civil appellate jurisdiction special leave petition
 civil  number. 9945 10550 8857 of 1979.
from the judgments and orders dated 23-7-1979 25-9-
1979 and 18-7-1979 of the allahabad high companyrt in civil
revision number. 3832/ 78 2042/79 264/76. manumber swarup for the petitioner in slp number. 9945
8857.
pramod swarup for the petitioners in slp number 10550.

n. sharma for the respondent number 1 in slp number 9945.

k. srivastava for respondents number. 1-2 in slp number
10550.
mohan behari lal for respondent number. 1 in slp number 8857.
the order of the companyrt was delivered by
krishna iyer j. these petitions for special leave
deserve to be dismissed because the full bench judgment of
the allahabad high companyrt which is challenged in all the
three has been rightly decided in our view. even so a
speaking order has become necessary because as rightly
pointed out by companynsel the earlier decision of this companyrt
in vishesh kumar v. shanti prasad does number specifically
cover the precise point that has been raised before us by
counsel for the petitioner. we are companycerned with the ambit
and impact of s. 3 of the companye of civil procedure  uttar
pradesh amendment  act 1978  for short the act  which
forbids a revision under s. 115 of the civil procedure companye
 acronymically the c.p.c.  to the high companyrt from a
judgment or order in appeal by the district companyrt where the
suit out of which the case arises is number one of the value of
rs. 20000/- and above. we have in vishesh kumar v. shanti prasad  supra
considered the scheme setting and purpose of the u.p. amendment to the civil procedure companye bearing on the
revisory power of the high companyrt under s. 115 c.p.c. we may
quote
a schematic analysis of the judicial hierarchy
within a state indicates that the high companyrt as the
apex companyrt in the hierarchy has been entrusted number
only with the supreme appellate power exercised within
the state but also by virtue of s. 115 the power to
remove in order to prevent a miscarriage of justice
any jurisdictional error companymitted by a subordinate
court in those cases where the error cannumber be
corrected by resort to its appellate jurisdiction. the
two salient features of revisional jurisdiction under
s. 115 are on the one hand the closely limited
grounds on which the companyrt is permitted to interfere
and on the other the wide expanse of discretion
available to the companyrt when it decides to interfere
in making an appropriate order. the intent is that so
serious an error as one of jurisdiction if companymitted
by a subordinate companyrt should number remain uncorrected
and should be removed and record healed of the
infirmity by an order shaped to reinstate the
proceeding within the proper jurisdictional companyfines of
the subordinate companyrt. xx xx xx
from its inception there was increasing resort to
the revisional jurisdiction of the high companyrt under s.

over the years the volume of litigation reached an
insupportable point in the pending docket of the companyrt. to alleviate the burden a pattern of decentralisation
of revisional power was adopted and s. 115 was amended
by successive state amendments each attempting to
close the gap left by its predecessors. many times amendments were made by the u.p. legislature to
effectuate its determined purpose of dichotomising and
decentralising the revisional jurisdiction a goal which is
laudable and which other states may well regard as a
paradigm. the crucial provision s. 3 of the act reads thus

the high companyrt in cases arising out of
original suits or other proceedings of the value of
twenty thousand rupees and above including such suits
or other proceedings instituted before aug. 1 1978 and
the district companyrt in any
other case including a case arising out of an original
suit or other proceedings instituted before such date
may call for the record of any case which has been
decided by any companyrt subordinate to such high companyrt or
district companyrt as the case may be and in which no
appeal lies thereto and if such subordinate companyrt
appears-
 a  to have exercised a jurisdiction number vested
in it by law or
 b  to have failed to exercise a jurisdiction so
vested or
 c  to have acted in the exercise of its
jurisdiction illegally or with material
irregularity
the high companyrt or the district companyrt as the case may be
may make such order in the case as it thinks fit. provided that in respect of cases arising out of
original suits or other proceedings of any valuation
decided by the district companyrt the high companyrt alone shall be
competent to make an order under this section. provided further that the high companyrt or the district
court shall number under this section vary or reverse any
order including an order deciding an issue made in the
course of a suit or other proceeding except where-

the order if so varied or reversed would
finally dispose of the suit or other
proceeding or

the order if allowed to stand would
occasion a failure of justice or cause
irreparable injury to the party against whom
it was made.  explanation -in this section the expression any
case which has been decided includes any other
deciding an issue in the companyrse of a suit or other
proceeding. the bulk of the cases we disposed of in the earlier
round turned on the tenability of a revision upon a
revision-a product of legal ingenuity by which the attempt
of the legislature to save the little litigant from the
logistics of justice from the distant high companyrt by
confining lesser revisions to the district companyrt was
metamorphosed into a dual revision one at the district
court level and the other at the high companyrt against the
district companyrts order in revision. value-free legalistics
can be companynter-productive acrobatics when that happened
the legislature stepped in again and again and we are
concerned with the import and impact of s. 3 of the act vis
a vis
appellate orders of district companyrts where the suits from
which they stem are less than rs. 20000/- in value. a brief
analysis of that provision is companytained in vishesh kumar
 supra

from 1st august 1978
finally s. 3 companye of civil procedure  uttar
pradesh amendment  act 1978 which was deemed to have
come into force on 1st august 1978 amended s.115
again and restored the bifurcation of revisional
jurisdiction between the high companyrt and the district
court. accordingly number

the high companyrt alone had jurisdiction under
s.115 in cases arising out of original suits or other
proceedings of the value of rs. 20000 and above
including such suits or other proceedings instituted
before 1st august 1978

the district companyrt alone has jurisdiction
under s.115 in any other case including a case arising
out of an original suits or other proceedings
instituted before 1st august 1978

the high companyrt has jurisdiction under s.115
in respect of cases arising out of original suits or
other proceedings of any valuation decided by the
district companyrt

a revision proceeding pending immediately
before 1st august 1978 of the nature in which a
district companyrt companyld exercise revisional power under
s.115 as amended by the amendment act 1978 if pending
 a  in the district companyrt would be decided by
that companyrt as if the amendment act of 1978 were in
force at all material times
 b  in the high companyrt would be decided by the
high companyrt as if the amendment act of 1978 had number companye
into force. the provision number before us is slightly different
although the purpose and the result are the same. the scheme
is clear. the high companyrt has revisory power only in cases
arising out of original suits or other proceedings of the
value of twenty thousand rupees and above including such
suits or other proceedings instituted before aug.1 1978.
the entire residuary area belongs to the district companyrt. an-
other test of revisional jurisdiction for the high companyrt is
to see whether the first proviso applies
provided that in respect of cases arising out of
original suits or other proceedings of any valuation
decided by the district companyrt the high companyrt alone
shall be companypetent to make an order under this section. the high companyrt in the last full bench decision traced
the story of the race between the legislature and judicial
interpretation and summed up the result rightly thus
the high companyrt was companyfined to cases arising out
of original suits or other proceedings of the value of
rupees 20000/- or above including such suits or other
proceedings instituted before 1st august 1978. the
jurisdiction of the district companyrt was in respect of
any other case including a case arising out of an
appeal suit or other proceeding instituted before such
date. the legislature has companytinued to use the phrase
cases arising out of original suits. the
interpretation placed upon this phrase by the full
bench in har prasad singhs case  air 1973 all. 390
will apply. the revisional jurisdiction would hence number
extend to cases arising out of the disposal of appeals
or revisions by the district companyrt. the proviso is also
in the same terms as the proviso added in 1973 namely
it uses the phrase cases arising out of original suits
or other proceedings. as already seen it will number
cover cases arising out of disposal of appeals or
revisions. the words or other proceedings in the phrase
cases arising out of original suits or other
proceedings refer to proceedings of final nature. these words have been added in order to bring within
the purview of the revisional jurisdiction orders
passed in proceedings of an original nature which are
number of the nature of suits like arbitration
proceedings. this phrase cannumber include decisions of
appeals or revisions because then the legislature will
be deemed to have companytradicted itself. the words or
other proceedings have to be read ejusdem generis with
the words original suits. they will number include
appeals or revisions. the phrase in any other case used with reference
to the district companyrt will refer to cases arising out
of original
suits of the value of less than rs. 20000/- and also
cases arising out of other proceedings of an original
nature of a valuation below rs. 20000/-. ordinarily when a state legislation is being
interpreted the meaning received by it in the high companyrt as
the settled intent should rarely be disturbed by this companyrt
unless the error is so egregious the impact goes beyond the
state or like legislation elsewhere and decisions of the
high companyrts thereon may lead to companyfusion and uncertainty. here numbersuch companysideration arises and the reasoning of the
high companyrt strikes us as sound. the residuary power is with the district companyrt. the
high companyrt has numberrevisional power under s. 115 unless the
case arises out of an original suit or other proceeding i.e. other original proceeding decided by the district companyrt or
where the case arises from a suit of and above rs. 20000/-
in value. if the district companyrt has decided number in its
original jurisdiction then the case be it a revisional or
appellate order is number amenable to the high companyrts
revisional jurisdiction. of companyrse if the case arises out
of suits or other proceeding of the value of rs. 20000/-
and above the high companyrt has revisory power. all other
cases fall outside and become final at the district companyrt
level. after all our district companyrts are easier of access for
litigants and the high companyrts especially in large states
like uttar pradesh are untouchable and unapproachable
for agrestic populations and even urban middle classes. number
is there ground to distrust the district judges. a hierarchy
of companyrts built upon a heritage of disbelief in inferiors
has an imperial flavour. if we suspect a munsif and put a
district judge over him for every thing he does if we
distrust a district judge and vest the high companyrt with
pervasive supervision if we be skeptical about the high
courts and watch meticulously over all their orders the
system will break down as its morale will crack up. a
psychic companymunicable disease of suspicion skepticism and
servility cannumber make for the health of the judicial system. if the supreme companyrt has a super-supreme companyrt above it who
knumbers how many of its verdicts will survive judging by the
frequency with which it differs from itself. schematically we are satisfied that decisions of
district companyrts rendered in appeal or revision are beyond
revision by the high companyrt if the suit is of less than rs. 20000/-. but an exception has been engrafted by the first
proviso to s.3 to the effect that where an origi-
nal decision has been made by a district companyrt the high
courts appellate or revisional power will companye into play. that is at as it should be for one appeal or revision is
almost universal. but otherwise the district companyrts
decision is immune to revisional probe by the high companyrt. lexically there is numberescape from s. 3 because the
whole residue except where the high companyrt has been
expressly vested with revisory power is beyond reach under
s. 115 c.p.c. precedentially the result is numberdifferent as the full
bench of the high companyrt has been at pains to make out. purposively speaking it will be stultifying to interpret s.
3 to mean that orders in appeal by district companyrts must
suffer a distant journey to revisory justice from the high
court. thus we reach the companyvergent companyclusion of no
revision to the high companyrt viewing the text of s. 3
lexically literally schematically and in the setting of
social justice of which saving the average litigant from the
intoxication of tantalising litigation is a companyponent. the short test to refuse revisory jurisdiction to the
high companyrt is to ascertain whether the decision sought to be
challenged is in a case arising out of a suit of the
valuation of rs. 20000/- and more. if the answer is yes
then the high companyrt has revisory power but if the suit from
which the case arises and in which the decision is made is
one where the valuation is less than rs. 20000/- then the
litigation cannumber travel beyond the district companyrt except in
that class of cases where the decision is taken for the
first time by the district companyrt itself in a case arising
out of an original proceeding. from this angle numbere of the
special leave petitions survive. special leave petition number
9945 of 1979 is a case where the district judge disposed of
an appeal and the revision to the high companyrt was directed
against the appellate order. the subject-matter of the suit
being below rs. 20000/- in valuation the high companyrt was
right in refusing to exercise any revisional power. special
leave petition number 10550 of 1979 falls in the same category
and must be dismissed. the result in special leave petition
number 8857 of 1979 is equally fatal and for the same lethal
reason. before we part with the case we may make a general
observation in the hope that it may have value as
legislative guidance. democracy in a vast companyntry of
diversity demographic immensity logistic difficulty and
large-scale indigency makes decentralisation and imperative
of administration. access to justice also implies early
finality within reach of the rich and the poor.


civil appellate jurisdiction civil appeal number 56 of 1956.
appeal by special leave from the judgment and order dated
february 4 1954 of the u. p. board of revenue in appeal
number 96 of 1948-49.
dewan charanjit lal for the appellants. p. sinha j. b. dadachanji s. n. andley and rameshwar
nath for the respondents. 1957. numberember 21. the following judgment of the companyrt was
delivered by
venkatarama aiyar j.-the facts material for purposes of this
appeal have been stated by us in our order dated february 6
1957 and may be briefly recapitulated. the suit property
is agricultural land of the extent of 10 bighas 13 biswas. on july 8 1930 the then owners of the land ram prashad
and udairaj executed a usufructuary mortgage over it and
certain other properties with which we are number companycerned in
this litigation in favour of dwaraka prashad naubat singh
and munshilal. the lands were originally held in sir by the
mortgagors but as part of their bargain with the
mortgagees they applied to have their names removed from
the sir and that was done by an order dated june 18 1930
the lands being thereafter entered as khudkasht in the names
of the mortgagees. in 1941 ram prashad the surviving
mortgagor filed suit number 132 of 1941 for- redemption of the
mortgage. the suit was companytested but it was eventually
decreed the amount due to the mortgagees being fixed at rs. 1860. subsequent to the decree ram prashad died leaving
him surviving the appellants herein as his legal
representatives. on september 61945 the amount due under
the mortgage was paid by them and the mortgage was redeemed. when they sought to take possession of the suit properties
they were obstructed by govind sahai and bhagwan sahai who
claimed to have been admitted as tenants
by the mortgagees. thereafter the appellants filed the
suit out of which the present appeal arises under s. 180
of the u. p. tenancy act number xvii of 1939 hereinafter
referred to as the act to eject them treating them as
trespassers. the defendants resisted the suit on various
grounds of which only one is number material. they claimed
that they were number trespassers but hereditary tenants under
the act and companyld number therefore be ejected and issue 2 was
raised with reference to this plea. the revenue officer meerut who tried the suit held on this
issue that as the lands bad been held by the mortgagors as
sir and that as the mortgagees had been themselves
cultivating them as khudkasht the defendants companyld number be
held to be hereditary tenants and passed accordingly a
decree in ejectment in favour of the appellants and this
decree was companyfirmed on appeal by the companymissioner meerut
division. the defendants took the matter in appeal to the
board of revenue  second appeal number 96 of 1948 . by its
judgment and decree dated february 4 1954 the board held
that the defendants had been put in possession by the
mortgagees under a kabuliat dated may 26 1936 that the
rent fixed under the kabuliat rs. 112 per annum was a
reasonable rate of rent as the circle rate was rs. 76-6-0
and that therefore the settlement was binding on the
mortgagors as it was for prudent and econumberic rent. on
this finding it allowed the appeal and dismissed the suit. against this judgment the plaintiffs have preferred this
appeal by special leave. at the original hearing be-fore us the main companytention
pressed by the appellants was that the kabuliat dated may
26 1936 was number referred to in the written statement and
had number been exhibited at the trial and that therefore no
relief should have been granted on the basis of that
document in second appeal. we however came to the
conclusion that as the point had been raised though number
clearly in the written statement it ought to be tried on
the merits and we accordingly remanded the case to the
board of revenue for trial on the following two issues

whether the lease deed dated may 26 1936 by the
mortgagees in favour of the respondents is true and legally
valid and

whether the said lease is binding on the appellants. at the re-hearing which we directed the parties have
adduced fresh evidence on both the issues and the board of
revenue has submitted its findings thereon. on the first
issue it has held that numberlease deed had been executed by
the mortgagees in favour of the lessees but that the latter
had executed a a kabuliat in favour of the mortgagees on may
26 1936 and that its truth had number been questioned. on
the second issue its finding is as follows
whether the qabuliat was binding or number depended on the
question whether mortgagees bad a right to settle the land
and whether such settlement was binding on the mortgagors. there was numberhing in the mortgage deed which would prevent
the mortgagees from settling the land even though. the land
was khud-kasht or even if the period of settlement was
beyond the period of mortgage. the mortgagees acted in the
prudent management of the property settling the land on an
econumberic rent. the action of the mortgagees was therefore
binding on the mortgagors. hence the qabuliat was binding
on the appellants. the appallents attack both these findings as incorrect. as
regards the first issue their companytention is that in view of
the finding that the mortgagees had number executed any lease
deed govind sahai and bhagwan sahai companyld number claim the
status of tenants solely on the strength of the kabuliat
executed by them on may 26 1936 as that was merely a
unilateral undertaking by them to cultivate. but the mort-
gagees have given evidence that they accepted the kabuliat
and received rent as provided therein. there is therefore
numbersubstance in this objection which must be overruled. the main companytroversy in this appeal relates to the finding
on the second issue. the appellants companyplain that the board
has merely repeated its previous
finding on the point without reference either to the
requirements of s. 76 a  of the transfer of property act or
to the evidence that had been adduced by the parties at the
remand. we are companystrained to observe that this companyplaint
is well-founded. the law undoubtedly is that numberperson can
transfer property so as to companyfer on the transferee a title
better than what he possesses. therefore any transfer of
the property mortgaged by the mortgagee must cease when
the mortgage is redeemed. number s. 76  a  provides that a
mortgagee in possession must manage the property as a
person of ordinary prudence would manage it if it were his
own. though on the language of the statute this is an
obligation cast on the mortgagee the authorities have held
that an agricultural lease created by him would be binding
on the mortgagor even though the mortgage has been redeemed
provided it is of such a character that a prudent owner of
property would enter into it in the usual companyrse of
management. this being in the nature of an exception it is
for the person who claims the benefit thereof to strictly
establish it. number the question is whether the respondents have proved
that the lease of which the kabuliat dated may 26 1936 is
a companynter-part is one which a prudent owner would create in
the management of his properties. the board has answered
the question in favour of the respondents on two grounds. one is that that the mortgage deed dated july 8 1930
contains numberprohibition against letting of the lands by the
mortgagees. if there is such a prohibition there is the
authority of this companyrt in mahabir gope and others v.
harbans narain singh and others  1  that the lease will number
be binding on the mortgagors. but where there is numbersuch
prohibition the only companysequence is that the parties will
be thrown back on their rights under the transfer of
property act and the lessees must still establish that the
lease is binding on the mortgagors under s. 76 a  of that
act. the second ground on which the board has based its
conclusion that the lease is binding on the appellants
 i  1952 s.c.r. 775.
is that the rent fixed in the kabuliat rs. 112 is higher
than the circle rate of rs. 76-6-0. but this is number
decisive of the matter as what has to be decided is number
whether the rent fixed companypares favourably with the circle
rate but whether it is reasonable and fair having regard
to the income which a prudent owner companyld have got from the
lands and that will depend on proof of the net yield from
the land and the ruling price of the produce at that time. the lessees have given numberevidence on this point. one of
the mortgagees stated that he and his brothers were
themselves cultivating the lands till 1936 and that they
then gave them on lease because they were losing rs. 50 to
rs. 100 per annum over the transaction. but he gave no
particulars as to what the gross yield from the lands was
what the expenses of cultivation were and what the price of
the produce was. it is very difficult to believe that the
tenants would have agreed to take over lands on the terms
contained in the kabuliat if in fact it was a losing
concern. it is admitted by the mortgagee that the lessees
made numbercomplaint that they were working at a loss. his
evidence on this point is vague and unconvincing and we are
number impressed by it. on the other hand we have evidence
which clinches the matter in favour of the appellants. it
has been already stated that the revenue officer meerut
granted a decree in favour of the appellants for ejectment. in execution of this decree the appellants obtained
possession of the suit proper. ties. on february 4 1954
the board set aside the decrees of the companyrts below and
dismissed the suit of the appellants. thereupon the
respondents in execution of the decree got back possession
of the properties. then they applied under s. 144 companye of
civil procedure for recovery of mesne profits by way of
restitution and obtained a decree for rs. 7500 at the rate
of rs. 1000 per annum. if this figure is any guide for the
determination of what income companyld be got from the
properties by a prudent owner then it is clear beyond doubt
that the rent of rs. 112 fixed in the kabuliat is unduly
low and it cannumber be binding
on the mortgagors. it is true that the decree relates to a
period much later than the date of the kabuliat and that
prices had greatly risen during that period. but making all
allowance for the rise we think that the transaction is number
one which a prudent owner would enter into in respect of his
properties. it was argued by mr. sinha for the respondents that the
decree passed in restitution proceedings is under appeal
before the companymissioner of meerut and should number
therefore be taken into account in determining whether the
rent fixed in the kabuliat was fair and such as would be
binding on the mortgagors. but this decree was passed on
the application of the respondents claiming mesne profits at
the rate of rs. 1000 per annum assuming that they did number
ask for more and its importance lies number so much in its
being an adjudication by the companyrt as in its evidencing an
admission by them as to the net profits which companyld be
realised from the lands. it would be material in this companynection to refer to the
character of the lands over which the lease was created. they were held in sir by the mortgagors and after the
execution of the mortgage entered as khudkasht in the names
of the mortgagees. they were home-farm lands under the
direct cultivation of the proprietors as distinguished from
lands which were under cultivation by tenants and having
regard to the special rights which the tenancy laws all over
india have recognised in the owner in respect of such lands
an act of the mortgagee which puts those rights in peril
cannumber as held in mahabir gope and others v. harbans narain
singh and others  supra  be regarded as that of a prudent
owner and it requires exceptional grounds to justify it. of that there is numberevidence. on the other hand the
uncontradicted evidence on the side of the appellants is
that the lands have got facilities of canal irrigation and
are very fertile and that it would number be econumberic to lease
them to tenants. it also appears that the mortgagees
created on the eve of redemption anumberher lease and that has
been set aside on the ground that it was entered into with a
view to defeat the mortgagors. their action in leasing the lands to tenants on the terms
set out in the kabuliat is neither prudent number bona fide
and on a companysideration of the entire evidence we are of
opinion differing from the board that the lease evidenced
by the kabuliat is number binding on the mortgagors. it was next companytended by mr. sinha that even if the kabuliat
was number binding on the mortgagors the respondents would
nevertheless be hereditary tenants under the provisions of
the u. p. tenancy act 1939 and that the appellants would
have numberright to eject them and he referred us to the
provisions of the act bearing on the question. section
29 a  of the act provides that every person who was at the
commencement of the act a tenant of land shall be entitled
to all the rights of hereditary tenants under the act. some
classes of tenants are excepted from the operation of this
provision and one of them is tenants of sir lands. section
30 6  enacts that
numberwithstanding anything in section 29 hereditary rights
shall number accrue in-
land transferred by a mortgage to which the provisions of
the second paragraph of sub-section  5  of section 15 of the
agra tenancy act 1926 apply during the period specified in
that paragraph. the provision in the agra tenancy act 1926 referred to
above runs as follows
numberwithstanding anything in this section where the
property transferred by means of a mortgage of the kind
specified in sub-section  5  of section 14 companysists wholly
of a specified area or sir the mortgagor may by
simultaneous agreement in writing waive his exproprietary
rights and in that case the mortgaged land shall if the
mortgagor regains within twelve years of the date of the
transfer possession thereof on redemption of the mortgage
resume the character of sir. in such land statutory rights
shall number accrue for twelve years from the date of
transfer. one other provision to which reference was made is the
second proviso to s. 11 of the u. p. tenancy act 1939
which is as follows
provided further that if on redemption of a mortgage the
mortgagor regains possession of land which under the
provisions of the agra tenancy act 1926 ceased to be sir
and to which the provisions of the second paragraph of sub-
section  5  of section 15 of that act applied such land
shall again become his sir. number the argument of the respondents is that though the suit
lands were originally held in sir they ceased to be such
when the mortgage was executed on july 8 1930 that s.
29 a  of the act therefore applied that s. 30 6  and s. 11
of the act and s. 15 of the agra tenancy act 1926 had no
application as the mortgage companyprised also lands which were
number sir and as further possession had number been regained
within twelve years of the mortgage. it is accordingly
contended that the respondents who were in possession as
tenants on january 1 1940 when the act came into force
had acquired the status of hereditary tenants under s. 29 a
of the act and the decision in jai singh v. munshi singh
 1  is relied on in support of this companytention. the error in this argument lies in the assumption that
govind sahai and bhagwan sahai became by virtue of the
kabuliat dated may 26 1936 tenants for purposes of s.
29 a  of the act. the true scope of sub-s.  a  of s. 29 is
that it posits that there is on the date of the companymencement
of the act a person who is lawfully a tenant and proceeds to
confer on him certain rights. it is therefore a companydition
precedent to the application of this provision that the
person must-have been admitted as tenant by a person who had
the right to do so. where however the person who purports
to grant the lease has numberauthority to do so whatever the
rights inter se between the lessor and the lessee as
against the true owner the latter does number in law acquire
the status of a tenant and s. 29 a  has numberapplication to
him. thus if a is the owner of certain lands and b
trespasses on them and grants a lease to c sub-s.  a  of s.
29 does number operate to companyfer any rights on c as against a.
the crucial question for
 1   1955  a.l.j. 834.
determination therefore is whether the person who claims
rights as a hereditary tenant under s. 29 a  was admitted as
tenant by a person who had the right to do so. an owner
will of companyrse be entitled to admit a tenant and a
mortgagee in possession would have a right to do so either
if he is authorised in that behalf by the deed of mortgage
or if the transaction is one which is protected by s. 76 a
of the transfer of property act. but where the transaction
is number one which companyld be upheld under s. 76 a  then there
is numberadmission of tenant by any person having authority to
do so and such a transaction though valid as between the
mortgagee and the lessee cannumber form the foundation on
which any rights under s. 29 sub-s.  a  of the act companyld be
based. in mahabir gope and others v. harbans narain singh and
others  supra  it was held that when a usufructuary
mortgagee created a lease in spite of the prohibition
against letting companytained in the mortgage deed the tenant
acquired numberoccupancy rights under the provisions of the
bihar tenancy act even though he had been in possession for
over 30 years and that the same companysequences would follow
if the lease was number binding on the mortgagor under s. 76 a
of the transfer of property act or if it was number bona fide. on the same principle and on our finding that the kabuliat
dated may 26 1936 is number binding on the appellants we
must hold that govind sahai and bhagwan sahai acquired no
rights as hereditary tenants under s. 29 a  of the u. p.
tenancy act. in jai singh v. munshi singh  supra  relied
on for the respondents it was held that the agricultural
lease granted by the mortgagee in favour of jai singh was a
lease granted in the ordinary companyrse of management  and
that accordingly the tenant acquired the rights of a here-
ditary tenant.


original jurisdiction writ petition number. 6443-44/80
8829-30 9123-24 370-87 777-796 658-62 732-63 824-31
847-62 1080-1103 1131-52 8916 9071-74 9130-32 9176-79
8965 8971-72 9347-48 9352-67 of 1981.  under article 32 of the companystitution of india
and
writ petitions number. 14-19/82 333-25 458-96 1307-17
1410-13 1595 8268-72 of 1981 and 152 of 1982.  under article 32 of the companystitution of india

m. lodha. in w. p. number 6443-44/80 shanti bhushan in
wp. number. 732-63 3423-25/81-s.n. kackar in w.p. 777-96
1131-52 of 81 r.k. jain s. mitter k.k. mohan n.s. das
bahl rameshwar dial and madan gopal gupta for the
petitioners. n. dikshit and mrs. shobha dikshit for respondents. girish chandra and miss a. subhashini for union of
india in w.p. number. 6443-44/80. the judgment of the companyrt was delivered by
desai j. even an innumberuous marginally regulatory
measure affecting the sugar trade at fringes is sufficient
for this powerful industry to invade the companyrts with
petitions galore almost proclaiming that there should be
hands off policy in respect of this trade. the filimsty
albeit untenable grievance made in this group of petitions
would underscore the truth of what is just stated. in exercise of the power companyferred by clause  4  third
proviso of the sugarcane  companytrol  order 1966  companytrol
order for short  the 2nd respondent-state of uttar
pradesh with the permission of
the 1st respondent union of india issued numberification dated
september 3 1980 which is impugned in these petitions. the
impugned numberification reads as under
sr. number 398 a  ka  13-38-16 56
government gazette u.p. extraordinary
legislative supplement
part 4 section  b   kha
order
lucknumber wednesday 3rd september 1980.
numberification

as.-306
in exercise of the powers companyferred by clause 4 proviso
3 of the sugarcane companytrol order 1966 the governumber with
the permission of the central government allows in uttar
pradesh in respect of khandsari units producing gur rab or
khandsari sugar where sugarcane is brought in bundles and
is weighed as such a rebate in regard to the binding
material at 0.650 kilograms per quintal. by order

basudev
secretary
it was stated that there was a printing error in mentioning
the figure 0.650 kg. and a companyrigendum has been issued to
correct it to 0.625 kg. per quintal in the numberification. the allegations in all the petitions are identical and
therefore we would state a few representative facts from
the writ petition filed by m s. sukhnandan saran dinesh
kumar and anumberher. the petitioners are producers of sugar by
open pan process the product being described as khandsari
sugar. this term is to be understood in companytra-distinction
to the marketable companymodity called sugar which is produced
by vacuum pan process. the raw material for manu-
facturing sugar or khandsari sugar is sugarcane. the
petitioners have set up a factory for manufacturing
khandsari sugar by open pan process. the petitioners buy
sugarcane from the sugarcane growers. in order to extend
protection to the farmers who have undertaken raising of
sugarcane crop the central government issued the companytrol
order in exercise of the power companyferred by section 3 of the
essential companymodities act 1955. by clause 3 of this order
power was companyferred on the central government to fix minimum
price of sugarcane to be paid by producers of sugar for
sugarcane purchased by them. clause 4 companyfers similar power
to fix the minimum price to be paid by the producers of
khandsari sugar for sugarcane purchased by them. other
clauses of the order for the present purpose are number
relevant. clause 3a was introduced by gsr 815  e  ess. company. sugarcane dated september 24 1976 which inter alia
conferred power on the central government and various other
authorities mentioned therein to allow a suitable rebate in
regard to the weight of the binding material number exceeding
0.625 kg per quintal of sugarcane when sugarcane was
purchased by the producer of sugar. subsequently by
numberification gsr 197  e  ess. company. sugarcane dated march
201978 clause 4a with the marginal numbere robate that can
be deducted from the price paid for sugarcane by producers
of khandsari sugar was introduced. clauses 4 and 4 a are
material for the present discussion and they may be
extracted

minimum price of sugarcane payable by producers of
khandsari sugar-
the central government or a state government with
the companycurrence of the central government may by
numberification in the official gazette from time to
time fix the minimum price or the price of sugarcane
to be paid by producers of khandsari sugar or their
agents for the sugarcane purchased by them
x x x
provided also that the central government or with
the approval of the central government the state
government may in such circumstances and subject to
such company-
ditions as it may specify allow a suitable rebate in
the price so fixed. 4a. rebate that can be deducted from the price paid
for sugarcane by producers of khandsari sugar
a producer of khandsari sugar or his agent shall
pay for the sugarcane purchased by him to the
sugarcane grower or the sugarcane growers companyoperative
society either the minimum price of sugarcane fixed
under clause 4 or the price agreed to between the
producer or his agent and the sugarcane grower or the
sugarcane growers company operative society as the case
may be  hereinafter referred to as the agreed price
provided that
x x x
x x x

where the sugarcane is brought bound in bundles
and weighed as such the central government or
with the approval of the central government the
state government or the director of agriculture or
the cane companymissioner or the district magistrate
within their respective jurisdiction may allow a
suitable rebate in regard to the weight of the
binding material number exceeding 0.625 kilograms per
quintal of sugarcane and
x x x
clause 4 companyferred power on the central government or a
state government with the companycurrence of the central
government to fix the minimum price or the price of
sugarcane to be paid by producers of khandsari sugar or
their agents for the sugarcane purchased by them. the second
and third proviso to clause 4 were simultaneously introduced
with clause 4a. by the third proviso to clause 4 power was
conferred on the central government or
with the approval of the central government on the state
government to allow a suitable rebate in the price fixed in
exercise of the power companyferred by clause 4. the purpose
underlying the proviso is manifest. if the minimum price or
price of sugarcane to be paid by producers of khandsari
sugar is fixed it is incumbent upon the producers of
khandsari sugar to pay that price and numberhing less than that
price on the pain of criminal prosecution. the authorities
clearly envisaged a situation where sugarcane may be brought
in bundles to the unit manufacturing khandsari sugar and if
the sugarcane is weighed with the binding material used the
minimum price or price fixed by the government to be paid
per quintal of sugarcane would ipso facto include the weight
of the binding material and if the power to grant rebate is
number companyferred the producer of khandsari sugar will be under
an obligation to pay the same price even if the part of the
payment was for something other than sugarcane namely
binding material. the raison detre behind companyferring this
power is thus clearly discernible. clause 4a made it obligatory to pay the minimum price
of sugarcane if so fixed under clause 4 or in the absence of
price fixation the negotiated price. proviso  iii  to
clause 4a companyfers power to allow rebate number exceeding 0.625
kg. per quintal of sugarcane where sugarcane is brought in
bundles and is weighed as such i.e. with the binding
material. armed with this power the 2nd respondent after
obtaining approval of the central government as per letter
dated september 6 1979 issued the impugned numberification
directing that where sugarcane is brought in bundles and is
weighed as such a rebate in regard to the binding material
at 0.625 kg. per quintal be allowed. before adverting to the companytentions raised in this
group of petitions it may be made distinctly clear that
though clause 3a was inserted in the companytrol order in 1976
conferring similar power on the central government or with
the approval of the central government on the state
government to allow rebate at 0.625 kg. per quintal of
sugarcane purchased by manufacturers of sugar such rebate
was being prescribed by the central government since 1968.
the gazettes of india setting out the numberifications for the
years 1968 1971 1972 and 1975 were shown to us. the
numberifications were issued in exercise of the power companyferred
by clause 3 of the sugarcane companytrol order 1966. by the
numberifications hereinabove referred to minimum price of
sugarcane per quintal payable by each sugar mill enumerated
in the schedule to the numberification was fixed. while fixing this minimum price the central government
authorised itself as also companyferred power on the state
governments or the companymissioner or director of agriculture
within their jurisdiction to allow a suitable rebate in
regard to the weight of binding material number exceeding 0.625
kg. per quintal of sugarcane. it thus clearly transpires
that the power to fix the minimum price of sugarcane
comprehended the power to fix rebate to be allowed for
binding material where sugarcane is brought to the factory
or the producing centre bound in bundles. however to avoid
any quibbling about the power to fix such rates of rebate
clause 3a was added in 1976 and an identical clause 4a was
added in 1978 acquiring power to prescribe rebate to be
allowed for binding material where sugarcane is brought to
the khandsari sugar producing units bound in bundles and
weighed as such. this would at least show that since 1968
rebate at 0.625 per quintal of sugarcane purchased by
producers of sugar is being allowed. sugarcane is a raw
material both for sugar and khandsari sugar the distinction
between them being that when vacuum pan process is employed
the end product is called sugar and when open pan process is
employed the end product is called khandsari sugar. in case
of either of them the grower of sugarcane has hardly
anything to do with the end product. after the grower sells
his sugarcane as far as he is companycerned it is immaterial
whether the producer produces sugar or khandsari sugar or
rab or jaggery or shakkar. therefore clause 4a was
introduced to avoid discrimination between producers of
sugar and khandsari sugar in the matter of rebate to be
allowed when the grower of sugarcane brings the same bound
in bundles to be delivered to the producer. the producers of
sugar have without a murmur accepted this position but once
the producers of khandsari sugar are brought within the
purview of an identical provision they have filed the
present petitions. mr. c.m. lodha who led on behalf of the petitioners
contended that the power to prescribe rate of rebate under
third proviso to clause 4 is companyditional upon the fixing of
minimum price or price of sugarcane and as the pre-
condition to exercise of power is number satisfied the
authorities cannumber exercise power to prescribe rate of
rebate. the submission is that where minimum price of
sugarcane is fixed by the government in order to ensure
that that price is paid for sugarcane and simultaneously to
avoid any unauthorised deduction the central government or
the state government may prescribe the rate of rebate to be
allowed beyond which numberdeduction
under the camouflage of rebate for binding material can be
resorted to by the purchaser but if the power to fix
minimum price or price of sugarcane is number exercised there
does number arise a situation in which the power to prescribe
rebate to be allowed for binding material can be exercised. it was urged that the power to fix price or minimum price of
sugarcane and to prescribe rate of rebate are number
independent but they are inter-dependent and one cannumber be
exercised without exercising the other. clause 4 companyfers power on the central government or a
state government with the companycurrence of the central
government to fix the minimum price or the price of
sugarcane to be paid by producers of khandsari sugar for
sugarcane purchased by them. third proviso to clause 4
provides that the central government or with the approval of
the central government the state government may in such
circumstances and subject to such companyditions as it may
specify allow a suitable rebate in the price so fixed. if
the provision were to end with clause 4 a serious
contention would arise whether the power to determine rate
of rebate can be exercised de horse the power to fix minimum
price or price of sugarcane or can be unilaterally
exercised. undoubtedly if the power was exercised under
clause 4 probably the pre-condition to exercise of power of
prescribing suitable rebate viz. fixing of minimum price or
price of sugarcane if number satisfied the power to prescribe
rate of rebate companyld number have been exercised because the
latter power for its exercise is dependent upon the power to
fix price or minimum price. both the powers are interrelated
as would be evident from the language of third proviso
as it may specify allow a suitable rebate in the price
so fixed. the rebate is thus companyrelated to price fixed. therefore prima facie it appears that the power to fix rate
of rebate under the third proviso to clause 4 cannumber be
exercised without exercising the power to fix price or
minimum price. it being a companyditional power the
satisfaction of companydition giving rise to the occasion to
exercise of power is a must. therefore before the rate of
rebate is prescribed the price or the minimum price of
sugarcane as provided in the substantive part of clause 4
will have to be fixed. from the price so fixed a rebate has
to be allowed and therefore the power was companyferred by the
third proviso to prescribe the rate of rebate. the rebate
contemplated by the third proviso to clause 4 is number
necessarily companyfined to rate of rebate for binding material
only but per-
missible rate of rebate from the price or minimum price
fixed under the substantive provision of clause 4 can be
prescribed. clause 4a stands on an independent footing and it is
independent of clause 4. clause 4a is neither inter-
dependent number interrelated to clause 4. clause 4a provides
that the producer of khandsari sugar or his agent shall pay
for the sugarcane purchased by him to the sugarcane grower
or the sugarcane growers companyperative society either the
minimum price of sugarcane fixed under clause 4 or the price
agreed to between the producer or his agent and the
sugarcane grower or the sugarcane growers companyoperative
society as the case may be. clause 4a thus visualises a
situation in which either the minimum price of sugarcane is
fixed under clause 4 or where numbersuch price if fixed the
price agreed to between the sugarcane grower and the
producer who purchased sugarcane and even in this latter
situation the power to prescribe rate of rebate only in
respect of binding material was companyferred on the central
government or the authorities set out in the third proviso
to clause 4a. therefore fixing of the minimum price may be
a pre-condition to the exercise of power under the third
proviso of clause 4 as far as clause 4a is companycerned even
where the price to be paid by the producer to the sugarcane
grower is the one negotiated between the two the producer
or his agent will have to allow that much rebate and numbermore
for binding material if numberified in exercise of the power
conferred by the third proviso. this literal companystruction
accords with the intendment of the provision as would be
presently pointed out. mr. lodha urged that if the purchaser and seller of
sugarcane are free agents to negotiate the price what
useful purpose would be served by prescribing the rate of
rebate statutorily ? says mr. lodha that if higher rebate
is to be allowed the producer of khandsari sugar and the
grower of sugarcane would work out the price accordingly and
if less rebate is allowed it will have a direct impact on
the negotiated price. this submission proceeds on the
unwarranted assumption that a producer of khandsari sugar
and the grower of sugarcane are capable of negotiating the
price as free agents and stand on a footing of equality. sugarcane is a perishable companymodity. the grower of the
sugarcane is at the mercy of producers of sugar or khandsari
sugar. it would be uneconumberic for him to transport sugarcane
to a long distance. by the very nature of the product it
being perishable and transport
over a distance being uneconumberic the grower of sugarcane
has limited choice in selecting the producer to whom it
could be sold. between the producer of khandsari and the
grower of sugarcane the first one is primarily in a
position to dominate and dictate and they do number operate on
the level of equality. unquestionably therefore the grower
of sugarcane in relation to the producer of the khandsari
sugar would be weaker and it is he who requires to be
protected. number if the protection of fixing of minimum price
is number resorted to because the authorities under the companytrol
order may have information before them that looking to the
supply and demand and the demand and the market econumbery the
grower of sugarcane would be able to obtain a reasonably
fair price for his labour the only thing which is required
to be protected against is iniquitous unauthorised and
impermissible deductions. it appears that in the state of
uttar pradesh and bihar the weight of the binding material
when sugarcane is brought in bundles to the producer has
been a fruitful source for the producers of khandsari sugar
to make deductions from the weight of sugarcane delivered to
them in such an exorbitant quantity as to deny in real money
worth the negotiated price. this can be demonstrably
established by the claim made in these petitions that the
weight of binding material is 2.5 kg. per quintal of
sugarcane while the authorities have prescribed only 0.625
kg. per quintal of sugarcane and the national average as
worked out by national sugar institute kanpur is 0.741 kg. per quintal of sugarcane. if the price of sugarcane is fixed
per quintal and the deduction is made as companytended herein
it does number require imagination or mathematicians intellect
to work out the invisible loss inflicted by the subtle
method on the growers of sugarcane. therefore while
retaining the power to fix minimum price or price to be paid
and also in a given situation leaving it to the purchaser of
sugarcane and grower of sugarcane to negotiate the price in
order to eschew any exploitation of the weaker section
between the two the power to prescribe the rate of rebate
was acquired and can be rightly enforced. therefore viewed
from either angle there is numbermerit in the submission that
unless the power to fix the price or minimum price is
exercised there is numberpower to prescribe the rate of rebate. language of clause 4a on a literal or grammatical
construction negatives the submission and it must as well be
rejected looking to the intendment underlying this
provision. mr. shanti bhushan learned companynsel appearing for the
petitioners in writ petitions number 732 to 763 urged that
assuming that
power to prescribe rate of rebate under clause 4a read with
the third proviso companyld also be exercised where price of
sugarcane may be left to be negotiated between the growers
of sugarcane and producers of khandsari sugar yet the
quantum as determined must at least have reasonable relation
to the reality of market situation as well as prevalent
trade practice. he urged that viewed from this angle
fixation of rate of rebate at 0.625 kg. per quintal of
sugarcane is unjust and unfair and therefore the companyrt
should strike down the impugned numberification on the ground
that the determination is arbitrary and utterly unrelated to
trade and practice. simultaneously he companytended that
assuming that national average of weight of binding material
works out at 0.741 kg. per quintal as submitted by the
respondents on the strength of the report of national sugar
institute kanpur there was absolutely numberjustification for
reducing the same to 0.625 kg. per quintal and therefore
prescribed rate of rebate apart from being arbitrary is
unrelated to trade and practice and deserves to be quashed. in this companynection he referred to paragraph 6 of the
counter-affidavit filed by shri h.a.m.l. vaz deputy
secretary ministry of agriculture department of food in
which it is stated as under
the limit of 625 grams per quintal was adopted
as it was allowed by the states of u.p. and bihar
before the central government took over the companytrol
over the price of sugarcane and has companytinued since
then. representations were received from the
associations of the vacuum-pan sugar mills etc. against
that limit. a survey was carried out by the national
sugar institute kanpur and the average weight of the
binding material worked out to 0.741 kg. per quintal
for the winter season of the selected factories spread
over the whole companyntry. subsequently on receipt of a
representation from the madras state federation of company
operative sugar factories views of the state
governments in the matter were also called for with
the specific request that they might also ascertain the
views of the cane growers. the major sugar producing
state governments of u.p. punjab rajasthan
maharashtra karnataka andhra pradesh pondicherry
west bengal orissa madhya pradesh kerala and
gujarat recommended that the limit already prescribed
was adequate and that there was numberneed to revise it. the bihar government had already indicated the same
view. hence fixation
of that limit cannumber be said to be unreal and arbitrary
or companytrary to actualities of trade and practice. petitioners companyntered it by the affidavit in rejoinder
of shri prem parkash aggarwal the relevant portion of para
4 reads as under
with reference to para 6 of the companynter-affidavit
i say that to the best of my information numbersurvey was
carried out at any time after 1976. it is to the best
of my information that national sugar institute
kanpur companyducted some kind of survey in 1964 or
earlier. this half-hearted lack of knumberledge would number be sufficient
to reject what mr. vaz stated in his companynter-affidavit. however to put this factual averment beyond the pale of
controversy mr. girish chandra learned advocate who
appeared for the union government produced a file of the
department of food sugar policy desk in which claim for
upward revision of allowance for binding material presently
allowed under sugar  companytrol  order 1966 in the light of
the suggestions received from indian sugar mills association
as per its letter dated july 14 1977 has been meticulously
examined. it appears that indian sugar mills association
approached the central government requesting it for upward
revision of the rebate for binding material till then
granted under the companytrol order. indian sugar mills
association appears to be the spokesman of the sugar
industry. probably a grievance was voiced that while
producers of sugar are under a statutory obligation to grant
the prescribed rate of rebate the producers of khandsari
sugar are under numbersuch obligation even though they purchase
sugarcane from the the same market. accordingly while
examining the question whether any upward revision in the
rate of rebate should be allowed to the producers of sugar
who purchase sugarcane it was decided to simultaneously
introduce an identical provision in respect of purchase of
sugarcane by producers of khandsari sugar. that is the
genesis of the introduction of clause 4a in the companytrol
order. the file meticulously examines the suggestion for
upward revision of the rate of rebate. it clearly transpires
from the file that a circular letter was sent to all the
governments of sugar producing states requesting them to
intimate their view on the desirability or otherwise of any
upward revision in the existing quantum of rebate of 0.625
kg. per quintal in respect of the weight of the binding
material
where sugarcane is brought bound in bundles and weighed as
such. it may be briefly mentioned that punjab gujarat
karnataka and u.p. did number companysider it necessary to grant
any upward revision. on the other hand tamilnadu kerala
west bengal pondicherry haryana rajasthan and orissa were
of the opinion that there is some justification for an
upward revision number exceeding 1 kg. per quintal. the state
of bihar took a neutral stand stating that in bihar
sugarcane is number supplied bound in bundles and therefore the
question of giving any rebate in respect of binding material
does number arise. after ascertaining the views of the
different state governments the department was of the view
that since the views of the state governments are sharply
divided a request may be made to director national sugar
institute kanpur to carry out an independent study in
regard to the quantum of rebate that should be given for
binding material to enable the government to take a final
decision on the request of the industry for upward revision
of the existing rebate of 0.625 kg per quintal. this is the
genesis of the report of the director national sugar
institute referred to in para 6 of the companynter-affidavit. the summary of the report of the director national sugar
institute kanpur was examined and it was observed that the
percentage of the binding materials varies from state to
state and ranges between 0.64 to 1.5 except in orissa where
it is found to be 3.00. when the matter was still under
consideration of the department the present writ petitions
were field. it was observed that the present rate of rebate
is in force for the last over 20 years so far as the
vacuum-pan sugar manufacturers are companycerned and the same
can be applied to the khandsari sugar manufacturers also. probably further examination of the request for upward
revision came to be stalled in view of the fact that the
present writ petitions were filed. in the light of the fact situation hereinabove set-out
it is difficult to accept the submission that the fixation
of rate of rebate for binding material at 0.625 kg. for the
whole companyntry is either arbitrary or unreal or unrelated to
trade and practice. the rate of rebate seems to have been
determined by the law of averages after companylecting
information from all over the companyntry. companypled with this is
the fact that the present rate of rebate is in vogue for
over a quarter of a century. it in itself is sufficient to
negative the companytention that the rate of rebate is fixed
arbitrarily or unrelated to trade and practice. the next submission is that assuming that the central
government was influenced by the report made by the director
of the national sugar institute kanpur the report suggests
that the average works out at 0.741 kg per quintal being
approximately the mean between 0.64 and 1.5. therefore it
was vehemently urged that there was numberjustification for
further reducing it to 0.625 kg. when the determination has
to be made on law of averages and applicable to the whole
country the final figure cannumber be mathematically
determined. if the existing rate of rebate determined on
the national average is marginally higher or lower than the
average worked out by a later study team it cannumber be said
that the existing prescription is arbitrary or unrelated to
trade or practice numberdoubt if the range is wide and the
gap is unexplained realistic redetermination may be
directed. according to the average worked out by the
director of the national sugar institute all india average
rate of rebate would work out at 0.741 kg. per quintal while
the government has been fixing for over a quarter of a
century the rate of rebate at 0.625 kg. per quintal. thus
the differential between what is prescribed and what is
calculated by the study is number so wide as to render the
prescribed rate arbitrary or unrealistic. the differentials
being within a narrow range the one which is in vogue for
over a quarter of a century cannumber be rejected as arbitrary
or unrelated to trade and practice. number is the companyrt
competent to work out the exact permissible rebate with
mathematical accuracy. a reference at this stage to a piece of evidence
furnished by the petitioners would suffice to repel the
contention of the petitioners that the average weight of
binding material is 2.5 kg. per quintal and therefore the
prescribed rate is number merely marginally low but wholly
unrealistic. annexure i to the rejoinder affidavit filed by
shri prem prakash aggarwal secretary of gur khandsari
utpadak sangh roorkee dated december 24 1981 purports to
be a report of the assistant sugarcane companymissioner on his
visit to m s anand prakash atulkumar a khandsari sugar
producing unit on january 25 1978. he was accompanied by
shri shanker shukla khandsari officer sarvashri s.d. verma r.c. kureel deoband and navin chandra khandsari
inspectors. in order to ascertain the average weight of
binding material a truck loaded to its full capacity with
sugarcane was weighed. the gross weight was 37 quintals and
36 kgs. shri shobha ram the owner of the sugarcane was
directed to
remove the joon  binding material  of sugarcane. the weight
of m. trolly was found to be 21 quintals and 40 kgs. subtracting the weight of trolly from the gross weight the
weight of sugarcane with binding materials worked out at 15
quintals and 96 kgs. then followed the calculation which may
be extracted
the above farmer  kastkar  also reported that the
sugarcane was being purchased at rs. 9. 10 p. per
quintal. approximately about 1800 quintals cane was
lying at site. the weight of the joon  binding
material  after it had been removed came to 32 kgs. if the actual weight of the binding material in respect of
1800 quintals of sugarcane turned out to be 32 kg. obviously per each quintal it would be much less than 0.625
kg. mr. shanti bhushan however attempted to urge that the
last sentence in the report is disjointed and misplaced and
he wanted us to read the report as meaning that the weight
of sugarcane in the trolly was 15.96 kg. and that the weight
of the binding material in respect of the same was 32 kg. and therefore on an average it would work out at 2 kg. per
quintal. it is number possible to read the report in the manner
indicated by mr. shanti bhushan. in fact the report was
produced on behalf of the petitioners and number a word has
been stated in the affidavit to which it is annexed as to
how the report is to be read. it would thus appear that the
rate of rebate set out in the impugned numberification bears
resemblance to the sample testing of actual weight of
binding material used in binding sugarcane when brought in
bundles to the khandsari factory. our rejection of the submission should number be
interpreted to imply that numbercase is made out for upward
revision of the rate of rebate for binding material. there
is by the law of average as recently worked out in 1980-81
an examinable case for revision up to at least 0.741 kg. per
quintal. we do number purport to indicate the figure as a
judicial pronumberncement but we believe that the central
government would companytinue its examination of the request
made by indian sugar mills association shelved because of
these petitions for upward revision and realistically
examine the same as early as possible and before the next
crushing season companymences. with this we reject the
submission that the fixation of rate of rebate at
0.625 kg. per quintal in the impugned numberification is
arbitrary or unrelated to trade and practice. mr. kackar learned companynsel who appeared in writ
petitions 777-796 and 1131-52/81 urged that the impugned
numberification places a restriction on the freedom of trade
guaranteed to the petitioners under article 19  1   g  and
as it is neither shown to be reasonable number imposed in
public interest it is violative of the freedom of trade and
is therefore void. whenever it is companytended that a regulatory measure
imposes restriction upon the freedom of trade guaranteed by
articles 19  1   g  it must be shown that the restriction
so imposed directly and proximately interferes in presenti
with the exercise of freedom of trade. if the alleged
restriction does number directly or proximately interfere with
the exercise of freedom of trade the freedom guaranteed by
article 19  1   g  is number violated. petitioners companytend that
they have a right to carry on trade on manufacturing
khandsari sugar and for facilitating the carrying on of this
trade they have to buy the raw material called sugarcane. when they buy sugarcane in the absence of minimum price for
sugarcane the sugarcane grower and the producer of khandsari
sugar are free to negotiate the price. the negotiated price
would take care of the companydition in which sugarcane should
be supplied. it would be open to the producer of khandsari
sugar to buy sugarcane from the grower who may be asked to
bring sugarcane number bound in bundles. the rebate for binding
material is to be allowed only when sugarcane is brought to
the khandsari sugar producing unit bound in bundles. it is
always open to the purchaser of sugarcane to insist upon the
grower bringing the sugarcane number bound in bundles and he is
free to negotiate the price when price or minimum price of
sugarcane is number fixed and the impugned numberification will
number even remotely impinge upon his freedom to carry on his
trade. therefore the short answer is that the restriction
complained of does number directly and proximately interfere
with the exercise of freedom of trade and article 19  1   g
is number attracted. assuming that the impugned numberification making it
obligatory to grant rebate for binding material when
sugarcane is brought bound bundles to the extent prescribed
in the impugned numberifica-
tion does impose a restriction on the freedom to carry on
trade the next question is whether the restriction is
reasonable and imposed in the interest of general public. once it is assumed that the impugned numberification imposes a
restriction on the freedom of trade the burden is on those
who support it to show that the restriction imposed by the
impugned law is reasonable and is imposed in the interest of
general public. in other words the burden is on those who
seek the protection of clause  6  of article 19 number on the
citizen who says that the restrictive enactment is invalid
 see saghir ahmad v. the state of u.p. ors.  1  khyerbari
tea company limited anr. v. the state of assam 2  and vrajlal
manilal company and ors. v. state of madhya pradesh
ors. 3 . it is of companyrse number necessary to recall the
dissent of sarkar j. in khyerbari tea company limited case. the
learned judge was of the view that the whole theory of
burden of proof rests on the assumption that clause  6  of
article 19 carves out an exception and that the burden to
prove that the case is companyered by the exception is on him
who pleads the same but it was observed that this way of
reading the companystitution is number proper and one may
legitimately say that there is numberexception because the real
fundamental right is what is left after the restriction has
been imposed. companysistently with the majority view the
burden will be on the authority who claims the protection of
clause  6  of article 19 to show that the restriction is a
reasonable one and that is imposed in the interest of
general public. having settled the question of burden the passing
submission made by mr. kacker may be dealt with. it was
urged that in the batch of petitions in which he appears
neither the union government number the state of uttar pradesh
has filed companynter-affidavit and therefore one can say that
numberattempt has been made to justify the restriction. we are
number disposed to accept this submission because the union
government has filed companynter-affidavit in writ petitions
number. 6443-6444 of 1980 and all the petitions in this batch
raised identical companytentions and were directed to be heard
with writ petitions number. 6443-6444 of 1980. undeserved
respect for processual justice may have persuaded us to
direct the union government to file a companyy of the companynter-
affidavit in each petition which we
consider superfluous. at any rate the petitioners in the
petitions in which mr kacker appears were supplied a companyy
of the companynter affidavit and therefore this passing
submission must be negatived. if freedom of trade postulates inter alia freedom to
negotiate price for purchase and sale both the raw material
and the finished product the companytrol order companyfers power to
fix price of sugarcane and to that extent there is a
restriction on freedom of trade. but the restriction is number
under examination here even when he is left free to
negotiate the price where either the central government or
with the approval of the central government the state
government does number fix minimum price or price of sugarcane
there is a further restriction on his freedom of negotiating
the price because he is statutorily bound to give rebate for
the binding material as prescribed in the impugned
numberification. to that extent one may give credence to the
contention that there is a marginal restriction on the
freedom of trade. the statutory prescription of quantum of rebate for
binding material has been prescribed for the benefit of
sugarcane growers. producers of sugar and khandsari sugar
constitute a powerful trade lobby the fact of which one can
take judicial numberice. sugar being an essential companymodity
occasionally kept in short supply and being a companymodity
needed for companysumption by almost the entire population the
powerful industry magnates in this field are in a position
to dominate both the growers of sugarcane as also the
consumers of the essential companymodity. number of regulations
have been enacted almost since the dawn of independence to
regulate this powerful companybination of manufacturers of sugar
and khandsari sugar all over the companyntry for the ultimate
benefit of companysumers on the one hand and on the other hand
the farmers and the growers of sugarcane with their small
holdings and raising a perishable food crop. the marginal
farmers are unable to stand up against the organised
industry. it does number require long argument in this
predominantly agricultural society that the farmers having
small holdings need protection for selling at fair price
their meagre agricultural produce. as far back as 1953 the

p. legislature enacted u.p. sugarcane  regulation of
supply and purchase  act 1953 for rational distribution of
sugarcane to factories for its development on the organised
scientific line to protect the interest of cane
growers and of the industry etc. companystitutionality of this
act was challenged on various grounds including one under
article 19  1   g  in ch. tika ramji ors. v. the state of
uttar pradesh ors.  1  this companyrt repelled the challenge
under article 19  1   g  holding that the restriction which
is imposed upon the cane-growers in regard to sales of their
sugarcane to the occupiers of factories in areas where the
membership of the cane-growers companyoperative society if number
less than 75 per cent of the total cane growers within the
area is a reasonable restriction in the public interest
designed for safeguarding the interest of the large majority
of growers of sugarcane in the area and works for the
greatest good of the greatest number. the proposition is number
beyond the pale of companytroversy that the state can impose a
restriction in the interest of general public on the right
of a party to companytract where in the opinion of the
government the companytracting parties are unable to negotiate
on the footing of equality. companystitutional validity of
statutes prescribing minimum wages has been founded on this
proposition. the principle can be effectively extended to
the powerful sugar industry and the cane growers because the
cane growers admittedly are at a companyparative disadvantage to
the producers of sugar and khandsari sugar who were
described in the companyrse of arguments as sugar barons. it
does number require an elaborate discussion to reach an
affirmative companyclusion that sugarcane growers who are
farmers cannumber negotiate on the footing of the equality with
the producers of sugar and khandsari sugar. the state action
for the protection of the weaker sections is number only
justified but absolutely necessary unless the restriction
imposed is excessive. viewed from anumberher angle the impugned restriction is
entirely reasonable. if price or minimum price of sugarcane
is fixed the producers of sugar would try to circumvent the
price by unrealistic and impermissible deductions. the
rebate for the weight of binding material seems to be a
source for indulging in this nefarious if number wholly
fraudulent companyduct. it is equally well settled that the
state can impose reasonable restrictions under clause  6  of
article 19 to prevent fraud or where advantage of a
fraudulent companyduct is sought to be taken  see m s. fedco  p
ltd. v. s.n. bilgrami 1 . the impugned restriction serves
two-fold purpose  i  it ensures price of sugarcane avoiding
impermissible deductions  ii  it circumvents
possible fraud by making such deductions as would render
illusory even the negotiated price if number fixed price. and
it is indisputable that if the rebate is number statutorily
prescribed the cane growers will be at the mercy of the
producers of sugar and khandsari sugar. if price or minimum
price of sugarcane can be fixed by the state because this
power was never questioned before us this very power
comprehends the power to provide such incidenta land
ancillary regulations which will ensure the price. price
fixation measure is for protection of the farmer from the
exactions of producers against which he cannumber protect
himself.  see lee nebbia v. people of the state of new
york  1 . the impugned measure ensures price either fixed or
negotiated and therefore it is a restriction which is
undoubtedly reasonable and is imposed in the interest of
general public and the guarantee of freedom of trade is number
violated. the last submission is that in order that the
restriction may be reasonable it must have reasonable
relation to the object which the statute seeks to achieve
and must number be in excess of the object. it was urged that
the sugarcane companytrol order was issued in exercise of power
conferred by section 3 of the essential companymodities act. one
of the objects sought to be achieved by the essential
commodities act 1955 is to ensure availability at fair
price the essential companymodity to the companysumers. it was
further urged that one can visualise that the power to fix
minimum price or price of sugarcane may have a rational
nexus to the object sought to be achieved namely
availability of sugar to the companysumers at fair price. but it
was urged that prescribing the rate of rebate for binding
material has numberrelation with the aforementioned object. this submission does number companymend to us for the obvious
reason that the restriction is imposed in the interest of
the cane growers and the state while ensuring that sugar a
commodity of daily companysumption by almost every one in this
country is available to everyone at a fair price
simultaneously wanted to ensure that the grower of
sugarcane anumberher weaker section of the society is number left
to vagaries of the trade or the powerful sugar industry. to
strike the balance between the companyflicting interests number
only state acquired power to fix minimum price of sugar and
khandsari sugar but that this wholesome effort may number work
to the disadvantage of the sugarcane growers section of the
society the power to prescribe rate of rebate was acquired.


civil appellate jurisdiction civil appeal number. 1763-
1766  nt  of 1973.
from the judgment and order dated 25.6.1973 of the
gauhati high companyrt in civil rules number. 683-686 of 1969.

b. ahuja and s.k. nandy for the appellant. miss halida khatoon for the respondent. the judgment of the companyrt was delivered by
sabyasachi mukharji j. these appeals are by special
leave from a decision of the division bench of the gauhati
high companyrt in respect of assessment made under the assam
sales tax act 1947  hereinafter referred to as the act . the appellant was carrying on supply business of various
items of ration to the central reserve police units within
the state of assam for a number of years. in response to a
tender numberice issued by the superintendent of police
jorhat the appellant had submitted a tender to supply
various items of ration in army scale including meat on
hoof. meat on hoof is described in the tender numberice as
follows
5 d  companytractor shall be bound to supply different
varieties of meat on hoof as per following ratio
of the monthly requirement
khasi - 50
he goat - 30
sheep ram -20
the khasi and ram to be supplied for the purpose
of meat must number be over 5 years or below two
years of age and he goat must number be over one year
or below six months of age. the tender numberice also indicated that all companytracts
would be on schedule rates per 100 k.g. net. the tender of
the appellant was accepted and an agreement was made on ist
april 1965 between the appellant and the superintendent of
police. according to the appellant in his application under
article 226 of the companystitution to the high companyrt meat on
hoof is a peculiar abbreviation used mainly by the military
which is numberhing but a live goat. it was stated that it was
a device to satisfy certain religious sentiments of the
people in the military that the aforesaid phrase had been
used. the appellant had further alleged in his petition that
the sole purpose for which the meat on hoof was supplied
was for meat and that was the companysideration for which the
price was fixed. it was further stated that it was a device
to satisfy certain religious sentiments of the people in the
military that the aforesaid device was fixed. companysideration for which the price was fixed. it was further
stated that it was a device to satisfy certain religious
sentiments of the people in the military that the aforesaid
device was fixed. reliance was placed before the high companyrt on a
numberification dated 11th october 1967 in the assam gazette
with regard to the scale of meat though it was alleged that
in actual practice live animals were being supplied for the
purpose of meat. the scale is indicated in the assam gazette
- paragraph 14 a  and  b  which is as follows
14 a  the scale of meat for assam rifles is for
dressed meat. in actual practice live animals
 chicken in the case of hospital supplier  will be
supplied for the purpose of meat. live
animals chickens after production and having been
passed by the ration companymittee may in certain
supply points stations be required to be
slaughtered under customary rights prevalent in
the unit by the companytractor at his own expense and
agreements. after the carcass has been dressed and
wiped down it will be hung for 3 to 6 hours
according to the season of set. then dressed out
meat will be duly weighed and supplied to the
supply points stations as per demand. in case of ops which are dependent on
bn.hq wing hq sub-wing hq for the purpose of
supply companytractor will have to supply live
animals for the purpose of meat and half the
weight of such live animals i.e. 50 per cent only
will be taken as equal to that of dressed meat. the appellant in response to a numberice under the sales-
tax act originally did number file any return. thereafter
assessment was made under section 19 of the said act for the
period ending 30th september 1965. application under
article 226 of the companystitution was made to the high companyrt
to quash the said order of assessment and the numberice of
demand dated 23rd may 1969 in pursuance of the assessment
order. it was the companytention of the appellant that meat is
exempted from sales-tax as appearing at serial number 11 of
schedule iii to the act and since meat on hoof was numbering
but meat the assessment in this case under the said act
was unauthorised and invalid. section 2 4  of the said act
defines goods as follows
2 4  goods means all kinds of movable property
other than newspapers actionable claims stocks
shares or securities and includes all materials
articles and companymodities whether or number to be
used for the purposes referred to in sub-clauses
 a  and  b  of clause  2 . section 3 imposes liability to tax and provides that
every dealer whose gross turnumberer of sales exceeded the
taxable quantum as fixed in the act shall be liable to pay
tax under the act. we need number deal with the provision in
detail. reliance was however placed on section 6 2  which
provides that the provisions of the said act shall number apply
to the sale of goods specially exempted under the provisions
of the said act. schedule iii of the said act deals with goods exempted
under section 7 of the said act. section 7 of the said act
provides that subject to the companyditions and exemptions if
any set out in schedule iii to the said act the sales of
goods specified therein shall be exempted from taxation
under the said act. item 11 of schedule iii to the said act
reads as follows
------------------------------------------------------------
sl. number description. companyditions and except
subject to which
exemption has been
allowed. ------------------------------------------------------------
x x x x x x
x x x x x x

fish ghee  but number vegetable ghee  except when sold in
dahi butter cream ceasin meat sealed companytainers. and vegetables  but number onion
garlic spices and companydiments.  it was also submitted on behalf of the appellant that
goods as defined in section 2 4  did number include meat on
hoof which was numberhing but live animal and the provisions
of the said act were number attracted to sale of animals. thirdly and lastly it was urged before the high companyrt that
entry 48 of list ii of the seventh schedule to the
government of india act 1935 under which the said act was
passed the tax was on sale of goods and on
advertisements and number on animals. the high companyrt held
that it was clear that the above item 11 listed the
particular goods exempted under section 7 of the said act
and the companyditions and exceptions subject to which
exemptions were allowed appear to be except when sold in
sealed companytainers. the exception specified in the item also
clearly pointed to meat being dressed meat and number meat
on hoof which was really the sale of the animal. according
to the high companyrt meat at serial number 11 of schedule iii to
the said act companyld number be equated with meat on hoof and it
was number possible to interpret the exempted item in the
schedule with reference to what the parties understood at
the time of the companytract. apart from that the high companyrt
was of the view that the particular item in the tender and
the agreement between the parties was number capable of the
meaning suggested on behalf of the appellant. for the aforesaid reasons and in view of the fact that
in the opinion of the high companyrt meat on hoof was live
animal and that the sale of animal is sale of goods under
the said act it dismissed the application under article 226
of the companystitution. these appeals have been preferred from
the said decision of the high companyrt after obtaining special
leave from this companyrt. it is well-settled that in interpreting items in
statutes like the sales tax acts whose primary object is to
raise revenue and for which purpose they classify diverse
products articles and substances resort should be had number
to the scientific and technical meaning of the terms or
expressions used but to their popular meaning i.e. the
meaning attached to them by those dealing in them.  emphasis
supplied  if any term or expression has been defined in the
enactment then it must be understood in the sense in which
it is defined. but in the absence of any definition being
given in the enactment the meaning of the term in companymon
parlance or companymercial parlance has to be adopted. see the
observations of this companyrt in indo international industries

commissioner of sales tax uttar pradesh 1981 3 s.c.r. 294 and also in the case of his majesty the king v.
planters nut and chocolate companypany limited 1951 c.l.r.  ex.  122  which decision was approved by this companyrt in
commissioner of sales tax madhya pradesh v. jaswant singh
charan singh  1967 2 s.c.r. 720.
in the companytext of transactions with the central reserve
police force posted numberth eastern region the question
therefore is how is the expression meat on hoof
understood by persons who dealt in them. identical expression meat on hoof came up for
consideration in the case of daffadar bhagat singh sons v.
joint excise and taxation companymissioner and taxation
commissioner punjab patiala and anumberher 37 s.t.c. 527.
there the appellants were a firm of army companytractors and
they were registered as a dealer under the punjab general
sales tax act 1948 and the central sales tax act 1956.
under the companytract between the appellants and the army
authorities the appellants had to supply among other
things meat and meat on hoof. under section 6 read with
entry 18 of schedule to the punjab act numbertax was payable on
the sale of meat fish and eggs except when sold in tins
bottles or cartons. the question that arose in that case was
whether meat on hoof was taxable under the punjab act. the
high companyrt was of the view that meat on hoof was taxable
inasmuch as meat on hoof was preserved meat the
preservation being the natural carton companysisting of the skin
of the animal. on appeal this companyrt observed that the skin
covering the flesh of the animal preserved its life to
think that the skin was a carton for the flesh which companyld
be used for food after the animal was slaughtered was
against companymonsense. this companyrt further observed whether
what was sold by the appellants in that case to the army
authorities as meat on hoof was really meat or live animals
would depend on a companyrect reading of the companytract between
the parties and since all the terms of the companytract were
number before the companyrt the matter was remanded. we have already numbericed the relevant clause in the
tender the appropriate term in the companytract the extract
from the assam gazette and the purpose for which the meat
was being purchased. furthermore it has been found as a fact
that the meat on hoof was intended for supply of ration to
the personnel of the third battalion of the m.s.r.p.f. what
was intended to be bought was undoubtedly meat for ration
and a reasonable explanation has been given as to why
instead of meat  flesh of the goat  meat on hoof was asked
to be supplied. the abundant and undisputed evidence on
record about the purpose of the supply and the position that
meat on hoof becomes meat proper as soon as the goat is
slaughtered and the skin is pulled off leaves numberdoubt in
our mind that the assessee had advanced a tenable claim. in the oxford english dictionary 1933 edn. volume v
page 372 one of the meanings of the hoof mentioned is as
follows
the massive horny growth which sheathes the ends
of the digits or in cases the foot of quadrupeds
forming
the order ungulata primarily that of the horse
and other equine animals it companyresponds to the
nails or claws of other quadrupeds. in companylins english dictionary at page 705 hoof is
defined as under
1.a. the horny companyering of the end of the food in
the horse deer and all other ungulate mammals. b.  in companybination  a hoofbeat. related adj. ungular. 2. the food of an ungulate mammal. 3. a
hoofed animal. 4. facetious. a personss foot. 5.
on the hoof.  of livestock  alive-vb. 6.  tr.  to
kick or trample with the hoofs. 7. hoof it slang. a. to walk. b.  intr.  to dance.  old english hof
related to old numberse hofr old high german huof
 german huf  sanskrit saphas . in strouds judicial dictionary 3rd edn. vo1.2 page
1333 hoofs is mentioned in respect of fertilisers and
feeding stuffs act 1926.
in any event as mentioned hereinbefore meat on hoof
a such is number defined in the said act. it must be understood
in the companytext of the persons who were dealing in meat on
hoof. meat is exempted under the said act. therefore the
transactions that were between the parties were for the
meat in respect of which the levy of sales tax was sought
to be imposed. that cannumber be done.


civil appellate jurisdiction civil appeals number. 7 to 9 of
1959.
appeals by special leave from the judgment and order dated
june 251955 in cases number. 0551-r cg 54 0602-r cg/54 and
0503-r cg/54 of 1954.
achhru ram and b. r. l. ayengar for the appellants. gopal singh and t. m. sen for the respondents. 1961. march 10. the judgment of the companyrt was delivered
mudholkar j.-these are appeals by special leave from three
orders against an order passed on march 12 1954 by the
custodian general evacuee property disposing of three
revision petitions two of which were preferred by one
bharoo mal  since deceased
and one by his wife and number widow padma devi. even though
a companymon order was passed by the custodian-general three
appeals have been preferred before this companyrt. the facts leading upto the appeals are briefly as follows
an agreement was entered into between bharoomal and one
nanan begum on april 11 1948 for the exchange of
bharoomals propertiesat sukkar in sind pakistan for nanan
begums properties at lucknumber. prior to that on april 7
1948 a similar-agreement was entered into between padma devi
and one tahir ali. it is companymon ground that in pursuance of
the agreement bharoomal and padma devi entered into
possession of the properties obtained by them in exchange
from nanan begum and tahir ali respectively and the latter
entered into possession of the. properties belonging to the
former situated in sukkar. the deed of exchange was to be
executed within two years of the date of agreement but in
fact it was never executed. companysequently in the year 1950
bharoomlal and padma devi instituted three suits for
specific performance. these suits were decreed and sale
deeds companyveying certain properties to bharoomal and certain
properties to padma devi were executed by the companyrt in
february 1952.
in october 1949 the u. p. administration of evacuee
property ordinance 1949  1 of 1949  was promulgated and
shortly thereafter the administration of evacuee property
 chief companymissioners provinces  ordinance 1949  12 of
1949  promulgated by the central government was extended
to the united provinces replacing u. p. ordinance 1 of 1949.
nanan begum and tahir ali having migrated to pakistan
bharoomal and padma devi made three applications under cl. 25 2  of the central ordinance for companyfirmation of the
exchanges in their favour. these applications were granted
by the deputy custodian of evacuee property in the year
1950. sometime in the year 1951 the custodian of evacuee
property suo motu revised the orders of the deputy custodian
passed in the year 1950 on the ground that the agreements on
the basis
of which the applications for companyfirmation were made by
bharoomal and padma devi do number amount to transfers and that
consequently they companyld number be companyfirmed. he also held
that the deeds of transfer obtained by bharoomal and padma
devi from the companyrt were number companyfirmed by the custodian and
that therefore the possession of bharoonal and padma devi
over the properties in question which wore admittedly
evacuee properties was unauthorised. he therefore ordered
that possession of the properties be taken back from
bharoomal and padma devi and that they should be required to
account for the rent and profits realised by them from
these properties. these persons preferred applications for
revision before the custodian-general of evacuee property. their applications were as already stated rejected by him. in the appeal to this companyrt the only ground pressed is that
the custodian had numberjurisdiction to pass an order requiring
the appellants to render accounts of the rents and profits
from the properties in their possession. mr. achhruram who
appears for them accepts the position that the orders of
the deputy custodian of evacuee property passed in the year
1950 companyfirming the transfers were rightly set aside by the
custodian in revision. therefore only a short question
falls to be determined by us and that is whether the
custodian was right in further ordering the appellants to
render accounts of rents and profits from the properties in
their possession. we asked mr. gopal singh who appears for the custodian-
general to show us any provision in the act or in the rules
which authorises the custodian of evacuee property to direct
a person who is alleged to be in unauthorised possession of
evacuee property to render accounts for rents and profits of
those properties without resorting to the ordinary remedy
provided by law that is by way of suit. mr. gopal singh companytends that as soon as nanan begum and
tahir ali migrated to pakistan their property in india
automatically vested in the custodian of evacuee property
under cl. 5 1  of the u. p. ordinance 1 of 1949 and
continued to vest under central
ordinance number xii of 1949 which replaced the u. p.
ordinance. by virtue of sub-s.  2  of s. 8 of the
administration of evacuee property act 1950  xxxi of 1950
which came into force on april 18 1950 the property which
is vested in the custodian under any law repealed by the act
shall be deed to be evacuee property within the meaning of
the act and shall be deemed to have vested in the custodian
appointed under that act. the central 1 ordinance xii of
1949 was one of the laws repealed by the act. he then
referred to s. 10 and companytended that thereunder the
custodian has the power to recover from an unauthorised
occupant of evacuee property the rents and profits realised
by him during the period of his unauthorised occupation. sub-section  1  of s. 10 reads thus
subject to the provisions of any rules that
may be made in this behalf the custodian may
take such measures as lie companysiders necessary
or expedient for the purposes of securing
administering preserving and managing any
evacuee property and generally for the purpose
of enabling him satisfactorily to discharge
any of the duties imposed on him by or under
this act and may for any such purpose as
aforesaid do all acts and incur all expenses
necessary or incidental thereto. according to him the words for the purposes of securing
administeringpreserving and managing any evacuee
propertyeffectively companyfer on the custodian power to
recoverrents and profits of the property from the person
in possession. there is numberhing in the words relied on from
which a power of the kind companytended for by learned companynsel
can be deduced. sub-section  2  of s. 10 specifically
enumerates some of the powers of the custodian. learned
counsel was number able to point to anything in the sub-section
which companyfers power on the custodian to recover rents and
profits from a person in unlawful possession of the
properties. learned companynsel then referred to r. 10 and said
that this rule would entitle the custodian to determine and
recover rents and profits from unauthorised occupants of
evacuee property. sub-rule 1
of r. 10 undoubtedly authorises the custodian to recover
possession of property from the evacuee or from a person
whether holding on behalf of or under the evacuee or
otherwise and number having a lawful title to possession
thereof as against the custodian. there is numberhing in this
sub-rule which further entitles the custodian to determine
and recover rents and profits from an unauthorised occupant
of evacuee property. sub-rule 2 of r. 10 empowers the
custodian to issue a numberice to a tenant or a licensee in
possession of evacuee property whom the custodian cannumber
eject or does number want to eject. for one thing this sub-
rule cannumber apply to a person who is alleged to be in
unauthorised occupation of evacuee property. then again it
does number companyfer any power on the custodian to determine
rents and profits or to recover rent in a summary manner. in the circumstances we must hold that this provision also
does number help the respondent.