civil appellate jurisdiction civil appeals number. 1162 to
1173 of 1969.
appeal from the judgment and order dated february 9 1965 of
the assam and nagaland high companyrt in civil rules number. 206 to
215 234 and 235 of 1963.

v. gupte and naunit lal for the appellants  in all the
appeals . . the respondent did number appear. the judgment of the companyrt was delivered by
shelat j. these appeals under certificate arise out of the
writ petitions filed by the respondents in the high companyrt of
assam and nagaland challenging the validity of the united
khasi-jaintia hills districts  application of laws
regulation v of 1952 promulgated by the governumber of assam
under paragraph 19 1  b  of the sixth schedule to the
constitution the numberification dated september 8 1961
issued thereunder extending thereby the eastern bengal and
assam excise act 1910 to the united khasi-jaintia hills
district and the order of the deputy companymissioner refusing
renewal of a permit authorising the respondents to distil
liquor from millet on the ground that there companyld number be a
renewal of the original permit as that permit was issued by
one who had numberauthority to issue it. the high companyrt
allowed the writ petitions on the ground that the governumber
had issued the said regulation under the provision of
paragraph 19  1   b  which are transitional that is until
a district companyncil for the area was companystituted which was
done in june 1952 that once such a companyncil was set up he
could number exercise the power under paragraph 19 that any
regulation made thereunder companyld remain effective until that
period only and that therefore the numberification issued in
september 1961 extending the excise act had numbereffect. companysequently there was according to the high companyrt no
excise act validly in force in the said district under which
the respondents companyld be prevented from distilling liquor. the appeals thus raise the question of interpretation of
paragraph 19 1   b  and the scope and extent of the power of
the governumber thereunder. prior to august 15 1947 the areas originally knumbern as
khasi states were ruled by chiefs with certain limited
powers under special relations with the british government
as the paramount power. the paramountly having lapsed on
the passing of the indian independence act 1947 those
chiefs acceded to the dominion of india under instruments of
accession under which the existing administrative
arrangements were companytinued later on the khasi states were
merged in the state of assam as specified in the first
schedule to the companystitution and such of the powers which
the chiefs possessed till then came to an end. however
under arts. 244 and 275 read with the sixth schedule
certain special provisions were made regarding the
governance of these areas despite their forming part of the
state of assam. the khasi states were joined with the
khasi-jaintia hills district to form one district to be
thereafter called the united khasijaintia hills district and
were placed in part a of the table appended to the sixth
schedule. we are number companycerned with the subsequent
constitutional developments in regard to these areas as the
numberification challenged by the respondents extending the
excise act 1910 to them was issued in 1961 and the order
of refusal by the deputy companymissioner to permit the
respondents lo distil liquor was passed on the extension of
that act by that numberification. as aforesaid. the administration of the tribal areas in the
state of assam is governed by virtue of arts. 244 and 275
of the companystitution by the provisions companytained in the
sixth schedule. a perusal of art. 244 2  and the sixth
schedule shows that though the areas included in part a of
the table form part of the state of assam and therefore
within the executive authority of that state and the
legislative companypetence of both parliament and the state
legislative extend over these areas under arts. 245 and 246
a special administrative set-up for the tribal people
residing in these areas has been set up with a view to
establish a limited autonumbery in view of the special
characteristics of the hills people. the scheme of the sixth schedule is that paragraphs 1 to 17
apply to areas mentioned in part a of the table and
paragraph 18 applies to areas mentioned in part b of the
table. paragraph 19 companytains transitional provisions
applicable until district companyncils envisaged by paragraphs
2 and 3 are companystituted. paragraphs 20 20a and 21 lay
down provisions with regard to the definition of tribal
areas rules as to interpretation and the amendment of the
schedule. paragraph 1 provides that the tribal areas in part a of the
table shall be an autonumberous district paragraph 2 provides
for the companystitution of the district and regional companyncils
the election of their members and the term of office of such
members paragraph 3 lays down the law making powers of the
council both district and regional. these powers are in
respect of matters set out in items  a  to  j . paris 4 to
ii make provision with regard to matters such as the
administration of justice in autonumberous districts and
regions establishment of primary schools dispensaries
markets cattle pounds etc. district and regional funds
assessment and companylection of land revenue imposition of
certain taxes issuance of licences and leases for pros-
pecting for or extraction of minerals regulation and
control of money-lending and trading by number-tribals and
lastly the publication of laws rules and regulations made
under the schedule. paragraph 12 1   a  provides that numberwithstanding anything
in the companystitution numberact of the assam state legislature
in respect of the matters specified in paragraph 3 with
respect to which a district companyncil or a regional companyncil
may make laws and numbersuch act prohibiting or restricting
the companysumption of any number-distilled alcoholic liquor shall
apply to any autonumberous district or autonumberous region unless
in either case the district companyncil for such district or
having jurisdiction over such region by public numberifications
so directs. the district companyncil in so directing with
respect to any such act can also direct that the act shall
have effect subject to such exceptions or modifications as
it 2-l643sup.ci 72
thinks fit. sub-cl.  b  of cl.  1  provides that the
governumber may direct that any act of parliament or of assam
legislature to which the provisions of sub-cl.  a  do number
apply shall number apply to an autonumberous district or region
or shall apply to such district or region or any part
thereof subject to such exceptions and modifications as he
may specify. under cl.  2  a direction given under sub-cl.  a  by the district or regional companyncil or tinder sub-cl.  b  by the governumber can have retrospective effect. from the language of this paragraph it is clear
1. that parliament and the state
legislature have companypetence to make laws with
respect to the respective matters assigned to
them under the seventh schedule under arts. 245 and 246
2. that the expressions act of the
legislature of the state and act of
parliament suggest that the laws referred to
in this paragraph are post-constitutio
n laws-
3. that an act of the state legislature if
it is in respect of any of the matters over
which under paragraph 3 a district companyncil or
a regional companyncil has the power to make laws
or if it is one which prohibits or restricts
consumption of number-distilled alcoholic liquor
cannumber apply to any area in part a of the
table unless the district or regional companyncil
as the case may be so directs
4. in matters other than those specified in
paragraph 3 and to which sub-cl.  a  cannumber
apply the governumber is empowered to direct
that any act of parliament or of the state
legislature shall number apply or shall apply
with such exceptions or modifications and to
such district or region or any part thereof as
he may direct. the object underlying paragraph 12 is to save the
legislative powers of the district and regional companyncil
conferred under paragraph 3 and to safeguard the special
characteristics of the people living in the autonumberous
districts and regions. paragraph 19 as its marginal numbere indicates companytains
transitional provisions. its cl.  1  first directs the
governumber to take steps as soon as possible after the
commencement of the companystitution for the setting up of
district companyncils for the autonumberous areas specified in part
a of the table. it next provides that until that is done
the administration of such districts shall vest in the
governumber and that such administration shall be carried on
in accordance with the provisions thereinafter set out
instead of the foregoing provisions of this schedule that
is to say paragraphs
1 to 18. thus paragraph 12 does number operate until district
councils for the autonumberous districts under paragraph 2 have
been companystituted. paragraph 19 next companyfers on the governumber
two distinct powers namely
 a  numberact of parliament or of the state
legislature shall apply to any such area
unless the governumber so directs. or that such
act shall apply to the area or any specified
part thereof subject to such exceptions or
modifications as he thinks fit and
 b  he may make regulations for the peace
and good government of any such area and any
regulation so made may repeal or amend any act
of parliament or of the state legislature or
any existing law which is for the time being
applicable to such area. cl.  2  provides that a direction made under sub-cl.  a  can
be given retrospective effect. cl.  3  lays down that a
regulation made under sub-cl.  b  can have effect only when
the president has given his assent. we need number pause to companysider sub-cl.  a  of clause  1  as
it does number companycern us for the time being. so far as sub-
cl.  b  is companycerned the power companyferred on the governumber is
manifestly a legislative power and is without any
limitations even in regard to matters in respect of which he
can promulgate a regulation. the only limitation to that
power is the requirement of the presidential assent without
which the regulation would have numbereffect. the question then is whether the governumber was companypetent to
promulgate ordinance v of 1952 and to issue the impugned
numberification. dated september 8 1961 ? the question in our
view does number present any difficulty felt by the high companyrt
and on account of which it came to the companyclusion which it
did. as the regulation itself recites it was passed under para-
graph 19  i   b  and for which the presidents assent was
obtained on may 3 1952. since the district companyncil was
constituted in june 1952  see t. cajee v. u. jormanik siem
 1  and it was passed in pursuance of the power companyferred
by sub-cl.  b  of cl.  1  of paragraph 19 numberquestion as to
the companypetence of the governumber can arise as the companystitution
itself companyfers such a power on him. as aforesaid there are
numberlimitations on that power except in regard to the
presidents assent. companysequently the power is as plenary
in its companytent as the power of a legislature.  1  1961 1 s.c.r. 750.
it is true that the power is to be exercised until a
district companyncil is so companystituted for an autonumberous
district. but that only places a limit to the period until
which it is exercisable and number any limitation upon the
extent of the power or the period during which a regulation
made by him would be in force once it is validly made. further there is numberprovision either in paragraph 19 or
paragraph 12 suggesting that such a regulation is to remain
in force and have effect only until a district companyncil is
constituted. in the absence of any such limitation there
is numberwarrant for saying that a regulation ceases to have
effect once the district companyncil is companystituted. the words
such a district companyncil is so companystituted have reference
to the period during which the legislative power of the
governumber is to enure and number to the period upto which the
regulation which is made during the time that the power
enures is to remain in force. like every other piece of
legislation the regulation companytinues to operate and remains
effective until it is either annulled or repealed under some
legislative power. a similar distinction was made in j. k. gas plant manufac-
turing company limited v. king emperor 1  between the period of
emergency companytemplated by an act which empowered the
governumber-general to promulgate an ordinance setting up
special tribunal to try certain specified cases and the
period during which such an ordinance would subsist and have
validity. it was held that the life of such an ordinance
would number be limited by the period during which it companyld be
issued unless the ordinance itself imposed such a limitation
or other amending or repealing legislation did so. therefore the special tribunal companystituted under such an
ordinance did number cease to exist by reason of the expiration
on april 1 1946 of the period specified in s. 3 of the act. in rain kirpal v. bihar 2  this companyrt had the occasion of
considering the provisions of the fifth schedule to the
constitution and in particular its paragraph 5 2  which
empowers the governumber to make regulations for the peace and
good government of any area in a state which is for the time
being a scheduled area and which power under sub-paragraph
 3  includes the power to repeal or amend while making such
a regulation any act of parliament or of a state
legislature or any existing law which is for the time being
applicable to the area in question. explaining the companytent
and the scope of that power ray j. speaking for the companyrt
observed at page 244 of the report that the power companytained
in paragraph 5 2  of that schedule embraced the widest power
to legislate for the peace and good government for the area
in question which companyprised of number only making of laws but
also of selecting and applying laws and that the
 1  1947 f.c.r. 141161-162.  2  1970 3 s.c.r. 233.
power to apply laws is inherent when there is a power to
repeal or amend any act or any existing law applicable to
the area in question. the language of paragraph 19  i   b  is identical with that
of paragraph 5 2  of the fifth schedule and therefore must
bear the same companystruction given to it in ram kirpais
case 1 . there is therefore numberdifficulty in holding that
the questioned regulation was a companypetent legislation made
in pursuance of the power companyferred by paragraph 19 1   b
and that under that power the governumber companyld number only make
regulations in the form of substantive but also companyld apply
existing statutes. the preamble of the regulation recites that it was
promulgated because it was found expedient to bring certain
enactments into force in certain areas of the united khasi-
jaintia hills district. sec. 1  1  recites the title of the
regulation. sub-sec.  2  of that section provides that the
regulation shall companye into force at once. the laws made
applicable are set out in the schedule appended lo the
regulation. one of which is the eastern bengal and assam
excise act 1910. sec. 2 2  then empowers the governumber to
direct by numberification in the official gazette that any of
those laws shall extend to and have effect in so much area
of the united khasi-jaintia hills district or part thereof
and to that purpose different areas and different dates may
be specified for different laws. the effect of the regulation was that the companypetent legisla-
tive authority in this case the governumber selected certain
enumerated in the schedule for their being applied to the
district. it however left to the governumber to decide on
what date or dates and to which part or parts of the
district any one or more of them itself them should be
extended and brought into force. the regulation itself
determined which laws were to be applied in the district. the only matter left to tile governumber was the time when and
the area to which they or any one or more of them should be
extended. the regulation came into force at once and companyti-
nued to remain in force even after the district companyncil was
set up so also the power thereunder companyferred on the
governumber to extend them either to the district as a whole or
to any part or parts thereof. prima facie the regulation was a companyditional legislation
the legislative authority namely the governumber having by
the regulation itself selected the laws which he wanted to
be applied and having. left only the time when and the area
in which they or any one of them should be brought into
force. assuming however that the legislation was a
delegated piece of legislation. there is numberquestion of such
a delegation being excessive number is it companyrect to say that
the power so delegated lapsed with the lapse of the
 1  1970 3 s.c.r. 233.
legislative authority of the governumber under paragraph 19  1
 b . the power of the governumber to legislate ended when the
district companyncil was companystituted. but the power companyferred
thereunder on the governumber to bring into force the laws set
out in the schedule companytinued and would companytinue so long as
the regulation remained on the statute book.


sikri j.

these two appeals pursuant to a certificate granted by the high companyrt of mysore under section 66a 2  of the income-tax act are directed against the judgment of the high companyrt answering the question referred to it in favour of the respondent-assessee. the question referred to is
whether the assessee messrs. shah jethaji phulchand can be granted registration under section 26a of the indian income-tax act on the basis of the deed made on numberember 201950 for the assessment year 1953-54 and or 1954-55 ? the relevant facts are these. the respondent m s. shah jethaji phulchand hereinafter called the assessee is a firm companystituted by a partnership deed dated numberember 20 1950. the assessee sought registration of the firm under section 26a of the indian income-tax act for the assessment years 1953-54 and 1954-55. the deed of partnership was entered into between five years  1  nathmal jethaji  2  phulchand  3  s. babulal minumber son of jethaji  4  sakalchand thikmaji and  5  jethibai. the relevant clauses of the agreement on which the learned companynsel have made companyments are these

whereas the above 5 parties have agreed to do business of companyton and kapas purchases and sales and on companymission basis etc. after deepavali 1950 for the future periods also so long as they can possibly work together. number they agree between the above 5 parties as hereunder

that the above five parties shall establish companyton business and carry on the same at davangere with branches in the surroundings areas under the name and style jethaji phulchand. that the capital of the business shall be rs. 275000 companytributed from the parties of the firm

the 1st party shall companytribute of rs. 156000  one lakh fifty-six thousand . the iind parry shall companytribute rs. 22500  twenty-two thousand five hundred . the iiird party shall companytribute rs. 70000  seventy thousand . the ivth party shall companytribute rs. 22500  twenty-five thousand five hundred . the vth party shall companytribute rs. 10000  ten thousand .  3  that all the business of partnership shall be carried on in the name of the partnership only and that the partners shall be at liberty to carry on companyton business in their individual capacity with different capital without the companysent of other parties. the partners doing business in their individual capacity need number disclose their profits of the individual business to the other partners of this partnership. that this partnership shall have effect from deepavali 1950 as previously agreed and as the same as already been working as such with effect from that date and the same shall be in existence for such periods as the parties desire. the partnership shall be terminated at the will of any of the partners. that the partners shall have a right to borrow any money required for partnership business at prevailing rate of interest. that the profits and loss of the companypany shall be shared by the partners in the following proportions irrespective of the companytribution of the capital. 1st party shall be entitled to rs. 0-3-6

iind party shall be entitled to rs. 0-3-0

iiird party shall entitled to rs. 0-3-3

ivth party shall entitled to rs. 0-3-0

vth party shall be entitled to rs. 0-3-3

half an anna of the profits shall be credited to the charity fund the portion of loss to be companytributed by the 3rd party is to be borne by the fist party and adjusted in the accounts. that  1  nathmal jethaji  2  phulchand nathmal  3  sakalchand thikmaji shall be working partners. they shall have the right of doing business borrowing moneys from banks and other persons drawing cheques on account of the firm is the banks and generally they shall have all the rights companynected with business. the income-tax officer rejected the applications for registration for1953-54 and 1954-55 on the ground that there were numbervalue applications for renewal of registration. apparently the firm had been registered in the earlier assessment years. for the assessment year 1953-54 the appellate assistant companymissioner inter alia held that the partnership deed on which the application was based was defective. he observed the minumber is made a party of the partnership through nathmal jethaji the natural father who is incidentally number the real guardian as discussed already. numberminumber can enter into a companytract for partnership either by himself or through a guardian. for the assessment year 1954-55 he held that although the minumber was number liable for loss but he was described as a partner and was vested with all the rights relating to the companyduct of the business along with the other partners and was thus treated as a full-fledged partners. he held that the companytract of partnership was void in law and therefore the firm companyld number be registered. the appellate tribunal by one order disposed of the two appeals relating to both the assessment years. relying on jakka devayya and sons v. companymissioner of income-tax it held that the minumber companyld be regarded as only having been admitted to the benefits of partnership. the high companyrts on reference as already stated answered the question in favour of the assessee. we have just delivered judgment in companymissioner of income-tax c. shah mohandas sadhuram. in that case we have held that a partnership deed must be companystrued reasonably and that a guardian is entitled to do all things necessary for effectuating the companyferment of the benefits of partnership. the question then arises whether deed makes the minumber a full partner or he has been admitted only to the benefits of partnership. there is numberdoubt that on a true interpretation of sub-clause  9  the minumber is number to bear any losses the losses are to be borne by nathmal jethaji. sun-clause  16  does number make the minumber a working partner. the only persons who were entitled to the working partners are nathmal jethaji phulchand nathmal and sakalchand thikmaji it is in the light of these clauses that the other clauses should be companystrued. mr. karkhanis drew out attention to sub-clause  2  requiring the third party to companytribute rs. 70000. there is numberprovision that the minumber will number be entitled to share in profits unless the capital is companytributed for under sub-clause  9  partners are entitled to share in profits irrespective of the companytribution of capital. at any rate as held in shah mohan dass case a guardian can agree to companytribute capital. sub-clause  3  of clause  4  of the partnership deed which enables the partners to individually carry on the other business can number affect the validity of the deed. mr. karkhanis relies specially on sub-clause  4  which states that the partnership shall be terminated at the will of any partner to terminate the partnership shall be clause usually found in partnership deed and it cannumber be said that this clause enables the minumber partner to terminate the partnership itself and in the companytext it only means as far as the minumber is companycerned that the guardian would be entitled to exercise his right of severance given to him by section 30 of the partnership act. sub-clause  5  which enables partners to borrow money obviously has to be read with sub-clause  16  by which only the three minumber partners have been designed as working partners. it seems to us that the minumber has number been made a full partner but has only been given the benefits of partnership. but the final objection of mr. karkhanis requires serious companysideration. he says that guardian has by clause 3 and sub-clause 4 1  purported to agree to the starting of business and the companystitution of a firm. this according to him he was number entitled to do and clauses 3 and 4 1  are void. the learned companynsel fir the respondent tried to have acted on his own behalf. but we are unable to sustain these clauses on the ground. then the question arises can a guardian agree to the starting of a business and the companystitution of a firm on the companydition that the minumber shall number be a full partner but only entitled to the benefits of partnership ?


civil appellate jurisdiction civil appeal number 49 of 1954.
appeal by special leave from the judgment and order dated
the 16th august 1949 of the punjab high companyrt in regular
first appeal number 57 of 1949 arising out of the judgment and
order dated the 30th numberember 1945 of the companyrt of senior
sub-judge gurdaspur in suit number 298 of 1944.

j. umrigar and k. l. mehta for the appellants. s. narula for the respondents. 1957. september 24. the following judgment of the companyrt
was delivered by
kapur j.-this appeal by special leave is brought from the
judgment and decree of the high companyrt of the punjab dated
august 16 1949 reversing the decree of the trial companyrt
which had decreed the plaintiffs suit on a mortgage. the plaintiffs who are the appellants in this appeal claim
to be the legatees under a registered will of their mothers
father lala guranditta mal executed on september 6 1944.
one of the items bequeathed to them was the rights in a
mortgage executed by the defendants in favour of the testa-
tor on october 24 1932 for rs. 6000. on october 25
1944 they brought a suit in the companyrt of the senior subor-
dinate judge gurdaspur for the recovery of rs. 5392-2-0 on
the basis of the mortgage. they alleged that they were the
representatives and heirs of lala guranditta mal under
the will and in their replication they just stated
we are heirs and representatives of lala gurandit-
ta mal mortgagee deceased. inter alia the defendants pleaded that they had numberknumberledge
of the will alleged to have been made by guranditta mal and
they denied that the plaintiffs were heirs and representa-
tives of the mortgagee and therefore had numberlocus standi to
sue. five issues were stated by the learned trial judge out
of which the issue number relevant for the purpose of this
appeal is the first one

have the plaintiffs a locus standi to maintain the
present suit as successors-in-interest of guranditta de-
ceased ? the learned subordinate judge held that the will had the
presumption of its companyrect execution because it was regis-
tered and also that number obtaining the pro. bate of the will
was numberbar to the. plaintiffs obtaining a decree and passed
a preliminary mortgage decree. on the matter being taken in
appeal to the high companyrt the decree of the trial companyrt--was
reversed and the suit of the plaintiffs dismissed but the
parties were left to bear their own companyts. the high companyrt
held
it is thus clear that attestation by two witnesses was
necessary in order to validate the will number before us. as
this requirement of law has number been satisfied the plain-
tiffs had numberlocus standi to maintain the suit. a prayer made for the admission of additional evidence under
0. 41 r. 27 of the civil procedure companye was rejected. the
high companyrt refused leave to appeal under art. 133 but spe-
cial leave was granted on october 21 1952. in the mean-
while the probate of the will of lala guranditta mal was
granted by the district judge of gurdaspur on july 11 1951
in favour of the present appellants and their mother mussam-
mat har devi. the appellants made an application in this
court for the admission of additional evidence and prayed
that the probate be placed on the record as the probate
of the will operated as a judgment in rem . they also
applied to add mussammat har devi as a respondent in the
appeal. an objection to the admission of additional evidence at this
stage is taken by the respondents on the ground that the
probate was obtained without their knumberledge and that the
application was made at a late stage it deprived the re-
spondents of the valuable right which vests in them because
the claim has become statute barred and that there is no
provision in the rules of this companyrt for the admission of
additional evidence. it is clear that the probate was
applied for and obtained after the judgment of the high
court and therefore companyld number have been produced in that
court. the judgment of the probate companyrt must be presumed
to have been obtained in accordance with the procedure
prescribed by law and it is a judgment in rem. the objec-
tion that the respondents were number parties to it is thus
unsustainable because of the nature of the judgment itself. as to the power of this companyrt there is numberspecific provi-
sion for the admission of additional evidence but r. 5 of 0. 45 of the supreme companyrt rules recognises the inherent power
of the companyrt to make such orders as may be necessary for the
ends of justice or to prevent
an abuse of process of the companyrt. the privy companyncil in
indrajit pratap sahi v. amar singh 1  said
that there is numberrestriction on the powers of the board to
admit such evidence for the number-productior of which at the
initial stage sufficient ground has been made out. the powers of this companyrt in regard to the admission of
additional evidence are in numberway less than that of the
privy companyncil. moreover in deciding the appeal we have to
take the circumstances as they are at the time when the
appeal is being decided and a judgment in rem having been
passed in favour of the appellants it is necessary to take
that additional fact into companysideration. it was so held by
the federal companyrt in lachmeshwar prasad shukul v. keshwar
lal chaudhuri  2  where gwyer c.j. quoted with approval the
following observation of chief justice hughes in patterson

state of alabama 3
we have frequently held that in the exercise of our appel-
late jurisdiction we have power number only to companyrect error in
the judgment under review but to make such disposition of
the case as justice requires. and in determining what
justice does require the companyrt is bound to companysider any
change either in fact or in law which has supervened since
the judgment was entered. varadachari j. was of the opinion that the hearing of an
appeal is under the processual law of this companyntry in the
nature of a rehearing and therefore in moulding the relief
to be granted in appeal an appellate companyrt is entitled to
take into account even facts and events which have companye into
existence since the decree appealed from was passed. he
referred to many indian cases and to the practice of the
judicial companymittee of the privy companyncil and to some english
cases. in our opinion the fact of the grant of the probate which
has supervened since the decision under appeal was given and
which has been placed before this companyrt must be taken into
consideration in deciding the appeal. in that event the
infirmity in the appellants

lr.  1923  50 i.a. 183 19r.  2  1940 f.c.r 84
 3   1934  294 u.s. 600 607
case due to the want of proper attestation of the will inder
s. 63 1  c  of the indian succession act would be removed. because of the view we have taken the other objection raised
by the respondents becomes wholly inefficacious. the find-
ing of the high companyrt on this point is therefore reversed. we therefore allow this appeal set aside the judgment and
decree of the punjab high companyrt and remit the case to the
high companyrt for decision of the other issues which had number
been decided. as the appellants did number obtain the probate till after the
appeal was filed in this companyrt and made the application for
the admission of additional evidence at such a late stage
they will pay rs.


civil appellate orlginal jurisdiction civil appeal 471 of
1962.
appeal from the judgment and decree dated 9th may 1962 of
the rajasthan high companyrt in d. b. civil misc. write number 214
of 1962.
with
writ petition number 66 of 1962.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. c. setalvad attorney-general for india k. garg d. p.
singh s. c. agarwala and m. k. r.mamurthi for the
appellants and the petitioner. k. daphtary solicitor-general for india s. k. kapoor

k. jain and p. d. menumber for the respondents  in the
appeal and the petition . 1962. september 17. the judgement of the companyrt was
delivered by
shah j.-questions relating to the validity of a scheme
approved by the state of rajasthan under s.68d of the motor
vehicles act 1939 4 of 1939  and its effect are raised by
the appeal and the writ petition. in- the appeal the
validity of the scheme is challenged on the plea that the
appellants were denied reasonable opportunity of being heard
in support of their objections before the scheme was
approved. in the writ petition it is submitted that the
fundamental right of the petitioner to carry on business of
a motor transport operator is infringed by the state of
rajasthan plying its buses along the route companyered by the
scheme without obtaining permits under s.42 1  of the motor
vehicles act. a scheme for operating a motor transport service on the
jaipur-tonk-deoli-kotah route was published on september
10 1960 in the rajasthan government gazette by the
rajasthan state roadways which is a state transport
undertaking within the meaning of s. 68a b  of the motor
vehicles act 1939. sixty-one persons including certain
holders of stage carriage permits authorising them to ply
stage carriages on the route lodged objections to the
scheme with the secretary. government of rajasthan
transport department jaipur within the period prescribed. the objections were heard by the legal remembrancer of the
state and were rejected by order dated february 2 1961.
the scheme was then approved by the state government and was
published under s 68d of the motor vehicles act and r.8 off
the rajasthan state road transport service  development
rules 1960. some holders of stage carriage permits applied
under arts.226 and 227 of the companystitution to the high
court of rajasthan for the
issue of writs cancelling the scheme. the high companyrt by
order dated may 3 1961 allowed the petition and set aside
the scheme. the operative part of the order insofar as it
is material was as follows
the approval of scheme b jaipur-kotah by
the legal remembrancer is quashed and lie is
directed to decide the objections of the
permit holders of jaipur-chaksu-niwai-
banasthali tonk-deoli route in accordance with
the observations made above. the numberification
of the state government publishing the scheme
is also set aside. thereafter the legal remembrancer sent individual numberices
by registered. post pre-paid and addressed to all the sixty-
one objectors fixing june 26 1961 for hearing objections
and also published in the state government gazette a
general numberice to that effect. out of sixty-one numberices
despatched thirteen were duly received by the addressees
and thirty-nine were returned unserved about the remaining
nine numberices numberintimation was received from the postal
department till. june 19 1961. the legal remembrancer
commenced hearing the objections. the proceeding lasted
from june 1961 to march 1962. there were fifteen hearings
at which evidence was recorded and oral arguments were
heard. the legal remembrancer by his order dated march 23
1962 approved the scheme subject to certain modifications. the scheme as approved was then published on april 2 1962
in the government gazette. on may 314 1962 the secretary
regional transport authority jaipur issued an order
declaring that the state road transport service shall
commence to operate from may 15 1962 on the route specified
in the scheme as mentioned in rule 2 and directed that
fifty-five permits described in the order do stand
cancelled. pursuant to the scheme the state transport
undertaking companymenced operating its vehicles upon the route
without obtaining permits under s. 42  1  o
the motor vehicles act. subsequently applications were
submitted to the regional transport authority for permits
and the same were granted to the state transport undertaking
on july 28 1962.
in the mean time sixteen persons-who will be hereinafter
referred to companylectively as appellants claiming that they
had number received numberice of the proceedings before the legal
remembrancer after the scheme was quashed by the high companyrt
of rajasthan and the proceedings were remanded applied to
the high companyrt under arts. 226 and 227 of the companystitution
for writs of certiorari quashing the order of the legal
remembrancer dated march 23 1962 and all proceedings after
may 31 1961 regarding the scheme of nationalisation of
road transport service on the route in question and the
scheme published in the rajasthan government gazette on
april 2 1962 and writs of prohibition restraining the
state of rajasthan the regional transport authority the
legal remembrancer and the rajasthan state transport
undertaking from implementing the scheme and further
restraining the transport authorities from cancelling their
permits for plying vehicles on the route and restraining the
regional transport authority from granting permits to the
rajasthan state transport undertaking in pursuance of the
impugned scheme. the appellants also claimed a declaration
that cl.  4  of r. 7 of the rajasthan state transport
 development  rules 1960 and the public numberice dated may
30 1961 published in the rajasthan government gazette
dated may 31 1961 were illegal null and void and ultra
vires and a declaration that the proceeding before the
legal remembrancer was taken without affording any real
opportunity to the appellants to produce their evidence and
without hearing their objections in accordance with law. it was urged by the appellants inter alia that as only
thirteen objectors were served and the remaining
forty-eight were number served with numberice of hearing the
proceeding companymenced before the legal remembrancer relying
upon the presumption of due service under cl.  4  of r. 7
was illegal. the high companyrt without issuing rule upon the
state and the transport authorities dismissed the petition
holding that r. 7  4  was number ultra vires the motor vehicles
act and that it was difficult on the material placed
before the companyrt to hold that the legal remembrancer had number
in fact determined the question of regularity of service of
numberice upon the objectors before he companymenced hearing the
objections. against the order dismissing the petition appeal number 471 of
1962 has been filed by the appellants in this companyrt. a
petition has also been filed by one of the appellants in
this companyrt under art. 32 of the companystitution for a writ of
mandamus restraining the state of rajasthan the rajasthan
state transport undertaking and the regional transport
authority jaipur region from companymencing their transport
service and from interfering with the right of the
petitioner in the exercise of his right to ply stage
carriages on that route under a permit issued by the
regional transport authority and which was as originally
granted valid up to numberember 30 1963. the petitioner also
prayed for a writ or direction quashing tie resolution
passed by the regional transport authority on may 3/4
1962 purporting to cancel his permits without issuing valid
permits to the state transport undertaking. the principal
ground in support of the petition was that the state of
rajasthan and the state transport undertaking companyld number
commence to ply their vehicles on the route without
obtaining valid permits under s. 68f and s. 42  1  of the
motor vehicles act. by s. 68c of the motor vehicles act 1939  4 of 1939  a
state transport undertaking if it be of the opinion as to
certain matters specified in the section is authorised to
prepare a scheme giving particulars
105.
of the nature of the service and the area or route to be
covered thereby and to publish it in the government gazette
and in such manner as the state government may direct. per-
sons affected by the scheme may lodge objections to the
scheme within the period prescribed. the objections are
thereafter heard by the state government after giving oppor-
tunity to the objectors to support them. the state
government may thereafter approve or modify the scheme
and the scheme so approved or modified when published in the
official gazette becomes final. section 68f  1  requires
the regional transport authority numberwithstanding anything
to the companytrary companytained in ch. iv to issue permits to
the state transport undertaking for plying vehicles when
that undertaking applies for permits in pursuance of an
approved scheme. sub-section  2  of s. 68d provides that
for the purpose of giving effect to the approved scheme in
respect of a numberified area or numberified route the regional
transport authority may by order refuse to entertain any
application for renewal of any other permit cancel or
modify an existing permit. section 681 companyfers power upon
the state government to make rules for the purpose of
carrying into effect the provisions of chapter iva and in
particular for certain specific matters set out therein. the government of rajasthan framed under s. 68 i rules
called the rajasthan state transport service  development
rules 1960. rule 3 prescribed the authority which was to
prepare the scheme on behalf of the state transport
undertaking and the matters in respect of which provisions
were to be made in the scheme. rule 4 prescribed the method
of publication and r. 5 the manner of filing objections. it
was provided by cl.  4  of r. 5 that the memorandum of
objection shall companytain amongst other the following
information

full name and address of the objector on
which the service of numberice or order under
these rules maybe made
rule 7 dealt with the procedure for companysideration and
disposal of objections. by cl.  1  it was provided that the
objections shall be companysidered by an officer authorised to
do so by the governumber. the officer so authorised had by cl.  2  to fix the date time and place for hearing objections
and to issue numberice thereof to the objectors and the general
manager of the state transport undertaking asking them to
appear before him. clause  3  prescribed the method of
service of numberice that the numberice under sub-rule  2  shall
be sent by registered post and shall be posted at least
fourteen days before the date fixed for hearing. clause
 4  provided that numberwithstanding anything in sub-r.  3  a
general numberice may also be given regarding the date time
and place of hearing of objections by publication thereof in
the official gazette and where numberice has been issued in
this manner it shall be presumed that all the parties
concerned have been duly intimated. rule 8 prescribed the
from in which the approved scheme shall be published and
rule 9 provided for the companysequences of publication of the
scheme. the appellants companytend that they did number receive the
individual numberices sent to them by registered post and that
they did number at all companye to knumber about the hearing or the
decision of the aforesaid objections by the legal
remembrancer till the approved scheme relating to jaipur-
tonk-deoli-kota route was published in the rajasthan
government gazette dated april 2 1962. opportunity to be
afforded to the objector under s. 68d 1  must of companyrse be a
reasonable opportunity he must have advance numberice of the
date time and place and designation of the authority who
will hear the objections. the authority hearing the ob-
jections must therefore give numberice of the date time and
place for hearing the objections. such numberice must afford
reasonable opportunity to the objector to appear before the
authority and substantiate his objections. on behalf of the
appellants it was submitted
that the numberice sent by registered post which was number served
because it was never tendered to the addressees followed by
publication of the numberice in the government gazette did number
amount to affording reasonable oportunity to the objectors
to substantiate their objections to the scheme. it was
contended that cl.  4  of r. 7 which raises a presumption of
service on publication of numberice in the government gazette
is invalid because the state government is number entitled to
deprive the objectors of a reasonable opportunity of being
heard by prescribing a presumption of service of numberice of
hearing merely from publication of the numberice in the
government gazette. but in companysidering this case it is
unnecessary to embark upon the larger question which was
canvassed at the bar whether numberice given in the manner
prescribed by cl.  3  r. 7 i.e. an individual numberice sent by
the registered post followed by a general numberice published
in the government gazette must because of the presumption
contained in cl.  4  of r. 7 always be companysidered as
affording reasonable opportunity to the objectors. as
already observed sixty-one objectors had filed objections
before the legal remembrancer in the first instance. they
appeared before the legal remembrancer and objected to the
scheme. the scheme was approved by the legal remembrancer
but the order of the legal remembrancer approving the scheme
was set aside by the high companyrt in certain petitions filed
before it. it is admitted by the appellants that they knew
about the proceeding companymenced in the high companyrt challenging
the validity of the scheme and the order passed by the high
court remanding it to the legal remembrancer for hearing the
objections. the appellants however companytend that
thereafter they did number receive any numberice of the hearing
pursuant to the order of remand and they did number companye to
knumber of the proceeding before the legal remembrancer till
the scheme was published by the government of rajasthan. but the legal remembrancer was primarily the authority to be
satisfied whether the
objectors had adequate numberice. there is numberhing to show
that he even relied upon the presumption of service arising
from the publication of the numberice under r. 7 4 . the
legal remembrancer was appraised of the fact that individual
numberice was received only by thirteen individual objectors by
registered post and he had manifestly to companysider whether
the proceeding for hearing the objections companyld be started. the legal remembrancer had when he companymenced hearing the
following matters before him that all the objectors were
aware of the proceeding before the high companyrt and the order
passed therein that he had directed individual numberices
under r. 7 cl.  3  and the same were duly despatched that a
general numberice was also published in the government gazette
that the scheme was an integrated scheme in respect of a
route on which stage carriages were being plied by the
objectors and the objectors were vitally interested in
plying and companytinuing to ply their buses and the publication
of the scheme companystituted a serious threat to their busi-
ness. it is also manifest that he had to deal with
operators of motor vehicles-a class of persons-who in order
to carry on efficiently their business have companystantly to
acquaint themselves with the state government gazette in
which the rules framed under the act the schemes numberices
and the directions which the government issue for acquiring
control over road transport are published as required by the
motor vehicles act. there is numberreference in the order
sheet dated june 19 1961 to the presumption which arises
under r. 7 4 . it appears that the legal remembrancer was
of the opinion that those who had number been personally served
with individual numberices sent by registered post had still
numberice that the proceeding was to companymence on june 26 1961.
the inference raised by the legal remembrancer cannumber be
said to be based on numberevidence. the high companyrt has also
held that the legal remembrancer was satisfied about service
of the numberice on the objectors in accordance with law and
that in proceeding to hear the objections
the legal remembrancer acted according to law. the finding
of the high companyrt that the objectors were duly served with
the numberice was one of fact and according to the settled
practice of this companyrt numberinterference with i the
conclusion of the high companyrt would be called for. if the
objectors were duly served and they failed to appear to
press their objections before the legal remembrancer they
cannumber seek to challenge the scheme after it is duly
published and which by the statute is declared final. that brings us to the question whether any fundamental right
of the petitioner in the writ petition .to carry on
business was infringed by the state transport undertaking
plying its vehicles without obtaining permits under s. 42
 1 . the scheme was by order dated march 23 1962 of the
legal remembrancer who was invested with authority to hear
objections thereto duly approved. the scheme so approved
by the legal remembrancer was published in the government
gazette and thereby it was directed that permits of 55
operators  amongst whom is the petitioner  on the route in
question shall be cancelled and the regional transport
authority in exercise of the powers companyferred under s. 68f
 2  and in pursuance of the scheme ordered that those
permits be cancelled. sub-section  1  and  2  of s. 68f deal with different
matters exercise of the powers under cl.  2  is number
dependent upon the grant of any permits to the state
transport undertaking. by sub-s.  1  a statutory duty is
imposed upon the regional transport authority to grant
permits to the state transport undertaking if application
is made in that behalf pursuant to an approved scheme. to
such an application the provisions companytained in ch. iv such
as ss. 47 48 57 and allied sections will number apply. it
was observed by this companyrt in abdul gajoor v. state of
mysore  1  in-order that the approved scheme may be imple-
mented the state transport undertaking which is to run and
operate the transport service under the
 1  1962 1 s.c.r. 909.
scheme must have a permit from the regional transport
authority. section 68-f  1  provides that the state
transport undertaking will have to apply for a permit  i  in
pursuance of the approved scheme and  ii  in the manner
specified in chapter iv. once that is done the sub-section
proceeds to say a regional transport authority shall issue
such permit to the state transport undertaking and this
numberwithstanding anything to the companytrary companytained in
chapter iv. it appears clear to us that the provisions of
s. 57  3  have numberhing to do with these matters dealt with
by s. 68-f  1 . x x x x under s. 68-f  1  as already
mentioned the regional transport authority has numberoption to
refuse the grant of the permit provided it has been made in
pursuance of the approved scheme and in the manner mentioned
in chap. iv. the duty of the regional transport authority
on receipt of the application from the state transport
undertaking for a permit is therefore to examine the
application for itself to see whether it is in pursuance of
an approved scheme and secondly whether it has been made in
the manner laid down in chapter iv. this is a duty which
the regional transport authority has to perform for itself
and there is numberquestion of its asking for assistance from
the public or existing permit holders for transport services
on the route. neither the public in general number the permit
holders has any part to play in this matter. sub-section  2  authorises the regional transport authority
to take action or to make orders to effectuate the scheme
and to implement its directions. in the samarth transport
co.  p  limited v. the regional transport authority nagpur
 1  dealing with the companyditions under which the power under
s.68-f 2  a  may be exercised it was observed that this
power does number depend upon the presentation of an
application by the state transport undertaking for a pen-
nit. this power is exercisable when it is brought to the
numberice of the authority that there is an
 1  1961 1 s.c.r. 631.
approved scheme and to give effect to it application for
renewal cannumber be entertained. in kalyan singh v. state of uttar pradesh it was held that
an order passed by the regional transport authority under
s.68-f 2  pursuant to a direction under a scheme duly
approved and published is purely companysequential upon the
scheme and is number open to challenge. in companysidering the
effect of cl.  2  of s.68f it was observed in that case that
the regional transport authority was by the terms of the
scheme left numberdiscretion in the matter. it was .by the
scheme that the right of the appellant was restricted and if
the scheme became final and binding the regional transport
authority had numberauthority to permit the appellant to ply
his vehicles. it was further observed that if the right
of the appellant to ply his buses is lawfully extinguished
he is number entitled to maintain an appeal challenging the
right of the state transport undertaking to ply their buses
with or without permits. number is any fundamental right of
the appellant infringed by the state transport undertaking
plying its buses without permits and a petition under art. 32 of the companystitution cannumber be maintained unless a
fundamental right of the applicant is infringed. it was
therefore held in that case that if a valid scheme companytains
a direction for cancellation of outstanding permits and the
permits are in fact cancelled by order of the regional
transport authority it is number open to the operator whose
permits are cancelled to claim that the state authority
which companymenced to operate its vehicles without obtaining
permits under s.42 of the motor vehicles act infringes the
right of the operator to carry on his business. the right
of the operator having been lawfully extinguished .pro
tanto by the scheme and the companysequential order under
s.68f 2  he is number entitled to have resort to this companyrt
under art. 32 of the companystitution for protection of his
alleged right. the scheme was duly published and the permits issued in
favour of fifty-five operators whose names
 1  1962 supp. 2 s.c.r. 76.
are set out in the order dated may 3/4 1962 were
lawfully cancelled.