excess of 25 bighas and upto 50 bighas by paying the value only for the excess, compared to the man who had

A less than 25 bighas who could be given land upto 25 bighas.

The discrimination between the two classes is obvious ana no justification has been put forward nor can be put forward for this discrimi- ,. nation.

The Rajasthan Colonisation (Allotment of Government Land to ll Post-1955 Temporary Cultivation Leases Holders and Other Landless Persons in the Rajasthan Canal Project Area) Rules, 1971, which came into effect on 4-5-1971 described a Jandlc'5 person in r. 2(1)

(xiii) as follows :

" 'Landless Person• means a person who is resident of Rajasthan since before the 1st day of April, 1955 and is by profession a bona fide agriculturist or bona fide agricLltural labourer and whose primary source of income is agriculture.

Provided that such persou neither holds any tenure Janel anywhere in excess of 15 bighas nor is he a sub-tenant of any such land (in excess of 15 bighas) from which he is not liable to ejcctment under the provisions of the Rajasthan Tenancy ACt, 1955 (Rajasthan Act 3 of 1955) or under any other law for the time being in force in the ar.:a in which the land is situated; nor he is entitled for permanent allotment of 1 5 bighas or more land anywhere under a;; y other rules, conditions or law."

A landless person coming undr these rules could be allotted up to 25 bighas provided that if such person holds or is a sub-tcaant of any land anywhere, he will be allotted only so much Government F land as together with his existing holding does not exceed 25 bigba:;.

There is a proviso that such land shall be allotted to him only if such land is available adjacent to his existing holding or in the same village.

The result of this rule read with the definition of landless person is that if he holds land anywhere in excess of 15 bighas he will not get any further allotment.

In other words if he had 14 bighas of land he may be allotted 11 bighas whereas if he has rot G 16 bighas of land he will not be allotted any further land.

The di, .. crimination against him as against the pre-1955 tenant who had Jess than 25 bighas is apparent.

The latter will get 9 bighas even if he had already 16 bighas.

The word 'anywhere in the definition of the term 'landless person' as well as in the rule relating to eligibility for allotment has been the subject matter of some controversy but it is not necessary to resolve it for the purpose of these H cases.

The contrast between the Pre-1955 Conditions and the Post- 1955 Rules is thus apparent.

The only justification put forward on behalf of the Government before the High Court was that section 15A of the Rajasthan Tenancy Act. 1955 made a difference and the learned Single Judge of the Ra.iasthan High Court held that the length of the occupation of the lands by the pre-1955 and post-1955 tenants provided a basis for classification.

' -.

Before us the only questions argued were regarding the discrimi- A nation between the prc-1955 anc; post-1955 tenants based on the

' ---

fact that-

1. In the case of the former, persons havmg more than 25 bighas could keep all the lands they had up to the ceiling limit and had to pay only for the land in excess of 25 bighas.

2. Even among them .persons having less than 25 bighas, whether below 15 or above 15 bighas could get land to enable them to have 25 bighas and they need pay only for l11e excess over what they bad.

3. Post-1955 tenants could not get anything if they had over 15 bighas and they had to pay for the land allotted to them to make up 25 bighas.

These contentions are so substantial and the discrimination so striking and the justification aHempted so feeble that we have to hesitation in accepting them.

We have already referred to some of D them.

We are unable to see the nexus between the pre-1955 Conditions and post-1955 Rules and the Rajasthan Tenancy Act which came into force on 15-10-1955. In these cases we are concerned with the validity of the mies relating to the allotment of Government land which had been given on temporary leases to various persons whether before 1955 or after 1955.

Both sets of leases had been cancelled by the relevant pre-1955 Condition and post-1955 Rule and there is no dispute that the pre-1955 leases cannot be cancelled while post- 1955 leases could be cancelled.

The Rajasthan Tenancy Act is not concerned with that question.

Proviso to section 15 of that Act specifically provides that no Khatedari rights shal! accrue under that section to any tenant, to whom land is . or bas been let out temporarily in Gang Canal, Bhakra, Chambal or Jawai project area, ot any other area notified in that behalf by the State Government.

Admittedly the Rajasthan Canal area has been included within the scope ot. this proviso by a notification.

To make matters more clear section 15A also provides that the land in the Rajasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso earlier mentioned and no kbatedari rights shall accrue or shall be deemed ever to have accrued in any snch land leased out as aforesaid.

This proviion thus applies to both pre-1955 as well as post-1955 leases. Both these leases stand on the same footing and therefore do not form different classes.

The reference .to sections 15 and !SA of the Rajasthan Tenancy Act in deciding the questions that arise in these cases is therefore wholly irrelevant.

Nor are we satisfied that the length of occupation of the lands provides any proper criterion for the distinction between pre-1955 and post-1955 tenants.

There is nothing to show

A how long before 15th October, 1955 pre-1955 tenants were glvcn temporary leases and in the absence of such material, it is impossible to see how any differentiation can be made between pre-1955 and post-1955 tenants in the matter of permanent allotment of land.

Even in 1967 when the 1967 Rules were made no distinction was sought to be made between pre-1955 and post-1955 tenants.

By B that time many of post-1955 tenants would have been in possession for about 12 years and in 1971 they would have been in possession for about 16 years.

It is difficult to appreciate how it should make any difference from the point of view of allotment of lctnd, whether a tenant has been in occupation for 16 years or 18 or 20 years and why differentiation should be made with reference to the date when the Rajasthan Tenancy Act came into force.

The 1967 Rules, no C doubt, provide for cancellation of all post-1955 temporary cultivation leases but in actual effect it made no difference.

Under those Rules persons eligible for allotment were landless tenants. Landless tenant' wa' ddined as 'a bona fide agriculturist who is a resident of Rajasthan since before l st April, 1955 and who cultivates or can reasonably be expected to cultivate land personally but who docs not D hold any land in his own name or in the name of any member of his joint family and who is not a sub-'tenant of any land, owner or land .holder holding tenure khatas under proprietary, mauroosec or khatedari rights and is not liable to ejectment under the provisions of the Rajasthan Tenancy Act, 1955 or under any other law for the time being in force in the area in which the land is situate or who E holds only a fragment or land measuring 15 bighas'.

No distinction was made between pre-1955 and post-1955 tenants in the matter of allotment.

Provided an agriculturist had less than 15 bighas he was entitled to allotment of land.

The allotment was also to an extent sufficient to make up 25 bighas of 'command land'. Herc again no distinction was made between post-1955 and pre-1955.

F tenants.

Nor was there any difference in the sale price to be paid h,· the different classes of allottees.

In State v. Ramdhan (supra) only the latter part of Ruk 16 and Rule 19 (a) (iii) read with Rule 7 (x) and (xi) were struck down.

Rule 7 (x) reserved land for allotment to landless tenants belongin~ , to Scheduled Castes and Scheduled Tribes upto l lakh acres_ to be allotted at the rate of 15 bighas per family and Rule 7 (xi) for G other landless tenants upto 50,000 acres to be allotted at the rate of

15 bighas per family. They were struck down only on the ground that both the Bhakra Canal Project Rules and the Rajasthan Canal Rules had been framed under the Rajasthan Colonisation Act, 1954 but they treated the unit of family differently and cannot therefore be justified.

By the same reasoning no distinction can be made between pre-1955 and post-1955 tenants by R)lles made under the same Act.

One of the arguments attempted before us, though it was not pleaded before the Rajasthan High Court, was that in the case of the post-1955 te.nants a smaller area had to be allotted bcame of the pressure for land. We have already pointed out that the difference in the period of.occupation between the pre-1955 and post-1955 tenai, ts

could not be of such an extent as to justify allotment of larger extent of '°

' '

JAJI.A SINGH v. 8AJASTHAN (Alagiriswami, J.)

land to the pre-1955 tenants than to the post-1955 tenants nor for the discrimination even among the pre-1955 tenants between those holding more than 25 bighas and those holding less than 25 bighas. If the Rajasthan Government wanted to act fairly by all classes of residents of Rajasthan they could very well have omitted portions in the 1967 Rules found objectionable by the Ra.iasthan High Court and therefore struck down and there would have been nothing more to say.

The striking down of Rules 16 and 19 of the 1967 Rules did not necessitate the promulgation of two wholly new sets of rules. In that case only 15 bighas of land would have been available to each allottee and there would have been no discrimination between one class of persons and another. There would also have been greater extent of land availabh: for allotment to a larger number of persons at the rate of 15 highas each. One of the justifications pleaded on behalf of the State of Rajasthan for the definition of the landless tenants in the post-1955 Rules as persons holding less than 15 bighas of land was that 15 bighas was a viable unit. In tha:t case it is all the more reason why all allottces whether pre-1955 or post-1955 should get 15 bighas.

We are unable to see any justification for treating the pre-1955 and

post-1955 tenant~ differently. What prompted the Rajasthan State D to do so in 1~71 when they did not do so in 1967 and the decision of the Rajasthan High Court in regard to the 1967 Rules did not compel them to do so is beyond our comprehension. We are not able to accept the contention that they belonged to two different classes.

By that standard any arbitrary difference could be fixed and it could be said that persons who get temporary leases before that date belonged to one class and the persons who had been allotted land after that date formed another class.

We have already shown that the Rajasthan Tenancy Act has no relevance at all to the decision of this question and therefore 15-10-1955, the date on which it came into force, has no relevance to the classification attempted by pre-1955 and post-1955 tenants.

The classification must have a nexus with the object sought to be achieved.

We can see no such nexus in this case.

We thus find that the definition of the 'landless tenants' as well as the rules for allotment in the post-1955 Rules as compared to the pre-1955 conditions are discriminatory and unjustifiable.

• As regards the discrimination in the matter of payment of price

between the pre-1955 and post-1955 tenants, it was urged on behalf G of the State of Rajasthan that this was not urged in the writ petitions of the two appellants and so cannot be gone into by this Court.

The question of price has been raised in the two writ petitions but it was on a different aspect and not on the question that the pre- 1955 tenants did not have to pay any price while post-1955 tenants had to do so.

But it has been argued before the learned Single Judge, and he has dealt with it apparently 'Yithout any <;>bjectio~ being H taken to it on the part of the State of Raiasthan.

Th!S question of price is not mentioned as one of the matters which were raised before the Division Bench which heard the appeal.

We find it difficult to conceive of the appellants having given up that plea befo(e the Appellate Bench having argued it before the learned Single Judge.

It is urged on behalf of the State of Rajasthan that there may be reasons

A why pre-1955 tenants are treated differently in the matter of payment of price. If there were any, they were not put forward before the learned Single Judge.

But as materials regarding it are not available before us, we propose to say nothing about it.

But we may point out that, as the rules stand, there seems to be some discrimination in the matter of price between pre-1955 and post-1955 tenants, in that pre- B 1955 tenants, who hold land exceeding 25 bighas, have to pay nothing for land upto 25 bighas, while post-1955 tenants, who hold land less than 15 bighas, have to pay price for land which may be allotted to them so as to make up 25 bighas.

We are mentioning this only so that the State may look into the matter of price and set it right to avoid any discrimination.

There seem to be no difficulty at all in C all this because none of the tenants, whether they are pre-1955 or post-1955 tenants, have any vested rights.

It is the duty of the State to treat fairly all classes of tenants in the Rajasthan Canal Area whether pre-1955 or post-1955 tenants .

. No arguments were advanced regarding the validity of the Act and we think rightly so.

The arguments were confined to Condition D 3 and proviso to Condition 9 of pre-1955 Conditions and Rules 2(1)

(xiii) and 3(2) of the post-1955 Rules.

In effect appellants had no objection to paying for extra land to .be allotted to them. They object only to the discrimination against them as compared to the pre-1955 tenants.

E In the result we hold that Condition No. 3 of the pre-1955 Conditions and the definition of landless person as contained in Rule 2(1) (xiii) as well as Rule 3(2) of the Post-1955 Rules are void as they are discriminatory under Article 14 of the Constitution and they are struck down.

It is open to the State to frame new rules applying to both pre-1955 and post-1955 tenants without any discrimination between them.

F The appeals are allowed to the extent indicated above.

The appellants will get their costs from the respondents, hearing fee one set. • Appeals allowed.

V.M.K.

\ .

JAILA SINGH & ANR

STATE OF RAJASTHAN AND ORS

B (A. ALAGIRISWAMI

p. N. BHAGWATI

P. K. GOSWAMI JJ

Rajasthan Tenancy Act, 1955

Rajasthan Colonisation Act, 1954

Sections 7 and 28

Rajasthan Colonisation Act, 1954

Article 14

s. 15A

Rajasthan Tenancy Act, 1955

s. 15

Rules and the Rajasthan Tenancy Act

section 15

sections 15 and 15A

Art. 14

Rajasthan Colonisation Act, 1954

AIR 1973 Raj 71

Article 14

Article 14

section 15A

Rajasthan Tenency Act, 1955

section 15(1)

SA of the Rajasthan Tenancy Act

Colonisation Act, 1954

Section 7

Section 28

section 15A

Rules and the Rajasthan Tenancy Act

section 15

section 15A

sections 15

SA of the Rajasthan Tenancy Act

Rajasthan Tenancy Act, 1955

Article 14


. 1'

' '

, •

...

JOINT COMMERCIAL OFFICER, DIVISION II,

MADRAS-2 ETC. v.

SPENCER & CO. ETC. ETC.

May 2, 1975

(V. R. KRISHNA IYER, R. S. SARKARIA AND A. C. GUPTA, JJ.J

Madras General Safes Tax Act, 1959, Sections 2(q), 2(r) and 3(1)---:- an Dealer in foreign liquor and other goods-Tax paid under s. 21-A of Madras Prohibitiaft Act, 1937 by purchaser if part oj taxable turnorer of the dealer . •

The respondents-assessees are dealers in foreign liquor, among other goods.

They have been assessed to, sales tax as dealers on sales or purchases of other C goods under s. 3(1) of the Madras General.Sales Tax Act, 1959. They filed Writ Petitions in the High Court challenging certain orders (relating to. diffe rent assessment years, ranging from 1959 to 1964-65) made by the assessing authority under the Madras General Sales Tax Act, 1959 proposing to re determine the taxable turnover of the respondents by including the sale-price of foreign liquor which, it was alleged, had escaped assessment. The High Court Cirected the sales tax authorities not to include in the. assessable turnover the tax paid by the respondents under s. 21-A of the Madras Prohibition D Act, 193i. These appeals have been filed on the basis of the certificate of fitness granted by the High Court, ·

It was contended for the appellants that the amount coilected by the assessees by way of sales tax from the purchasers were part of their total turnover and as much liab1e to be taxed under s. 3(1) of the Act.

Rejecting the contention and dismissing the appeals,

HELD: It is clear from s. 21-A of the Madras Prohibition Act. 1937 that the sales tax which the section requires the seller of Foreign liquof to collect from the purchaser is a tax on the purchaser and not on the seIJer.

Jt is a tax on the price of the liquor and that tax is to be paid by the purchaser. Section 21-A makes the seller a collector of tax for the Government, and the amount collected by him as tax under this section cannot therefore be a part of bis turnover. Under the Madras General Sales Tax Act, 1959 tb.e dealer has a statutory duty to collect the sales taxpayable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, the said amount does not cease to be the price for the goods altho"Qgh "the price is expressed as X -plus purchase tax". Bnt the amounts collected by the. assessees concerned in these appeals unde4' a statutory obligation cannot be a part of their taxable turnover under the Act. [442A-D] .

M/s. George Oakes (P) Ltd., v. State of Madras, [1962] 2 S.C.R. 57Q, State of Kera/a v. Ramaswamy Iyer and Sons, [1966] Suppl. S.C.R. 582 and Delhi Cloth and General Mills Ltd. v. Commissioner of Sales Tax, Indore, [19711 Suppl. S.C.R. 945, held not applicable.

Paprica Ltd. and Anr. v. Board of Trade, [1944] 1 All. E.R. 372, referred to.

CML APPELLATE JURISDICTION : Civil Appeals Nos. 2005 to 2016 H of 1970.

From the Judgment and Order dated the 10th April, 1969 of the Madras High Court in W.Ps. Nos. 2787 to 2790 of 1966 and 2988 to 2991 of 1966 and T.C. Nos. 102, 104 & 195 of 1967.

!OSC/75-29

A S. Govind Swaminathan, K. Venkataswami. N. S. Sivam, A. V.

Rangam and A. Subhashini, for the appellants.

T. A. Ramachandran, for the respondents (In C.As. Nos. 2005- 2008 & 2013-2016/70).

Vineet Kumar, for respondent No. 1 (Jn C.A. Nos. 2009-2012/ 70).

The Judgment of the Court was delivered by

GUPTA, J.-These twelve appeals arise out of a common judgment of •the Madras High Court disposing of the writ petitions filed by the respondents in which they challenged certain orders of the assessing C authority under the Madras General Sales Tax Act, 1959 proposing to redetermine the taxable turnover of the respondents by including the sale-price of foreign liquor which, it was alleged, had escaped assessment.

The High Court directed the sales tax authorities not to include in the assessable turnover the tax paid by the respondents under sec. 21-A of the Madras Prohibition Act, 1937.

In these appeals, D brought on certificate .of fitness, the correctness of the High Court's decision is questioned by the sales tax authorities. The appeals have three different assessees as respondents and relate to different assessment years conceniing each assessee, ranging from 1959-60 to 1964- 65.

The assessees are dealers in foreign liquor, among other goods.

They have been assessed to sales tax as dealers on sales or purchases of other goods under sec. 3(1) of the Madras General Sales Tax Act,

1959. Sec. 3(1) is the charging section providing generally that a dealer whose total turnover for a year is not less than the specified amount, shall pay a tax for each year at the specified rate. 'Turnover' is defined in sec. 2(r) ofl the Act. The relevant part of the definition is as follows :

" 'turnover' means the aggregate amount for which goods are bought or sold, or supplied or distributed, by a dealer, either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration, ......... "

G 'Total turnover' is defined in sec. 2(q) of the Act as "the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax".

The question is whether the 'sales tax' collected by these assessees under sec. 21-A of the Madras Prohibition Act, 1937 can be treated as part of their total turnover. Sec. 21-A, so far as it is relevant for the present purpose, is in these terms : H

"Every person or institution which sells foreign liquor- ( a) x x x (b) x x x shall collect from the purchaser and pay over to the Government at such intervals and in such manner as may be pres-

JT. COMMERCIAL OHICER v. SPENCER & co. (Gupta, J.) 441

cribed, a sales tax calculated at the rate of eight anuas in

A the rupee, or at such other rate as may be notified by the Government from time to time, on the price of the liquor so sold."

Counsel for the appellants contended relying on several decisions of this Court to which we shall presently refer, that the amount collected B by the assessees by way of sales tax from the purchasers were part of their total turnover anct as such liable to be taxed under sec. 3 (1) of the Madras General Sales Tax Act, 1959. In M/s. George Oakes

(P) Ltd. v. State of Madras,(') this Court considered the question whether inclusion of the amounts collected by the appellants in that case as sales tax under the Madras General Sales Tax Act, 1939 wa~ valid. The expression 'turnover' in the 1939 Act meant, as it does in the 1959 Act, aggregate amount for which goods are bought or sold, whether for cash or for deferred payment or other valuable consideration. This Court observed :

" ........ when a sale attracts purchase tax and the tax is passed on to the consumer, what the buyer has to D pay for the goods includes the tax as well and .the aggregate amount so paid would fall within the definition of turnover ......... so far as the purchaser is concerned, he pays for the goods what the seller demands, viz., price even though it may include tax.

That is the whole consideration for the sale and there is no reason why the whole amount paid to E the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover."

A similar view was taken by this Court in State of Kera/a v. Ramaswamy Iyer & Sons.( 2 ) This wa§_il case under the Travancore Cochin General Sales Tax Act, 1958. Here also the decision turned on lite, definition of 'turnover' which is similar to the definition of the term I'

in the Madras General Sales Tax Act, 1959. The position was further explained in Delhi Cloth and General Mills Ltd. v. Commissioner of Sales Tax, Indore,( 3 ) which. was a case under the Madhya Pradesh General Sales Tax Act, 1958.

The relevant provisions of this Act appear to be similar to those of the Madras General Sales Tax Act,

1959. Stating that the liability to pay tax under the Act is that of G the dealer, Hegde J. speaking for the Court said that the Act did not confer "any statutory power on the dealer to collect sales tax as such from any class of buyers. . . . Unless the price of an article is con. trolled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer_ to include in the price the tax payable by him to the Government. If he does so, he cannot be said to be collecting the tax payable by him H from his buyers. .The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for

A saying that the dealer is entitled to collect the tax payable by him fronr his buyer or seller.

Whatever collection that may be made by the dealer from his customers same can only be considered as valuable consideration for the goods sold".

It is clear from sec. 21-A of the Madras Prohibition Act, 1937 B that the sales tax which the section requires the seller of foreign liquor to collect from the purchaser is a tax on the purchaser and not on the seller.

This is what makes the authorities on which counsel for the appellants relied inapplicable to the cases before us. Under sec. 21-A the tax payable is on the price of the liquor and that tax is to be paid by the purchaser, the sellr is required to collect the tax from fhe purchaser which he has to pay over to the Government.

Sec.

C 21-A makes the seller a collector of tax for the Government, and the amount collected by him as tax under this section cannot therefore be a part of his turnover.

Under the Madras General Sales Tax Act, 1959 the dealer has no statutory duty to collect the sales tax payable by him from his customer, and when the dealer passes on to the customer the amount of tax which the former is liable to pay, D the said amount does not cease to be the price for the goods although

"the price is expressed as X plus purchase tax".(1 ) But the amounts collected by the asscssees concerned in these appeals under a statntory obligation cannot be a part of their taxable turnover under the Madras General Sales Tax Act, 1959.

The appeals are dismissed with costs : one hearing fee.

E Appeals dismissed.

V.M.K.

('~Ltd. and Anr. v. Board of Trade, [194411 All. E.R. 372.

SPENCER & CO. ETC. ETC

V. R. KRISHNA IYER

R. S. SARKARIA

A. C. GUPTA, JJ

Madras General Safes Tax Act, 1959

Sections 2(q), 2(r) and 3(1)

s. 21

Madras Prohibitiaft Act, 1937

s. 3(1)

Sales Tax Act, 1959

Madras General Sales Tax Act, 1959

s. 21

s. 3(1)

s. 21

Section 21

Madras General Sales Tax Act, 1959

[1962] 2 S.C.R. 57

sec. 21

Madras Prohibition Act, 1937

sec. 3(1)

Madras General Sales Tax Act

Sec. 3(1)

sec. 2(r)

sec. 2(q)

sec. 21

Madras Prohibition Act, 1937

Sec. 21

sec. 3

Madras General Sales Tax Act, 1959

Madras General Sales Tax Act, 1959

sec. 21

Madras Prohibition Act, 1937

sec. 21

Madras General Sales Tax Act, 1959


TARA SINGH ETC. ETC.

STATE OF RAJASTHAN AND ORS.

March 19, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KRISHNA IYER, JJ.]

.. Rajasthan Service Rules, r. 244 (2 )-Scope of-Compulsory retireme/lt of Government Servants-if violates fundamental rights-De/egatidn of power to collectors, if excessive.

All the petitioners were compulsorily retired from Government service under r. 244(2) of the Rajasthan Service Rules. In all the cases the orders stated that compulsory retirement was being done in public interest. In petitions under art. 32 of the Constitution the petitioners contended (i) that compulsorv retirement under r. 244(2), which does not prescribe the minimum age of compulsory retirement is not only removal within the meaning of art. 311 but is also unguided discretionary and discriminatory power and (ii) that permanence invol?es right to continue in service till one attains the age of superannuatien.

Dismissing the petitions.

HELD : (1) The right to be in public employment is a right to hold it -according to rules. The right to hold is defensible according tO' ules. The rules speak of compulsory retirement. There is guidance in the rules as to when such compulsory retirement is made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any char.ge& of inefficiency or incompetency the Government passes orders of compulsory retirement.

The Government servant in such cases does not lose the benefits which a government servant has already earned. These orders of compulsory retirement are made in public interest. This is a safety valve of making such orders so .that no arbitrarines or bad faith creeps in. [1009 E-Gl

In appendix 9 to Rajasthan Service Rules, Vol. II the power to retire a Government servant after completion of 25 years of service in the case of ministerial service is onfemd on the appointing authorities.

In the present case the appointing authority is the Collector. The content of the power is not changed by any amendment of the rule. Therefore, the delegation is valid. There is no stigma in any of the impeached compulsory orders of retirement. [1009 G-HJ

(2) (a) Rule 244(2) as it stands now does not specifically mention that an aider is to be passed in the public interest. 'The notes to the rule indicate that the right to pass an order of compulsory retirement is to be exercised only against the Government servant whose efficiency is impaired and against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. The notes further say that it is not the intention to use this rule as a financial weapon, that is to say, that the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds. [1007 G-1008 Al

(b) The notes are promulgated with the rules in exercise of legislative power.

The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion.

The real purpose of the notes is that wlten rules are silent the notes wil! fi!L up gaps. [1008 A-Bl

(c) The notes which are appended to rules are to aid not only in applying the rules but also in interpreting the true import of the rules. [1009 A-Bl

Shyam Lal v. The State of U.P. [1955) 1 S.C.R. 26 and T.C. Shiracharana H Singh v. The State of Mysore, A.LR. 1965 S.C 280 referred to.

(d) Although the Government cannet supersede statutory rules by a?ministrative instructions yet if the rules framed under art. 309 of the Constitullon are

silent on any particular point, the Government could fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these insu-uctions will govern the cond!ti-Ons of service. [I 009 CJ

In the present case the notes are part of the rules because they are for the guidance of the parties. They are no1 inconsistent with the rules but are intended to fill ilp gaps where the rules are silent.

The only question here is that formerly the rules said that compulsory retirement would be made in public interest but the present rule does not contain that part of the old rule. The deletion of that part of the rules did not mean that the orders of compulsory retirement were not made in public interest. The notes to the rules make explicit what is implicit in the rules. (1009 D-E]

Union :af India v. K. P. Joseph, [1973) 2 S.C.R. 752, refurred to.

ORIGIN.AL JURISDICTION : Writ Petitions Nos. 1253, 1353, 1448, 1898 and 270 of 1973

Petitions under Article 32 of the Constitution of India.

L K. Garg and S. C. Agrawal, for the Petitioners (in WP~. 1253, 1448 and 1898/73.) ·

S. K. Mehta, K. R. Nagaraja and M. Qamaruddin for the Petitioners in W.Ps. Nos. 1353 and 270/73.

Maya Rao, for Respondent (in W.P. No. 270/70).

L. M. Singhvi, A. G. Rajasthan, in W.Ps. Nos. 1253 & 1898/73 only) and S. M. Jain for the Respondents, (in rest of W.Ps.)

E The Judgment of the Court was delivered by

RAY, C.J.-These writ petitions challenge the validity of orders of compulsory retirement. In writ petition No. 1253 of 1973 the petitioner was served with an order dated 30 March, 1973.

The order was as follows,:-

"Whereas Shri Tara Singh Patwari has completed 25 years of qualifying service and whereas the State Government ts satisfied that it is in public interest to dispense with farther service of the said Government servant.

Now, therefore, in pursuance of the delegation made under Rule 244(2) of the Rajasthan Service Rules vide Fiance

Department Order No. F.1(34)FD-A (Rules/62) dated 13.12.63 the undersigned hereby gives notice to the said Shri Tara Singh requiring him to retire with effect froni the date of the expiry of 3 calendar months fromthe service-of this llotice on him and further orders the compulsory retirement of Shri Tara Singh with effect from the said date.

Sd/- Collector,

Gangarragar."

In writ petition No. 1353 of 1973, the petitioner was served with an identical order dated 30 March, 1973.

In wtit titian No. 1448 of 1973 the petitioner was served with an order dated 28 April, 1973. The order was in terms similar tq that in writ petition No. 1253 of 1973 except that the order did not :state that "the State Government is mtisfied that it is ia public interest to dispense with th_e service of the petitioner". i In writ petition No. 1898 of 1973 the petitioner was served '.with an order dated 4 November, 1973 where also the order did not :state that the compulsory retirement was made by the Government on being satisfied that it was in public interest.

In writ petition No. 270 of 1973 the petitioner was served with an order dated 30 March, 1970: The order w'as similar to writ petition No. 1253 viz., that the petitioner completed 25 years of qualifying service and the retirement was in public interest.

Counsel on behalf of the petitioners contends that the orders are bad because they vio!ate Articles 14, 19(1)(f), 31 and 311.

It. is said that Article 14 is violated because there i's no guidance as to who will be selected and O'a what basis the selection will be made

for. compulsory retirement. The impeached orders are said to violate Article 19 (1) (f) because it is an unreasonable restriction on the right D to continue until the age of superannuation which is 55 years. It is emphasized that there is a right to continue as long as one is physically fit The orders of compulsory retirement are challenged to violate . Article 31 because it is deprivatioi,1 of property without authority of law. .Lack of authority of law is said to be infraction of Articles 14 and 19.

The orders are also said to infringe Article 311 because these are made to remove persons from Government service.

Counsel for the petitioners also contended that. the Government delegated power under the old rules and, therefore, the orders were bad.

It was said in writ petition No. 1253 of 1973 that the order was made by the Collector pursuant to delegatioi, i under Rule 244.(2) of the Rajasthan Service Rules under order dated 13 December, 1963.

The rules were amended in 1993 and again in 1972 and there was no F delegation under 'the amended rules which .governed the parties.

Rule 244(2) of the Raj•asthan Service Rules as it stood prior l.o the 1963 and 1972 amendments is set out in the decision in Ganga Ram v. State of Rajasthan (1). Rule 244 and the notes thereto are si:t out hereunder:-·

"(1) A Government se.rvant may retire froni service any G time after eompleting 30 years qimlifying service provided that he shall give in thil> behalf, a notice in writing to the appropriate authority, at least 3 months before the date <Yn which he wishes to retire.

(2) Government retains an absolute right to . retire any Government servant after he has completed 25 years quali- H fying service without giving any reasons and no claim to special compensation on this account will be e~1tertaiii.ed. ---------

(~) I.L.R . .1961 Raj. 371.

 This right will not be exercised except when it is in public interest to dispense with further service of a Government servant.

Notes

1. The right conferred by r. 244(2)°is intended to be exercised only against a Government .servnt whose efficiency is. impaired, but against whom it is not desirabe to make fqrmal choarges inefficiency or who has ceased to be fully efficiP-nt but not to such a degree as to warrant his retirement on compassionate allowance. It is not the inte1ation to use this rule as a financial weapon, that is to say, the provision.

C would be used only in the case of Government servants who are considered unfit for retention on perso1aal as opposed tofinancial grounds. ·

2. Compulsory retirement under this rule does not attract. the provisions of cl. (2) of Article 311 of the Constitution becanse such retirement is not conceived as a penalty but as D the exercise of a right reserved to Government of retiring a Government servant after he has served for a certain length of time.

Accordingly, the procedure laid down in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, for formal proceeding against Government servants before removing them from service is 'aot meant to apply to

uch cases." E

I 0 0 5'

 Rule 244 was amended by notification dated 31 August, 1963 uswill appear from Rajasthan Code Vol. I-Part B corrected up to 3t December, 1967 Fourth Edition.

The amended rule is as follows:-

"244(1) A Government servant may; after giving at least three month~' previous notice in writing to the Govern- F ment, retire froip. the service on the date m1. which he completes 30 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice.

Provided that a Government .servant of Class IV can seek retir.ement only if he has completed 30 years of qualifying service. ·

"(2) The Government may, after giving him at least three mQl,1th' previous notice in writing require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or attains the age of ?5 years or on any date thereafter to be specified in the notice :

Provided that a Government servant of Class IV can only be required to retire on the date on which he completes 25 years of qualifying service or on a~1y date thereafter."

Rule 244 was again amended by notification dated 19 August, 1972.

Rule 244 as amended is set out hereunder :-

"244( 1) Government servant may, !lfti<r giving at least three months previous notice in writing to the Government, _retire from the service 0~1 the date on which he completes

30 years of c1ualifying service or attans the age of 55 years or on any date thereafter to be specified i111 the notice :

Provided that a Government servant of Cfass IV can seek retirement only if he has completed 30 years of qualifying .service.

( 2) The Government may, after giving at least three months, previous notice in writing or by payment of three months pay and allowances in lieu of such notice require a Government sevant to retire from the service on the date on which he completes 25 years of qualifying service or on any date thereafter':.

The notes which were appended to Rule 244 before the amcndml"nt <lated 31 August, 1963 remained •as notes to Rule 244 after both the

amendments dated 31 August, 1963. and 19 August, 1972. The notes wer.: promulgated along with the Rules by the Rajpramukh under Article 309.

Couse! for the petitioners contended as follows.

The job of the permanent employee is not oi,1Jy property but perhaps the only property.

Permanence involves the right to continue in service until one_ attains the age when one renders oneself not physically fit to discharge one's duty.

The proper age of suprannuation must be fixed on the scientific basis of the normal expectation of life.

Rule 244 (2) does not prescribe a minimum age for compulsory etirement and thus permits compulsory retirement of a permanent government servant long before the permissible age of superannuatio\1.

This is not only removal within the meaning of Article 311 but is also an unguided discretionary and discrimin'atory power.

With regard tci writ petition No. 1898 of 1973 it was said that the -order was passed though the petitioner had not completed 25 years of government service and the order cast stigma on the conduct ahd integrity of the petitioner.

Jn T. C. Shivacharana Singh v. The State of Mysore( 1) rule 285 of the Mysore Civil Service Rules 1958 which confered power on the Government to retire compulsorily a Government servant in public

-(l) A. I. R. 1965 s.c-:-280~-

interest oa his completing twenty five years of qualifying service or attaining fifty years of age, though the age of normal superannuation under rule 95 (a) was fixed at fiftyfive years was upheld on the ground that the rule laid down a reasonably long period of qualifying service.

This Court in .R. L. Butail v. Union of India(•) held that there are two exceptions to the protection afforded by Article 311 (2).

First, where a permanent public servant is asked to -retire on the ground tat he has reached the age of superannuation which is reasonaoly fixed.

Second, where he is compu!orily retired under rules which prescribe the normal age of superannuation and provide a reasonably long period of qualifyi1ag service after which alone compulsory retirement can be

ordered.

Article 311 deals with termination of service by way of punishment.

ln R111ail's(1) case Fundamental Rule 56(j) confers power on the Government to pass an order to retire a Government servant after he has attained the age of 55 years if the Government is of the opinion that it is in the public interest to do so.

This Court in Union of India v. Col. J. N. Sinha(:!) said that if the authority bona fide formed the opinion to pass an order of retirement

the correctness of the opinion could not be challenged though the aggrieved party could contend that the opinion was formed on collateral grounds or was an arbitrary decision.

In Sinha's(2) case this Court said that compulsory retirement is not taking any penal action.

An order of compulsory retirement is really passed after taking into consideration the rights of the Government servant on the one band and the interest of the public which ordinarily coincides with the interest of Government on the other.

It is also established that an order of compulsory retirement does not deprive the Government servant of benefits earned till the age of his retirement.

An order of retirement is really passed on the basis of interest of administrative efficiency.

Rule 244(2) as it stands now does not specifically mention that an order is to be passed in the public interest. The notes to the rule indicate that the right to pass iJ.n order of compulsory retirement is to be .exercised only against the Government servant whose efficiency is impaired and against whom it is not desirable to make formal charges of

inefficiency or who has ceased to be fully efficient but not to such a Jecrree as to warrant his retirement on compassionate allowance.

The "' notes further say that it is not the intention to use this rule as a financial

(l) [197i'J 2 s.c.R. s~. (2~ f!971] 1 S.C.R. 79L

weapon, that. is to say, that the provision should be used only in tho case of Government servants who are considered unfit for rcention ~'11 :personal as opposed to financial grounds. The notes are promulgated with the rules in exercise of legislative power.

The notes are mad.: contemporaneously with the rules.

The function of the not.:s is to provide procedure and to control discretion.

The real purpose of 1he .notes is that when rules are silent the notes will fill up gaps.

This Court in Shyam Lal v. The State of U.P.( 1) CO!J-Sidered Articl.:· -465-A aild Note-1 appended thereto in the Civil Service Regulations relating to the retiring pensions of officers. Article 465A inter alia stated "A retiring pension is also granted to an ofticer who is required by Government to retire after completing twentyfive years of service or more". In Shyam Lal's(I) case Note 1 which was appended to Article 465-A was not only referred to but relied upon.

Note 1 stated "Government retains an absolute right to retire any officer after he has completed 25 years without giving any reason and no claim to special compensation on this account will be entertained. Tbe note further added by amendment later on "The right will not be exercised except when it is in public interest to dispense with the further service of an officer".

Orie of the contentions in Shyam Lal's(l) casewas that Note 1 was , repugnant to Article 311 of the Constitution. This Court did not acc-:pt that contention. This Court said the purpose of Note 1 is not to confer on the Government any new right to retire compulsorily an ofikcr -0n completion of twenty five years of service but that it is intended to

-erve as a rernjnder that the Government has such a right which it means to retain .. The reason is that one retains only what one already possesses.

The word "retain" shows that it is not a fresh right.

The right to retire compulsorily is dorlved from Rule 4 which cvnfel'f':cl on the Government the absolute right to retire an officer who completed twentyfive years service. Article 465-A was based on Rule 4.

In Shivaclwrana Singh'se) case the order of compulsory retirement was challenged on the ground that note 1 to Rule 285 itf the Mysore Civil Service Rules was not valid.

This Court held that the note applied to all government servants and was not open to challenge either under Article 14 or Article 16. The note was given effect to because'the note required that tlie_government servant against whom an order of compulsory retirement was proposed to be passed must have completed -either 25 years of active service or attained 50 years of age.

(I) [1955]1S.C.R.26.

(2) A.LR. 1965 S.C. 280.

The rr"son why we refer to tkse two decisions in Shyam Lat's( 1) and Shivac/iarana Singh's(~) cases is that notes which are appended to rules .are of aid not only in applying the ru:es but also in interpreting the true import of the rules. ·

Jn Union of India v. K. P. Joseph (3) this Court considered the dkct of a Government order.

Under that order certain benefits would become applicable to certain persons who completed a number of wars of qualifying service.

Brother Mathew, speaking 'tor the Court. said that although the Government cannot supersede statutory rules bv administrative instructions yet if tht:. rules framed undt:r Article 309 of thr.

Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructlons not inconsistent with the rules already framed and these instructions will govern the cunditions of service.

In the present case, the notes arc part of the rules because they arc for the guidance of the authorities. They are not inconsistent with the rules but are intended to fill up gaps where the rules are silent.

The only question here is that formerly tqe rules said that compulsory retirement would be made in public interest but the present rule does not contain that part of the.old rule.

The deletion of that part of the ruie does not mean that the orders of compulsory retirement are not made in public intcrct. The notes to the rule make explicit what is implicit in the rules.

The right to be in public employment is a right to hold it according to rules. The right to hold is defeasible according to rules. The rules speak of compulsory re:iremcnt.

There is guidance in the rules as to when such compulsory retirement is made.

When persons complete 2 5 years of service and the efficiency of such persons is impaired and

yet it is desirable not to bring any charge of inefficiency or incompetency, the Government passes orders of such compulsory retirement: The Government servant in such a case coes not lose the benefits which a Government servant has already earned.

These orders of compulsory retirement are made in public interest.

This is the safety valve of making such orders so that no arbitraritll!SS or bad faith creeps in.

1n Appendix 9 to the Rajasthan Service Rules Vol. II the power to ri:tire government servant after cotnpletion of 25 years of service is in the case of ministerial service (gazetted and non-gazetted post) conferred on the appointing authorities.

In the present case, the appointing authority is the Collector.

The cntent of the powe.r is .not c?anged by any amendment of the rule.

Therefore, the ddegation is valtd.

(1) [1955) 1 S.C.R. 26.

(2) A. l.R. 1965 S.C. 280.

(3) [1973] .2 S.C.R. 752.

1here is no stigma in any of the impeached orders of compulsory retireme.nt. Counsel for the petitioners said that the order in writ petition No. 1898 of the 1973 was passed in the background that the peti-· tioner outlived his utility to Government. The order does not say so.

The order docs not contain any stigma. It was also said that he was not in continuous employment for 25 years.

The petitioner alleged his stage of service should be counted from l April, 1961. The facts alleged by the State are that the petitioner was appointed as Assistant Cashier with effect from 5 December, 1942. He was a minor at that time.

He attained 18 yea.rs of age on 4 December, 1946. He completed his qualifying service of 25 years on 4 December,

1971. He has been in continuiJus service tor 25 years.

For these reasons we are of opinion that the order of compulsory retirement which are challenged do not violate Articles 14, 19, 31 and

311. The writ petitions are dismissed. Parties will pay and bear their own costs.

P.B.R Petitions dismissed.

L 564 Sup. CI175-2500-20-!2-75-GIPF.

TARA SINGH ETC. ETC

STATE OF RAJASTHAN AND ORS

March 19, 1975

A. N. RAY, C.J.

K. K. MATHEW

v. R. KRISHNA IYER, JJ.

Rajasthan Service Rules

art. 32

art. 311

Rajasthan Service Rules

[1955) 1 S.C.R. 26

art. 309

[1973) 2 S.C.R. 752

ORIGIN.AL JURISDICTION

Article 32

Constitution of India

L K. Garg

S. C. Agrawal

S. K. Mehta

K. R. Nagaraja

M. Qamaruddin

Maya Rao

L. M. Singhvi

A. G. Rajasthan

S. M. Jain

RAY

30 March, 1973

Tara Singh Patwari

Tara Singh

4 November, 1973

30 March, 1970

Articles 14, 19(1)(f), 31 and 311

Article 14

Article 19

Article 31

Articles 14 and 19

Article 311

13 December, 1963

Article 311

31 August, 1963

3t December, 1967

Rajpramukh

Article 309

Article 311

Mysore Civil Service Rules 1958

Article 311

Article 311

Article 465A

Shyam Lal's(I

Article 465

Shyam Lal's(l

Article 311

Article 465

Shivaclwrana Singh'se

Article 14

Article 16

Shyam Lat

Shivac/iarana Singh's(~

Mathew

Article 309

[1955) 1 S.C.R. 26

Articles 14, 19, 31 and

311


SHER MOHAMMAD @ SERU

THE STATE OF WEST BENGAL January 8, 1975

[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Maintena1we of ll!ternal Security Act (26 of 1971), s. 3(4)-Communication of District Magistrate's order by State Government to Cemral Government before approval by State Government-If sufficient compliance with statuJory requirement.

Section 3 of the Maintenance of Internal Security Act, 1971, indicates that the State Government mav directly issue all order of detention or, if it is done by a lesser authority, approve of such detention order as provided.

Section 3(4) obl(gates the State Government to communicate, within 7 days of the order of detention it makes or approves, that fact to the Central Go,·- ctoment, together with the grounds and other relev11nt particulars. The pro cedural mandate is inviolable exc:ept on pril of the order being avClided.

Jn the present case, the order of detention was 'made by the Dt. Magistrate on November 21, 1972 and the order wa:; approved by the State Government on December 2, 1972. The order was however communicated to the Central Oovemment on December 1, 1972.

HELD : There was no strict compliance with . statutory formalities and since there has been ao, infringement of the procedural safeguard, the order of detention is invalid. [155H-156Al

(11) The communication to the Centml Government by the State Oovcrn mcnt of its upproval was not with'n 7 days after its approval, as required by s. 3(4), because, the approval by the State Government was onl1 a clay after

the communication to the Centrul Government. (1$50]

(b) If what Is communicated is only the order of the D!strict Magistrate. this was not suffidcnt compliance with the statutory requirement, nnd ,\t further was also beyond the 7 days' period (155 OHJ

ORIGINAL JURISDICTION : Writ Petition No. 522 of 1974.

Petition under Article 32 of the Constitution.

ff. s. Marwah for the petitioner.

S. C. Majumdar, G. S. Chatterjee and Sukumar Basu for the respondent.

KRISHNA IYER, J. The detenu petitioner, challenges his detention 011 various rounds but Shri H S. Marwah, appearing as amicus curiae,

has raised big contentions and small, some of which do not merit consi- (; dt-1'ation a.nd others need not be deialt with since, on a short point, the petition must succeed.

The scheme of the Marntenance of Internal Security Act, 1971 (Act No. 26 of 1971) (hereinafter called the MISA, for short) is in keeping with Art. 27 of the Constitution and emphasizes the various stages at which there will be consideration of the need for the deten- H tion by different authorities, such .as the District Magistrate, the State Governm<:nt oand, ultimately, the Cefttral Government. For thr effective exen:ise of this power a scheme has been built into the statute.

SHER MO~MMAD v. WEST BENGAL (Krishna Iyer,/.) 155

We are concerned at present with the power to direct release of the detcnu. We may extract the provision here :

14 (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may. at any time, he revok~ or modifiea-

(b) notwithstanding that the order has been made by a

Sate Government, by the Cdatral Government." .

With a view to posting the Central Government with th6 ':detention. nm! the grounds therefor, s. 3(4) proyides thus : '

"3. Power to make orders detaining certain persons.

( 4) When any order is made or approved by the State Government u,1der this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particul11rs as in the opinion of the State Government have a bearing on the 1,1ecessity for the order." (emphasis, ours) ·

A fair reading of s. 3 indicates that the State Government maY directly issue an order of detention or, if it is done by a lesser a1Jthority, approve of such detention order as provided in the statute. Subs. (4) or s. 3, which we have extracted, obligates the State Government to communicate, wihin seven days of the order of cletention 1t makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relcvr:int particulars. Even •assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to the Central Governme1,1t within the time specified.

This procedural mandate is inviolable except on peril of the order being voided.

In the present case it is obvious that the detention order wa~ made on November 21, 1972 by the District Magistrate and approved by the , State Government on December 2, 1972. It is curiGus that on the State's own showing the communication to the Central Government in compliance with s. 3 ( 4) of the MISA has been made on December 1, 1972. This date is beyond seven days of the District Magistrate's order and it could not have been in compliance with the seven days' spell after the approval by the State Government, that having been done only a day after the alleged communication to the Central Government. It is thus plain that the State Government before H . the approval itself was made. Secondly, if what it communicated was the order of the District Magistrate, it was not sufficient compliance with the statutory requirement. Moreover, it was beyond the seven days' period.

156 SUPREME COURT REPOR'l'S [1975J 3 s.c.R.

In short, there has been an infringement of the procedural safeguard. This Court has, in several rulings, held that the liberty of the citien is a priceless freedom, sedulously secured by the Constitution. Even, so, during times of emergency, in compliance with the provisions of the Constitution, the said freedom may be curtailed, but only in strict compliance with statutory formalities which are the vigilant concern of the Courts to enforce.

We have pointed out how in the present case there has been a failure on the part of the State Government to comply \Vith s.3 ( 4).

Jutiicial enginring prevents breaches of constitutional .dykes protecting fundamc:ntal freedoms.

The order of detention is invalid and the <letenu is liable to b~ released.

The rule is made absolute.

Petition allowed.

V. P. S.

SHER MOHAMMAD @ SERU

THE STATE OF WEST BENGAL

January 8, 1975

V. R. KRISHNA IYER

R. S. SARKARIA, JJ.

s. 3(4)

Section 3

Section 3(4)

November 21, 1972

December 2, 1972

December 1, 1972

s. 3(4)

Article 32

s. Marwah

S. C. Majumdar

G. S. Chatterjee

Sukumar Basu

KRISHNA IYER

H S. Marwah

Art. 27

Cefttral Government

section 21

General Clauses Act, 1897

Central Government

s. 3(4)

s. 3

s. 3

Central Governme1,1

s. 3

SUPREME COURT REPOR'l'S [1975J 3 s.c.R.


K. K. WAHI & ORS

THE GENERAL MANAGER, N. RLY. & ORS.

January 10, 1975

[A. N. RAY, C.J., H. R. :KHANNA AND P. K. GoswAMr, JJ.J

/?'1illl'ay Establishment Code-Paragraph 216-Scopc of.

15 7

The nine petitioners before the High Court were selected for the post of computers and were empanelled. After a few months the panel wa" 'ancelled. In a writ petition under art. 226 of the Constitu.tion the petitioners contended that there. were no procedural irregularities or defect' in the selection and as such the cancellation of the panel was improper. The

High Court held that since there were only four vacancies, only five persons could be selected for the panel after taking into account 25 per cent unforseen vacancies and rejected the contention of the petitioners that work-charged short term vacancies should also have been taken into account.

Dismissing the appeal.

HELD: The High Court was right in holding that work-charged short term vacancies were not such as should be said to arise due to normal wastage during the currericy of the panel. Vacancies arisillg due to normal wastage during the currency of a panel are such as could generally be foreseen because they occur on account of retirement of those at present holding the pas ts or for other similar cause.

A short term va:ancy for a work-charged job cannot

b~ aid to arise due to normal wastage.

[159C] ·

C!Vll APPELLATE JURISDICTION : Civil Appeal No. 65~ o( 1972.

Appeal by Special Leave from the Judgment & Order dated the 14th July, 1971 of the Delhi High Court in L.P.A. No. 44 of 1971.

B. R: L. Iyengar, S. K. Mehta, K. R. Nagaraja and M.

Qamaruddin for the appellants.

I'. P. Rao and GirLh Chandra, for the respondents.

KHANNA, J. This appeal by special leave by K. K. Wahi and two others is directed against the judgment of the Delhi High Court affirming on appeal the decision of the learned single Judge whereby petition under article 226 of the Constitution of India filed by nine petitioners, including the three appellants, to challenge an order about the cancellation of a penal by the Railway Board was only partly allowed.

The Senior Personnel Officer, Northern Railway noti!.lccl on May 11, 1970 the names of nine writ petitioners as having been selected for the posts of computors in the grade of Rs. 335-485.

Prior . to that date, four of the petitioners were officiating as computors on ad hoc basis. The fifth petitioner was offic:iating as head draftsman and the remaining four petitioners were working as draftsmen. The p0st of computer was a selection post. The procedure for filling of such

158 SUPREME COURT l, l.EPORTS

[1975] 3 S:C.R.

a post is given in paragraphs 213 to 216 of the Indian Railway Establishment Manual.

Pmagraph 216, which is material for our purposes, reds as under :

"216. After the competent authority has accepted lhc rccommend'ations of the Selection Board, the names of the candidates selected will be notified to the candlclatc:;.

A Panel once approved should normally not be c:m.; dled or ameaded. If after the formation and announcement of the panel with the approval of the competent autl1onty, it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to Cl!.l\ltel or amend such a panel, this should be done after obtai11in1~ the approval nf authority next higher than the one tint approved the panel."

The Senior P.::rsoi, mcl Oft1cer notified on Octob.:r 30. 1970 th~ rnncellat10n of the r;•anCI relating to the nine petitiOlcrn b) the Railway Board.

Fcdmg aggucved against the order of the Railway Board, the nine petitioners filed writ petition in the High Court praying (or the issuance of a writ for quashing th'l order dated Octooer 30, 1970. It was urged 01,1 behalf of the petitioners that the power to cancel the panel cJuiu be exercised under paragraph 216 reproduced abow it it was fo1Jnd that there were procedural irregularities or other defects.

There was, it was further submitted, n.o procedural irregularity or other defoct in the selection of the petitioners and as such thi: cancellation of the ouhcl was not proper.

As a,11ai11st that, it was stated on behalf of the railwav administration that there had be1~11 m-occdu1•a\ irregularities and other defects in the selection of the peti1ioncrs for the panel. The cancellation of the panel was in the circumstances state.ti to be 11Ul improper.

It wa:;; not disputed before the learned single Judge that there were only four vacancies when applications for the selection of the panel were invjted on May 21, 1969. In view of those four vacancies and 25 per cent for unforeseen vacancies, only five of the petitioners, it was held, could be selected for the panel. The contention nn behalf of the pf:titioners that, in considering the number of vacancies for the selection of panel, workcharged short-term vacancies should also have been taken into account as they constituted anticipated vacai,1cies was rejected.

In the result the learned single Judge qU'ashed the order for cancellation of the panel in so far as it related to five out of the nine petitioners. The cancellation order was, however, upheld in respect of the remaining four petitioners including the three appellants.

On cross appeals having been fileu by the appellants and the railway adm'inistration, the Divisio1,1 Bench of the High Courll affirmed the decision of the learned single Judge and dismissed 'both the appeals.

Before us Mr. Iyengar on behalf of the appellants has submitted that oaparl: from the vacancies which were taken into account by the

K •. K. WAHi v. G.M., N. RLY (Khanna, J.) 15 9

\ High Court, there were workcharged short-term anticipated vancancicc"

It is submitted that.' these short-term anticipated vacancies too should have also been taken into account in considering the total number of vacancies for which selection was to be made for the panel. We arc unable to accede to the above submission. According to the instructions contained in letters dated November 12, 1968 and April 30, 1969 anticipated vaC'ancies could be only those vacancies which were likely B to arise due to normal wastage during the currency of the panel. A

. panel under paragraph 217 was to be current for two years from the

date of approval by the competent authority or till its exhaustion, whichever w•as earlier.

We agree with the High Court that workcharged short-term vacancies are not such as can be said to arise due to norm11l wastage during the currency of the panel.

Vac:mcics arising due to normal wastage during the currency of a panel an: c such as can 1?enerallv be foreseen because they occur on account of the retirement of those at present holding the posts or for other similar cause. A short-term vacancy for a workcharged job cannot be said to •arise due to nonnal wastage.

The result is that the appeal fails and is dismissed, but in the circumstances without costs.

P.B.R.

Appeal dismissed.

ORS

THE GENERAL MANAGER, N. RLY. & ORS

January 10, 1975

A. N. RAY, C.J.

H. R. :KHANNA

art. 226

L. Iyengar

S. K. Mehta

K. R. Nagaraja

M.

Qamaruddin

I'. P. Rao

GirLh Chandra

KHANNA

K. K. Wahi

article 226

Constitution of India

May 11, 1970

May 21, 1969

Iyengar

November 12, 1968

April 30, 1969