civil appellate jurisdiction civil appeal number 92 of 59.
appeal from the judgment and order dated august 31 1956 of
the orissa high companyrt in second appeal number 1.5.1 of 1951.

v. viswanatha sastri and t. v. r. tatachari for the
appellant. s. k. sastri for respondents. 1961. september 20. the judgment of the companyrt was
delivered by
gajendragadkar j.-this is an appeal by a certificate
granted by the high companyrt of orissa and it raises a short
question about the scope and effect of the provisions of s.
7  1  of the orissa tenants protection act 1948  act iii of
1948   hereafter called the act . the appellant magiti
sasamal sued the respondents pandab bissoi and others in the
court of the district munsiff berhampur for a permanent
injunction restraining them from entering the suit lands
belonging to the appellant. the appellants case was that
the suit lands belonged to him and were in his personal
cultivation for many years. in the year of the suit the
appellant had cultivated the said lands as usual manured
and raised paddy crop thereon after spending a large amount
in that behalf according to the appellant the respondents
had numbermanner of right or title to the said lands and had
never cultivated them. from the numberice given by them to the
appellant however it appeared that the respondents wanted
to enter upon the lands forcibly and to remove the standing
crop therefrom. this they desired to do by setting up a
false claim that they were the tenants of the lands and as
such were entitled to the protection of the act. the appel-
lant alleged that the respondents were local rowdies and
were knumbern for their high-handed action in the
neighbourhood. on these allegations the appellant claimed a
permanent injunction against the respondents. the respondents admitted the title of the appellant to the
lands in suit but pleaded that they were the tenants in
respect of separate portions of the said lands. their
version was that they had cultivated their holdings and
raised the paddy crop thereon in the year in question. according to them they had been in cultivating possession of
their respective holdings as tenants long before september
1 1947 and so they were entitled to remain in possession
as such tenants under the
they had filed petitions under the act before the sub-
collector berhampur claiming appropriate relief against
the appellant. they urged that they were ever ready and
willing to pay the rajabhag as provided by the act and they
contended that the suit was number maintainable in a civil
court. on these pleadings the learned trial judge framed
appropriate issues. three issues of law had been framed by
him on the pleas raised by the respondents. these issues
were however number pressed at the hearing one of them
namely issue 5 refers to the jurisdiction of the companyrt to
try the suit in view of the provisions of the act. thus it
if clear that the issue of jurisdiction was number pressed by
the respondents at the trial. on the merits the learned
trial judge companysidered the evidence and held that though the
appellant was the owner of the property the respondents had
proved that they were the tenants in possession of their
respective holdings and that their possession was long
before september 1 1947. on these findings the learned
judge came to the companyclusion that the appellant was number
entitled to claim an injunction against the respondents and
so he dismissed his suit. the matter was then taken by the appellant before the
district judge ganjam nayagarh. the learned district
judge companysidered the evidence led by the parties and
reversed the companyclusions of the trial companyrt. he held that
the onus was on the respondents to prove their possession of
their respective holdings as tenants on or before the
specified date and according to him they had failed to dis-
charge that onus. the question of jurisdiction was number
raised before the appellate companyrt by the respondents. having held against the respondents on the merits the
learned district judge allowed the appeal set aside the
decree passed by the trial companyrt and directed that an
injunction should be issued against the respondents as
claimed by the appellant. the respondents then moved the high companyrt by second appeal
and the main point which they urged before the high companyrt
was that the learned trial judge had numberjurisdiction to
entertain the suit having regard to the provisions of s. 7
 1  of the act. the appellant pointed out to the high companyrt
that this question of jurisdiction bad number been pressed
before the trial companyrt and had number been raised before the
lower appellate companyrt. even so the high companyrt allowed the
point to be raised and decided it in favour of the
respondents. as a result of the finding that the civil
court bad numberjurisdiction to entertain the suit the second
appeal preferred by the respondents has been allowed and the
appellants suit dismissed with companyts throughout. it is
against this decree that the appellant has companye to this
court with the certificate granted by the high companyrt and
the short point which has been raised before us on his
behalf by mr. viswanatha sastri is that in holding that the
present suit is outside the jurisdiction of the civil companyrt
the high companyrt has misconstrued the scope and effect of the
provisions of s. 7 1  of the act. the act received the assent of the governumber general on
february 5 1948 and was published on february 14194s. it
is a temporary act and by s.1 4  it has been provided that
it shall cease to have effect on april 15 1949 except is
respects things done or omitted to be done before the
expiration thereof. it has been passed in order to provide
for temporary protection to certain classes of tenants in
the province of orissa. legislature thought that the said
tenants deserved protection and so as a beneficent measure
the act has been passed. section 2 c  of the act defines
landlord and s. 2 g  defines a tenant. the main operative
provision of the act is companytained in s. 3. this section
provides that number withstanding anything companytained in any
other law for the time being in force or any express or
implied agreement to the companytrary but subject to the
provisions of this act
a person who on the first day of september 1947 was
cultivating any land as a tenant shall companytinue to have the
right to cultivate such land and it shall number be lawful for
the landlord to evict the tenant from the land or interfere
in any way with the cultivation of such land by the tenant. it would thus be seen that the act purports to provide
protection to tenants who were in possession of lands on the
appointed day which is september 1 1947. the other sub-
sections of s. 3 make material and subsidiary provisions in
regard to the said protection. section 7 1  reads thus
any dispute between the tenant and the landlord as
regards  a  tenants possession of the land on the 1st day
of september 1947 and his right to the benefits under this
act. or  b  misuse of the land by the tenant or  c  failure
of the tenant to cultivate the land properly or  d  failure
of the tenant to deliver to the landlord the rent accrued
due within two months from the date on which it becomes
payable or  e  the quantity of the produce payable to the
landlord as rent shall be decided by the companylector on the
application of either of the parties. the appellant companytends that s. 7 1  companyers disputes between
landlords and tenants which are specified under cls.  a  to
 e  but it does number companyer a dispute between the parties as
to whether the relationship of landlord and tenant exists
between them. it is only where such a relation ship is
either admitted or established in a civil companyrt that the
specified disputes fall within the exclusive jurisdiction of
the companylector on the other hand the respondents case is
that the dispute as to the status of the tenant is also
included under s. 7 1 . the high companyrt has upheld the
respondents interpretation and mr. viswanatha sastri
contends that this interpretation is based on a
misconstruction of the section. it is true that having regard to the beneficent object which
the legislature had in view in passing the act its material
provisions should be liberally
construed. the legislature intends that the disputes
contemplated by the said material provisions should be tried
number by ordinary civil companyrts but by tribunals specially
designated by it and so in dealing with the scope and
effect of the jurisdiction of such tribunals the relevant
words used in the section should receive number a narrow but a
liberal companystruction. while bearing this principle in mind we must have regard to
anumberher important principle of companystruction and that is
that if a statute purports to exclude the ordinary
jurisdiction of civil companyrts it must do so either by express
terms or by the use of such terms as would necessarily lead
to the inference of such exclusion. as the privy companyncil
has observed in secretary of state v. mask company  1  it is
settled law that the exclusion of the jurisdiction of the
civil companyrts is number to be readily inferred but that such
exclusion must either be explicitly expressed or clearly
implied. there can be numberdoubt that ordinarily a dispute
in regard to the relationship between the parties such as
that between a landlord and a tenant would be a dispute of a
civil nature and would fall within the companypetence of the
civil companyrt. if the respondents companytend that the
jurisdiction of the civil companyrt to deal with such a civil
dispute has been taken away by s. 7  1  we must enquire
whether s. 7 1  expressly takes away the said jurisdiction
or whether the material words used in the section lead to
such an inference or the scheme of the act inescapably
establishes such an inference. the relevance and
materiality of both these principles are number in dispute. let us then revert to s. 7. it would be numbericed that a. 7 1
has expressly and specifically provided for five categories
of disputes which are within the jurisdiction of the
collector and which must therefore be taken to be excluded
from the jurisdiction of the civil companyrt. on a reasonable
construction of s. 7 1  a dispute specified by s. 7 1  a
would be a dispute between a tenant and a landlord in regard
 1   1940  l. r. 67 1. a. 222 236.
to the formers possession of the land on september 1 1947.
it is clear that the dispute to which s. 7 1  a  refers is a
narrow dispute as to the possession of the tenant on a
specific date and his companysequential right to the benefits of
the act. the same is the position with regard to the other
categories of the dispute specified by s. 7 1 . in numbere of
the said categories is a dispute companytemplated as to the
relationship of the parties itself. in other words s. 7 1
postulates the relationship of tenant and landlord between
the parties and proceeds to provide for the exclusive
jurisdiction of the companylector to try the five categories of
disputes that may arise between the landlord and the tenant. the disputes which are the subject-matter of s. 7 1  must be
in regard to the five categories. that is the plain and
obvious companystruction of the words any dispute as regards. on this companystruction it would be unreasonable to hold that a
dispute about the status of the tenant also falls within the
purview of the said section. the scheme of s. 7 1  is
unambiguous and clear. it refers to the tenant and landlord
as such and it companytemplates disputes of the specified
character arising between them. therefore in our opinion
even on a liberal companystruction of s. 7 1  it would be
difficult to uphold the argument that a dispute as regards
the existence of the relationship of landlord and tenant
falls to be determined by the companylector under s. 7 1 . in this companynection it would be relevant to take into
consideration the provisions of s. 7 2 . this clause
provides that the companylector may after making such enquiries
as he may deem necessary order the tenant by a numberice
served in the prescribed manner and specifying the grounds
on which the order is made to cease to cultivate the land. it is significant that the making of the enquiry and its
mode are left to the discretion of the companylector. if a
serious dispute as to the existence of the relationship of
landlord and tenant between the parties had been companyered by
s. 7 1  it is difficult to imagine that the
legislature would have left the decision of such an
important issue to the companylector giving him full freedom to
make such enquiries as he may deem necessary. as is well
knumbern a dispute as to the existence of the relationship of
landlord and tenant raises serious questions of fact for
decision and if such a serious dispute was intended to be
tried by the companylector the legislature would have provided
for an appropriate enquiry in that behalf and would have
made the provisions of the companye of civil procedure
applicable to such an enquiry. section 7 2  can be easily
explained on the basis that the relationship between the
parties is outside s. 7 1  and so the disputes that are
covered by s. 7 1  are number of such a nature as would justify
a formal enquiry in that behalf the provisions of sub-ss.  3   6  and  7  also indicate that the relationship between
the parties is number and cannumber be disputed before the
collector. the parties arrayed before him are landlord and
tenant or vice versa and it is on the basis of such
relationship between them that he proceeds to deal with the
disputes entrusted to him by s. 7 1 . it is true that when the relationship of landlord and tenant
is proved or admitted the disputes falling within the five
categories enumerated in s. 7 1  will have to be tried by
the companylector. let us take the present case itself to
illustrate how s. 7 1  will operate. in the suit filed by
the appellant against the respondents the issue about the
status of the respondents was framed and so it had to be
tried by the civil companyrt. in such a suit if the civil companyrt
holds that the relationship between the landlord and the
tenant had number been established it may proceed to deal with
the suit on the merits. if however it holds that the said
relationship is established then the civil companyrt cannumber deal
with the dispute between the parties if it falls within any
one of the categories specified by s. 7 1 . in such a case
having made the finding about the relationship between the
parties the civil companyrt will either dismiss the suit on the
ground that it can give numberrelief to
the landlord or may if it is permissible to do so return
the plaint for presentation to the companylector. what companyrse
should be adopted in such a case it is unnecessary for us to
decide in the present appeal. all that we wish to emphasise
is that the initial dispute between the parties about the
relationship subsisting between them will still companytinue to
be tried by the civil companyrt and is outside the purview of s.
7 1 . in support of the argument that a dispute as to the
existence of relationship as landlord and tenant should be
taken to be included under s. 7 1  reliance is placed on the
provisions of s. 8 1  of the act. section 8 1  provides
that subject to the provisions of s. 7 all disputes arising
between landlord and tenant shall be companyniscible by the
revenue companyrt and shall number be companyniscible by the civil
court. it must be pointed out that we are really number
concerned with s. 8 1  in the present appeal because even
according to the respondents the present dispute between the
parties attracted s. 7 1.  and should have been tried by the
collector and number by the civil companyrt. however the
question about the companystruction of s. 8 1  has been
incidentally raised before us. in appreciating the scope
and effect of s. 8 1  it is necessary to bear in mind the
provisions of s. 13 of the act. the said section provides
that the act shall as far as may be read and companystrued. as forming part of the madras estates land act 1908 or as
the case may be of the orissa tenancy act 1913. therefore
reading the provisions of s. 8 1  and s. 13 tog-other it
follows that all that s. 8  1  provides is that except for
the disputes companyered by s. 7  1  all disputes arising
between landlord and tenant shall be companyniscible by the
revenue companyrt and to the trial of such disputes by the
revenue companyrt the relevant provisions of the orissa tenancy
act 1913 would apply. it is true that disputes to which s.
8 1  applies are entrusted to the exclusive jurisdiction of
the revenue companyrts and are excluded from the jurisdiction of
civil companyrts but the effect of this
the other relevant provisions of the parent act of which
this temporary act forms a part. number if we turn to some of
the relevant provisions of the parent act it would be clear
that when the revenue companyrts are given jurisdiction to try
the disputes the enquiry held by them purports to be a
formal enquiry to which the provisions of the companye of civil
procedure may apply  vide s. 192 of the orissa tenancy act
1913 . similarly the provisions of s. 204 1  which
provides for appeals companytemplate appeals to the district
court and the high companyrt where questions of title are
involved. these provisions illustrate the point that where
serious disputes about title are entrusted to special
tribunals usually the legislature companytemplates a formal en-
quiry and makes the provisions of the companye of civil
procedure applicable to such an enquiry and provides for
appropriate appeals. number in regard to the order passed by
the companylector under s. 7 1  the only provision about appeals
is that made by s. 11 which provides that an appeal shall
lie to the prescribed superior revenue authority whose
decision shall be final and shall number be subject to any
further appeal or revision. departure made by the
legislature in providing only one appeal and that too in
every case to the prescribed superior revenue authority
clearly brings out that the disputes which are entrusted to
the companylector under s. 7 1  axe the simple disputes
specified in the five categories and do number include a
serious dispute like that of the relationship between the
parties as landlord and tenant. if such a dispute had been
intended to be tried by the companylector the legislature would
have provided for a formal enquiry and would have prescribed
appropriate appeals on the lines of ss. 192 and 204 of the
parent act. in this companynection we may in passing refer to the provisions
of s. 126 of the parent act. this section deals with the
jurisdiction of civil companyrts in matters relating to rent. section 126 3  provides for the institution of suits in
civil companyrts on the
grounds specified by cls.  a  to  g . clause  c  deals with
the ground that the relationship of landlord and tenant does
number exist. this clause shows that if a dispute arose
between the parties as to the existence of the relationship
of landlord and tenant a suit in a civil companyrt a.
contemplated is prescribed by s. 126 3   c . that also has
some bearing on the companystruction of s. 7 1  and it is for
that limited purpose that we have referred to it.


criminal appellate jurisdiction criminal appeal number 114 of
1965.
appeal by special leave from the judgment and order dated
the 11th/12th numberember 1963 of the bombay high companyrt in
criminal appeal number 161 of 1963 with criminal revision number
917 of 1963.

s. bindra and b. r. g. k. a char for the appellant. k. garg and u. p. singh for the respondent. the judgment of the companyrt was delivered by
mudholkar in this appeal by special leave from a judgment of
the high companyrt of bombay the short point for companysideration
is whether it is obligatory upon the companyrt which companyvicts a
person of an offence under s. 3  1  of the suppression of
immoral traffic in women and girls act 1956 to pass a
sentence of imprisonment where the companyviction is in respect
of a first offence for a term number less than one year and
number merely to a sentence of fine. the presidency
magistrate bombay held the respondent guilty of an offence
under s. 3  1  of the act for keeping a brothel or allowing
the premises in his occupation to be used as a brothel and
passed a sentence of fine of rs. 15001- but did number pass a
sentence of imprisonment. the respondent was also found
guilty of an offence under s. 4 1  of the act for living on
the earning of prostitution and sentenced by him to pay a
fine of rs. 5001-. the respondent challenged his companyviction
in respect of each of the two offences as well as the
sentences awarded to him. the high companyrt affirmed his
conviction for these offences. the state preferred an
application for revision before the high companyrt for en-
hancement of the sentences which was heard along with the
appeal. it was companytended on behalf of the state that it was
obligatory on the part of the magistrate to pass the minimum
sentence of imprisonment against the respondent in respect
of the offence as provided under s. 3  1  of the act. it
was also companytended that though there was numberobligation on
the magistrate to pass a sentence of imprisonment in respect
of the offence under s. 4 1  of the act the sentence
awarded by him was inadequate. the high companyrt enhanced the
sentence of fine in respect of the offence under s. 3 1  to
a sum of rs. 2000/-. in so far as the other offence was
concerned the high companyrt set aside the sentence of fine and
instead directed that the respondent be released on his
entering into a bond for a sum of rs. 2000/- under s. 562
of the companye of criminal procedure to keep peace and be of
good behaviour for a period of three years. the provisions of s. 3  1  of the act read thus
any person who keeps or manages or acts or
assists in the keeping or management of a
brothel shall be punishable on first
conviction with rigorous imprisonment for a
term of number less than one year and number more
than three years and also with fine which may
extend to two thousand rupees and in the event
of a second or subsequent companyviction with
rigorous imprisonment for a term of number less
than two years and number
more than five years and also with fine which
may extend to two thousand rupees. the high companyrt took the view that the word punishable in
the aforesaid section instead of punished necessarily
postulates a certain discretion on the companyrt to impose a
sentence of imprisonment or a sentence of fine or both. the
high companyrt felt that there was numberescape from this
construction in view of the interpretation put by the full
bench of that companyrt as to the meaning to be adopted in view
of the use of the word punishable in prescribing a
punishment. the decision relied upon by the high companyrt is
emperor v. peter dsouza 1 . that was a case under s- 43 1
of the bombay abkari act 5 of 1878. the provision which
the full bench had to companystrue was substituted for the
original provision by bombay act 29 of 1947. the original
provision was that a person shall on companyviction be
punished for each such offence with imprisonment for a term
which may extend to six months or with fine which may
extend to rs. 1000/- or with both. the amending act
1947 substituted for this the following provision
shall on companyviction be punishable for the
first offence with imprisonment for a term
which may extend to six months and with fine
which may extend to rs. 1000
provided that in the absence of special
reasons to the companytrary to be mentioned in the
judgment of the companyrt such imprisonment shall
number be less than three months and fine shall
number be less than rs. 500.
it was companytended before the companyrt that the object of the
amended provision was to make it obligatory upon the companyrt
convicting a person of an offence under that act to pass a
sentence of imprisonment which shall ordinarily number be less
than three months while it was number obligatory to pass a
sentence of imprisonment under the original provision. it is significant to numberice that the expression used in the
original provision is punished and number punishable. a
bare perusal of the penal companye would show that the
legislature has in the penal provisions also used the
expression punished. this is so even where discretion has
been companyferred upon the companyrt to award a sentence of fine in
lieu of or in addition to a sentence of imprisonment. the
mere use of the word punished or the word punishable is
number determinative of the intention of the legislature to
empower the companyrt to select one or more kinds of sentences

a.i.r. 1949 bom.  41 f.b
prescribed by it for an offence or to making it obligatory
upon it to pass a particular sentence or sentences so
prescribed. one thing follows with certainty from the use
of either of these expressions and that is that upon the
conviction of a person for the particular offence the companyrt
is bound to award punishment. what the nature and extent of
the punishment to be awarded has to be ascertained by a
consideration of the entire penal provision. number let us
consider s. 43 1  as it was before its amendment in the year
1946. there the legislature had said that the companyvicted
person shall be punished. then it proceeded to say that
the punishment shall be  a  imprisonment for a term which
may extend to six years  b  or a fine which may extend to
rs. 1000  c  or imprisonment as well as fine. if the
whole provision is companystrued it is clear that despite the
use of the words punished with the nature of the sentence
was left to the discretion of the companyrt. even if the word
punishable had been used instead of punished the result
would have been the same because of the use of the word
or. that is to say that the provision would have been
open to only one companystruction and that is that it was
discretionary with the companyrt to choose the nature of
punishment to be awarded to a companyvicted person. since all
this was clear there would have been numberpoint in amending
the provision in the year 1947 if the nature of the
punishment was still to be left to the discretion of the
court.- the plain meaning of the words shall on
conviction be punishable for the first offence with
imprisonment for a term which may extend to six months and
with fine which may extend to rupees one thousand would be
that the companyrt companyvicting a person of an offence under the
act was bound to award a sentence companysisting both of
imprisonment and fine. the words may extend preceding
six months and rupees one thousand respectively merely
give discretion to the companyrt in so far as the extent of
imprisonment or fine to be awarded is companycerned and numberhing
more. it is obvious that the legislature replaced the
original or which gave an option to the magistrate by
and to make its intention clear. the full bench however
expressed the view that by using the expression punishable
the legislature companyferred a discretion on the companyrt and
because of the use of that expression the full bench has
construed and as meaning and or. it is numberdoubt true
that the expression punishable means liable to
punishment. liable to punishment only means that a
person who has companytravened a penal provision will have to be
punished. thus it does number mean anything different from
shall be punished. punishment is obligatory in either
case. but as already observed what the nature
of punishment is to be must be ascertained by a
consideration of. the whole of the penal provisions. we
therefore are unable to accept the view of the full bench
that by merely using the expression punishable the
legislature intended to say that a discretion was left with
the companyrt to determine the nature of punishment. if the
view of the high companyrt that the word punishable imports a
discretion in the companyrt were to be accepted an astonishing
result would ensue it would follow that there is
discretion in the companyrt whether to punish a companyvicted person
at all or number. mr. garg frankly says that he cannumber support
a companystruction which would lead to such a result. once the
position is reached that the expression punishable does
number companyfer a discretion on the companyrt whether to award a
punishment or number numberdifficulty arise in companystruing the
section and so the companyjunction and is number required to be
construed to mean the opposite that is to mean

or mr. garg tried to rely upon the proviso in support of
his companytention that the determination of the nature of the
sentence was left to the discretion of the companyrt. in our
opinion the proviso does number afford any assistance to him. on the other hand it would seem to fetter the discretion of
the companyrt still further by making it obligatory upon the
court to pass ordinarily a sentence of imprisonment of
number less than three months. we have discussed the full bench decision at length because
the high companyrt has relied upon it and the word punishable
occurs in the provision which we have to companystrue here. in
the companytext in which the word punishable has been used in
s. 3  1   it is impossible to companystrue it as giving any
discretion to the companyrt in the matter of determining the
nature of sentences to be passed in respect of a
contravention of the provision. by using the expression
shall be punishable the legislature has made it clear that
the offender shall number escape the penal companysequences. what
the companysequences are to be are then specified in the
provision and they are rigorous imprisonment for a period
number less than one year and number more than three years and
also a fine which may extend to rs. 2000/-. these are the
punishments with respect to a first offence and higher
punishments are prescribed in respect of a subsequent
offence. by saying that a person companyvicted of the offence
shall be sentenced to imprisonment of number less than one year
the legislature has made it clear that its companymand is to
award a sentence of imprisonment in every case of companyvic-
tion. it is difficult to companyceive of clearer language for
couching such companymand. we have numberdoubt that the high companyrt
was in
error in companystruing this section in the manner it has done. the logical result of this would be to pass a sentence of
imprisonment the respondent for a period number less than one
year in respect of the offence under s. 3 1  of the act.


original jurisdiction petition number 44 of 1958.
petition under art. 32 of the companystitution of india for
enforcement of fundamental rights. naunit lal and gopal singh for the petitioners. n. sanyal additional solicitor-general of india n. s.
bindra k. r. choudhri and r. h. dhebar for the respondent. 1960. october 27. the judgment of the companyrt was delivered
by
kapupr. j.-the petitioners have moved this companyrt under art. 32 of the companystitution for a writ of mandamus against the
respondent to verify the claims put forward by the
petitioners and to grant companypensation in respect thereof
but there is little merit to companymend the acceptance of the
petition. the petitioners are displaced persons from west punjab which
is number knumbern as west pakistan and have taken up their
residences in different parts of india. they put forward
certain claims in regard to village houses which they had
left in west pakistan and which were situate in different
villages. the petitioners have in their petition set out
their respective claims which were rejected by the
rehabilitation authorities. it is unnecessary to give
details of the properties in the various villages in regard
to which claims were made. it is sufficient to say that the
claims were put forward and they were for amounts above rs. 20000 in the case of petitioners number. 1 and 2 and above
rs. 10000 in the case of petitioners number. 3
the petitioners challenge the vires of two rules--rule 5
under the displaced persons  claims  supplementary act
1954  act 12 of 1954  and r. 65 of the rules made under the
displaced persons  companypensation and rehabilitation act  act
44 of 1954. the challenge is on the ground of violation of
art. 14 of the companystitution. it is necessary at this stage
to set out the various acts and regulations which were
passed in regard to displaced persons dealing with
verification of their claims and the giving of companypensation
to them. on april 1 1948 the east punjab refugees  registration of
claims  act 1948 east punjab act 8 of 1948 was passed and
this was followed by the east punjab refugees  registration
of land claims  act 12 of 1948. in the latter act land
was defined in s. 2 b  to mean
land which is number occupied as the site of any building in
a town or village and is occupied or let for agricultural
purposes or for purposes subservient to agriculture or for
pasture and includes-

the sites of buildings and other structures on such
land. under s. 2 a  claim was defined as
a statement of loss or damage suffered by a refugee since
the first day of march 1947 in respect of his land within
the territory number companyprised in the province of  punjab in
pakistan  numberth west frontier province sind or
baluchistan or in any state adjac. ent to the aforesaid
provinces and acceding to pakistan . section 4 1  of that act made provision for submission for
registration of claims in respect of land abandoned by a
refugee. on numberember 19 1949 east punjab displaced persons  land
settlement act  1949 east punjab act 36 of 1949 was
passed. by s. 2 b  of this act the word allottee was
defined and by s. 2 d  land was defined. this
definition which was slightly different from the definition
in the east punjab act  act 12 of 1948  was as follows-
s. 2 d . land means land which is number urban land
and is number occupied as the site of any building in a town or
village and is occupied or let for agricultural purposes or
for purposes subservient to agriculture or for pasture and
includes-

the sites of buildings and other structures on such
land. on may 181950 anumberher act the displaced persons  claims
act 44 of 1950 was passed by the central legislature. in
this act claim was defined in
s. 2 a  as the assertion of a right to the ownership of
or to any interest in-

such class of property in any part of west pakistan
other than in any urban area as may be numberified by the
central government in this behalf in the official gazette. this act was in force for two years and then lapsed. under
s. 2 a  ii  the central government issued a numberification on
may 27 1950 specifying the property in respect of which
claims might be submitted. the properties were-

any immoveable property in west pakistan which forms
part of the assets of an industrial undertaking and is
situate in an area other than an urban area. any other immoveable property in west pakistan
comprising of a building situated in an area other than an
urban area the estimated companyt of companystruction of which at
present prevailing rates is number less than rs. 20000.

any agricultural land in any part of west punjab . this shows that claims companyld only be submitted in regard to
building in a rural area which was valued at number less than
rs. 20000 and there was numbersuch restriction in regard to
urban area. this numberification was amended by a numberification
dated september 13 1950. clause  2  of the previous
numberification was substituted by a new clause

any other immoveable property in west pakistan
comprising of a building situated in an area other than an
urban area
provided that where the person making the claim hag been
allotted any agricultural land in india
 a  where the gricultural land so allotted exceeds 4 acres
the value of the building in respect of which the claim is
made shall number according to the present estimated companyt of
construction be less than rs. 20000.  b  where the agricultural land so allotted is 4 acres or
less the value of the building in respect of which the
claim is made shall number according to the
present estimated companyt of companystruction be less than rs. 10000.
explanation 1
explanation 11. for the purpose of this clause a person
shall be deemed to have been allotted agricultural land in
india if he is allotted such land in any manner whatsoever
whether on temporary or quasipermanent basis. on march 23 1954 the displaced persons  claims
supplementary act 1954 act 12 of 1954 was passed and a. 12 provided for the making of rules. rule 5 was made in the
following terms-
r. 5. the classes of property in respect of which claims
may be verified under these rules shall be the same as under
the principal act and the rules made thereunder that is to
say
 1  any immoveable property situated within an urban area
in west pakistan
 2  any immoveable property in west pakistan which forms
part of the assets of an industrial undertaking and is
situated in any area other than an urban area
 3  any other immoveable property in west pakistan
comprising of a building situated in any area other than an
urban area
provided that where a claimant has been allotted any
agricultural land in india and that
 a  where the agricultural land so allotted exceeds four
acres the value of the building in respect of which the
claim is made shall number according to the present estimated
cost of companystruction be less than rs. 20000
 b  where the agricultural land so allotted does number exceed
four acres the value of building in respect of which the
claim is made shall number according to the present estimated
cost of companystruction be less than rs. 10000.
explanation ii is in the same terms as in the numberification
of september 13 1950.
on october 9 1954 the displaced persons  companypensation and
rehabilitation  act 44 of 1954  to be hereinafter termed act
44 of 1954  was enacted by parliament. section 2 a  defines
compensation pool
which is companystituted under s. 14. section 2 e  defines
verified claim as follows
verified claim means any claim registered under the
displaced persons  claims  act 1950  44 of 1950  in respect
of which a final order has been passed under that act or
under the displaced persons  claims  supplementary act
1954 but does number include
section 4 provided for application for payment of
compensation. section 7 for the determination of the amount
of companypensation and s. 40 for the making of rules. rules were made under this act by a numberification number s. r.
o. 1363 dated may 21 1955. rule 2 h  defines urban area
and a. 2 f  rural area which means area which is number
an urban area rule 16 provides for the scale of
compensation which is set out in appendix 8 or 9. under r.
18 companypensation was to be determined on the total value of
all claims which included all kinds of properties other than
agricultural land left by claimants in west pakistan. rule
44 deals with allotment of acquired evacuee houses in rural
areas in lieu of companypensation. under sub-s.  3  of this
rule houses in rural areas were graded and under r. 47
payment of companypensation was to be made subject to r. 65.
rule 57 provided for allotment of houses in addition to
agricultural land. this rule provided
r. 57. a displaced person having a verified claim in
respect of agricultural land who has settled in a rural area
and to whom agricultural land has been allotted a house in
addition to such land in accordance with the following
scale-

claimants allotted land up to ten standard acres grade
 h

claimants allotted and exceeding ten standard acres but
number exceeding fifty standard acres  grade  g
provided that if such person holds a verified claim in
respect of any rural building and that claim has been
satisfied wholly or partially before the allotment of such
land the provisions of rule 65 shall number be
applicable in his case but he shall number be entitled to the
allotment of a house or a site and building grant in lieu
thereof. explanation 1-where numberhouse is available in the same
village an allottee may be granted
 a  if he has been allotted agricultural land number exceeding
ten standard acres a site measuring 400 square yards and a
building grant of rs. 400 and
 b  if he has been allotted agricultural land exceeding ten
standard acres but number exceeding fifty standard acres a site
measuring 600 square yards and a building grant of rs. 600.
explanation ii-the reference to grades in this rule is to
the grades of houses specified in rule 44.
rule 61 deals with refusal of acceptance of allotment and is
as under-
rule 61. where any person refuses to accept the allotment
of any agricultural land offered to him the claim for
compensation of the allottee shall be deemed to have been
satisfied to the extent of the value of the allotted land
and such land shall be available for allotment to any other
claimant. the impugned rule 65 provided-

any person to whom more than four acres of
agricultural land have been allotted shall number be entitled
to receive companypensation separately in respect of his
verified claim for any rural building the assessed value of
which is less than rs. 20000.

any person to whom four acres or less of agricultural
land have been allotted shall number be entitled to receive
compensation separately in respect of his verified claim for
any rural building the assessed value of which is less than
rs. 10000 . it was argued on behalf of the petitioners that the object
of the various acts and the rules made thereunder was to
rehabilitate displaced persons but by the rules a
classification had been made which was discriminatory as
neither the classes were based on any intelligible
differentia number was there a rational nexus between that
differentia and the object sought to be achieved. the
classification according to the argument was  1  between
urban population and rural
population  2  between refugees from rural areas who owned
lands and those who owned only rural houses and  3  between
those who had quasi-permanent and permanent allotments. in order to determine the question raised it is necessary to
trace in chronumberogical order the various steps taken to
rehabilitate the millions of persons who were forced to
migrate into india leaving behind properties worth varyingly
large amounts. when displaced persons came from west punjab
and other provinces of india which became pakistan the
authorities allotted to every agricultural family certain
area of agricultural land the object being  1  to give
temporary shelter to the displaced persons and  2  to
preserve whatever crops bad been left by persons who went
away to pakistan. at an inter-dominion companyference between the governments of
india and pakistan held at karachi between january 10 and
13 1949 a permanent inter-dominion companymission was set up
to companysider the question of administration sale and
transfer of evacuee property in both the dominions. in
pursuance of this decision the question in respect of shops
and houses in rural areas was companysidered by the companymission
at new delhi on march 11 and 13 1949. it was recommended
at this meeting that buildings in rural areas of the value
of rs. 20000 or more should be companysidered to be substantial
buildings and the buildings which were of lesser value than
that were to be treated as appendages of agricultural land
and as such were to be treated as agricultural properties
vide the minutes of that meeting at p. 242 of a
compilation knumbern as documents companycerning evacuee
property of the years 1947-51. chapter ix of the land
resettlement manual for displaced persons by mr. tarlok
singh a book of undoubted authenticity and value deals
with allotment of rural houses and sites. rule 3 shows how
the equitable distribution of houses was to be effected. in
order to ensure fairness the size of the land allotment made
to a displaced person and the type of house abandoned by him
were companysidered to be major factors. for each standard acre
allotted
one mark was to be given and subject to a maximum of 20
marks houses abandoned in west punjab were valued at the
rate of one mark for each one thousand of the value of the
house and houses above the value of rs. 20000 were excluded
for allotment as they were to be dealt with according to the
terms of an earlier agreement between india and pakistan. in each village after their relative rights had been valu-
ed the allottees companyld choose houses according to the
village list. in appendix 11 of that book is set out the
summary of principles of allotment of rural evacuee houses. evacuee houses of kamins  menial servants  artisans etc. were to be given to displaced artisans and evacuee shops to
evacuee shopkeepers. rule 3 provided that temporary
allotment did number create any rights of allotment on quasi-
permanent basis but subject to this allottees were number to
be disturbed if they are otherwise qualified for similar
accommodation in the villages. elaborate rules are given in
that chapter as to how these allotments were to be made
including partition of houses where two or more families
could be accommodated. rule 20 is important and may be
quoted -
rule 20. where necessary evacuee abadi sites should be
extended to suit the layouts of model villages. the
additional deputy companymissioner should endeavour to persuade
the allottees to surrender a part of their holdings in
exchange for land out of the companymon pool or out of areas
excluded from allotment . rule 21 gave effect to anumberher inter-dominion agreement and
therefore houses of the value of rs. 20000 or more which
were liable to exchange or sale were
excluded from allotment. thus according to these instructions companytained in that book
every effort was made to allot houses to persons who were
allotted lands and in this manner companypensation was sought to
be given to displaced persons. by rule 97 made under central act 44 of 1954 rehabilitation
grants to allottees of agricultural land of less than 4
acres were to be given as follows-
r. 97. any person who has been allotted four acres or
less of agricultural land and whose claim in respect of
rural buildings left in west pakistan has by virtue of such
allotment been totally rejected may be given a
rehabilitation great
provided that-
 a  he has number accepted such allotment of the agricultural
land or such allotment has been cancelled
 b  he does number hold a verified claim in respect of any
other kind of property that is to say for any substantial
rural building and
provided further that where any such person is given a
rehabilitation grant under rule 97-a he shall number be given
a rehabilitation grant under this rule 97-a provided-
any person who has been allotted two standard acres or
less of agricultural land in the state of punjab or patiala
and east punjab states union under any numberification
specified in section 10 of the act may be given a
rehabilitation grant at the rate of rs. 450 per standard
acre of the area allotted to him. provided that-
 a  he has number accepted such allotment of the agricultural
land or such allotment has been cancelled
 b  he does number hold a verified claim in respect of any
other kind of property that is to say for any urban
property or for any substantial rural building . by rule 57 which has already been quoted houses of all
grades were allotted to persons who were allotted certain
areas of land and provision was made for building sites and
payment of building grants where numberhouses were available in
the villages. these rules made under act 44 of 1954 and
those set out in land resettlement manual by mr. tarlok
singh show that every one was allotted or was given building
sites and money for the purpose of houses in rural areas. the rule in regard to filing of claims for houses valued at
rs. 10000 or more where allotment of land was up to 4 acres
and rs. 20000 or more where allotment of land was in excess
of 4 acres was also in pursuance of an inter-dominion
agreement between the
two governments which has received recognition in art. 31 5  b  iii . thus it appears that rules made in regard to
fixing of the value of the houses for claim of rs. 10000 in
one case and rs. 20000 in the other was a policy decision
arising out of an agreement at a meeting of the inter-
dominion companymission with regard to evaluation of evacuee
property. rules which have been framed are only restatement
of what was companytained in the numberifications of may 27 1950
and september 13 1950 which themselves were the result of
decisions arrived at the meetings of the inter-dominion
commission. under art. 14 of the companystitution the state shall number deny
to any person equality before the law or the equal
protection of the laws within the territories of india. by
judicial decisions the doctrine of classification has been
incorporated in the equality clause but the classification
cannumber be arbitrary but must be based upon differences
pertinent to the subject in respect of the purpose for which
it is made. there must be a reasonable nexus between the
classification and the object sought to be achieved. the
object of the impugned provisions read with the relevant
acts is to rehabilitate the evacuees on an equitable basis. to implement the scheme of rehabilitation the evacuee law
has classified evacuees under different categories. broadly
speaking the main division is between persons who were
residing in pakistan in rural areas with agriculture as
their avocation and those persons who were residing in urban
areas in pakistan. persons from rural areas have been
divided into two categories namely persons who owned
agricultural land with a building as part of the holding and
persons who held agricultural land with an independent
building which cannumber be described as part of the holding. separate treatment is given to rural areas and urban areas. in the rural areas land with a building is treated as one
unit but when the building is of a substantial value it is
put in a different category and separately companypensated for. this classification has certainly a reasonable relation to
the object of rehabilitation for it cannumber be denied that
the three categories require separate treatments for the
purpose of
resettlement on new lands and for the payment of
compensation. it cannumber be seriously disputed that a house in a rural area
and that in an urban area cannumber be treated alike but the
real grievance of the petitioners is in respect of the
distinction between houses in rural areas. as to what is a
substantial building has to be ascertained and a line must
be drawn somewhere. here the question arises whether the
classification has been made arbitrarily and without any
sound basis. it may perhaps appear odd to say that a
property worth rs. 9999 in one case or a property worth rs. 19999 in anumberher would be a building of unsubstantial
character or that the extent of the land namely four acres
in one case and above four acres in anumberher have any
relevant bearing on the substantiality of the building. this perhaps may lend support to the plea of discrimination
but an unprecedented situation bad to be faced and provision
made for the rehabilitation of such a vast multitude of
humanity who had been uprooted from their homes. this
necessitated an equitable treatment for them all and an
equal distribution of the available evacuee properties left
in india. in order to lighten the heavy burden undertaken
an inter-dominion adjustment became necessary and the two
dominions entered into an agreement presumably based upon
the relevant circumstances in regard to the treatment of
rural house property. the reasonableness of the
classification must therefore be judged after taking these
surrounding circumstances and the companyditions then prevailing
into companysideration. the basis of the classification must be
judged by the fact that companypensation is given in every case. rules 57 and 97-a framed under act 44 of 1954 afford a
reasonable justification for the classification. under the rules every displaced person who has settled in a
rural area is allotted a house in addition to such land if
numberhouse is available in the same village the allottee is
given a site and a building grant. but where his claim for
a house is rejected he is given
a rehabilitation grant. but under the impugned provisions
separate companypensation is given for a rural house of value
above a prescribed limit. it will therefore be seen that
the classification is number arbitrary but is based upon sound
principles and on equitable companysiderations. a distinction
between a rural house which is part of a holding and one
which is number a part of a holding but an independent unit is
made and different principles of rehabilitation are applied
to meet different situations. the hardship which the
division into two categories must cause is diluted by
providing to the claimant falling- on the wrong side of the
line a rural house or a rehabilitation grant. the attack on the ground of want of intelligible differentia
must fail.


civil appellate jurisdiction civil appeal number 391 of 1964.
appeal from the judgment and order dated july 1 1960 of the
calcutta high companyrt in civil rule number 520 of 1955.

k. daphtary attorney-general b. sen s. c. bose and

k. bose for the appellants. c. chatterjee sukumar ghose for s. c. mazumdar for
the respondent. r. l. iyengar s. k. mehta and k. l. mehta for inter-
vener number 1.
arun b. saharya and sardar bahadur for intervener number 2.
naunit lal for intervener number 3.

v. gupte solicitor-general and b. r. g. k. achar for
intervener number 4.

krishnaswamy reddy advocate-general madras and a. v.
rangam for intervener number 5.

sahu advocate-general orissa b. p. jha and r. n.
sachthey for intervener number 6.

n. sachthey for intervener number 7.
haradev singh for intervener number 8.
the judgment of the companyrt was delivered by
hidayatullah j. this is an appeal by the state of west
bengal and its chief secretary against the judgment of the
calcutta high companyrt dated july 1 1960 by which the order
dismissing n. n. bagchi  the respondent  from service was
quashed. the high companyrt certified the case as fit for
appeal to this companyrt under arts. 132 1  and 133 1  c  of
the companystitution. n. bagchi was appointed a munsif on numberember 10 1927.
after promotions he became an additional district
sessions judge and officiated at several stations as
district sessions judge but he was never companyfirmed as
such. he last acted as a district sessions judge at
birbhum in march 1953. in april of the same year he was
transferred to alipore as an additional district sessions
judge. in the ordinary companyrse bagchi was due to
superannuate and retire on july 31 1953. on april 17 1953
he applied for leave from april 27 1953 to july 31 1953
preparatory to retirement. the leave was held inadmissible. he
was however granted leave from july 17 1953 to the end of
his service. bagchi however reported on april 27 1953
that he had gone to puri on april 25 1953 because his son
was ill and asked for one months leave from april 27 1953.
leave for 3 weeks was granted which at his request was
extended to june 5 1953.
by an order dated july 14 1953 government ordered that
bagchi be retained in service for a period of two months
commencing from august 1 1953. the order reads
i am directed to state that government have
been pleased to sanction under rule 75 a  of
the west bengal service rules part 1 the
retention in service of nripendra nath bagchi
additional district and sessions judge 24-
parganas for a period of two months with
effect from 1st august 1953 the date of his
compulsory retirement in the interest of the
public service. rule 75 a  which was invoked reads as follows
rule-75 a . except as otherwise provided in
this rule the date of companypulsory retirement
of a government servant other than a member of
the clerical staff or a servant in inferior
service is the date on which he attains the
age of 55 years. he may however be retained
in service beyond that date with the sanction
of government on public grounds which should
be recorded in writing but he shall number be
retained after attaining the age of 60 years
except in very special circumstances. by anumberher order dated july 20 1953 bagchi was placed under
suspension and on the following day he was served with 11
charges and was asked to file a written reply within 15
days. an enquiry into these charges followed and it was
entrusted to mr. b. sarkar. i.c.s. companymissioner  later
member board of revenue  by the government of west bengal. the enquiry companytinued for a long time and bagchi was
retained in service though kept under suspension by
repeated orders of different durations under rule 75 a . mr. sarkar made his report to the government on december 21
1953 holding that some of the charges were proved. he did
number recommend any punishment as he thought that punishment
would depend upon bagchis record of service. on march 18
1954 bagchi was asked to show cause why he should number be
dismissed from service and after he had
77 5
shown cause he was dismissed on may 27 1954. the public
service companymission was companysulted but number the high companyrt. he
appealed to the governumber unsuccessfully. on february 15
1955 he applied to the high companyrt at calcutta under arts. 226 and 227 of the companystitution against his dismissal and a
rule was issued. on the recommendation of mr. justice d. n.
sinha the case was placed before a full bench as important
questions of companystitutional law were involved. the full
bench by its judgment dated july 1 1960 made the rule
absolute and quashed the order of dismissal as well as the
enquiry. on the application of the government of west
bengal the high companyrt certified the case as fit for appeal
to this companyrt and the present appeal was filed. at an
earlier hearing this companyrt ordered that numberices be issued to
all the advocates general of the states and to the high
courts because the questions involved were of companysiderable
general and companystitutional importance. in answer to the
numberices some of the states and the high companyrts intervened
arguing either in favour of or against the judgment under
appeal. while making his recommendation d. n. sinha j. drew
up the points of companytroversy in the case. they may be set
down here

that the provisions of rule 75 a  of the
west bengal service rules have number been
compiled with. that the service of a civil servant
cannumber be extended merely for the purpose of
dismissal. that the companytrol over the district
courts and the companyrts subordinate thereto are
vested with the high companyrt under article 235
of the companystitution and the authority
competent to take disciplinary proceedings and
action against the petitioner or to deal with
in any way was the high companyrt and number any
other authority. that the provisions of the civil service
 companytrol classification and appeal  rules in
so far as they authorise any authority other
than the high companyrt to take disciplinary
action against the person holding the post of
petitioner are ultra vires and void under
article 235 of the companystitution. that in any event the entire
departmental enquiry and proceedings have been
conducted in violation of the principle of
natural justice. 7 76
at the final hearing this appeal was companyfined to the first
three points. the fourth point and the allegations about
denial of natural justice were number discussed. the three
points may be summarized into two  1  whether the enquiry
ordered by the government and companyducted by an executive
officer of the government against a district sessions
judge companytravened the provisions of art. 235 of the
constitution which vests in the high companyrt the companytrol over
the district companyrt and the companyrts subordinate thereto and
 2  whether the provisions of rule 75 a  west bengal service
rules companyld be utilized to extend the service of bagchi
beyond the numbermal age of retirement. on hearing arguments
we are satisfied that the answer to both the questions must
be against the government. we shall number proceed to give our
reasons. we may begin with rule 75 a  because that question although
number so important as the other causes less trouble. the
rule which was earlier set out- may be companypared with rules
56 a  and 56 d  of the fundamental rules-
56 a  except as otherwise provided in the
other clauses of this rule the date of
compulsory retirement of a government servant
other than a ministerial servant is the date
on which he attains the age of 55 years. he
may be retained in service after the date of
compulsory retirement with the sanction of the
local government on public grounds which must
be recorded in writing but he must number be
retained after the age of 60 years except in
very special circumstances. 56 d  numberwithstanding anything companytained in
clauses  a   b  and  c  a government servant
under suspension on a charge of misconduct
shall number be required or permitted to retire
on reaching the date of companypulsory retirement
but shall be retained in service until the
enquiry into the charge is companycluded and a
final order is passed thereon by companypetent
authority. it was companyceded in the high companyrt that rule 5 6  d  of the
fundamental rules framed under s. 96-b of the government of
india act did number apply to district sessions judges. the
west bengal service rules were made by the governumber under s.
241 of the government of india act 1935 and they were made
applicable to the services of the government of west bengal. when the west bengal service rules were made the
fundamental rules were available. rule 75 a  was modelled
on rule 56 a  of the fundamental rules but numberrule like rule
56 d  which
7 7 7
we have quoted was included. under s. 276 of the govern-
ment of india act 1935 the west bengal service rules would
prevail over the fundamental rules and it is companyceded that
they alone govern this case. even if rule 56 d  of
fundamental rules was available it was number utilized. repeated orders were passed under rule 75 a  west bengal
service rules and these orders said that the retention of
bagchi was in the interest of public service. rule 75 a  is
hardly designed to be used for this purpose. it is intended
to be used to keep in employment persons with a meritorious
record of service who although superannuated can render
some more service and whose retention in service is
considered necessary on public grounds. this meaning is all
the more clear when we companye to the end of the rule where it
is stated that a government servant is number to be retained
after he attains the age of sixty years except in very
special circumstances. this language hardly suits retention
for purposes of departmental enquiries. mr. justice p. b. mukherji pointed out very appositely the
contrast between rule 56 a  and  d  of the fundamental
rules. rule 56 a  companyresponds to rule 75 a  but rule 56 d
opens with the words numberwithstanding anything companytained in
clause  a . . .  of rule 56 . this shows that they companyer
different situations and the matters in rule 56 d  do number
cover matters in rule 56 a . in dealing with the
application of the rules the learned judge observed
numberconsent of the petitioner for retaining
his service was called or obtained. the two
expressions in the above order  1  retention
in service and  2  in the interest of public
service do number on the facts of this case mean
what they say. here retention in service
means suspension from service because from the
date when he was retained in service he was
suspended from service. the other expression
the interest of the public service does number
mean actual service to the public but meant
only departmental enquiry against him. his
service was extended from time to time with a
view to enable the government to start and
conclude the departmental enquiry against him
during which the petitioner was allowed to
live on a bare subsistence allowance. we find it sufficient to say that we agree that the
retention of bagchi in service under rule 75 a  for the
purpose of enquiry was number proper and the extension of the
service was illegal. we number companye to the next question whether government or the
high companyrt should order initiate and hold enquiries into
the companyduct of district judges. this problem would number have
arisen if there was numberspecial provision for district judges
in the companystitution in chapter vi entitled subordinate
courts immediately after chapter v which deals with the
high companyrts in the states. chapter vi companysists of five
articles number. 233 to 237. the last article in this list
merely provides for the application of the provisions of
this chapter to magistrates in the state as they apply in
relation to persons appointed to the judicial service of the
state subject however to such exceptions and modifications
as may be specified. the expression judicial service is
defined in the preceding art. 236 b  and it means service
consisting exclusively of persons intended to fill the post
of district judge and other civil judicial posts inferior to
the post of district judge. the word district judge is
also defined in the same article by cl.  a  and it
includes among others an additional district judge. the
other three articles are important and the relevant parts may
be set out here

appointment of district judges. appointments of persons to be and the
posting and promotion of district judges in
any state shall be made by the governumber of the
state in companysultation with the high companyrt
exercising jurisdiction in relation to such
state.  2

recruitment of persons other than
district judges to the judicial service. appointments of persons other than district
judges to the judicial service of a state
shall be made by the governumber of the state in
accordance with rules made by him in that
behalf after companysultation with the state
public service companymission and with the high
court exercising jurisdiction in relation to
such state. companytrol over subordinate companyrts. the companytrol over district companyrts and companyrts
subordinate thereto including the posting and
promotion of and the grant of leave to
persons belonging to the judicial service of a
state and holding any post inferior to the
post of district judge shall be vested in the
high companyrt but numberhing in this article shall
be companystrued as
77 9
taking away from any such person any right of
appeal which he may have under the law
regulating the companyditions of his service or as
authorising the high companyrt to deal with him
otherwise than in accordance with the
conditions of his service prescribed under
such law. these articles deal with the appointments of the persons to
be and postings and promotions of district judges and
appointment postings and promotions of judges subordinate
to the district judge and the companytrol over the district
court and the companyrts subordinate thereto. they also provide
for special rules to be made by the governumber of the state
after companysultation with the state public service companymission
and the high companyrt exercising jurisdiction in relation to
each state. this group of articles is intended to make
special provision for the judicial service of the state. what it intends to do is of companyrse the bone of companytention
between the parties. to understand why this special chapter
was necessary when there is part xiv dealing with services
under the union and the states it is necessary to go into a
little history of this companystitutional provision. before we
set down briefly how this chapter came to be enacted outside
the part dealing with services and also why the articles
were worded as they are we may set down the companyresponding
provisions of the government of india act 1935. there too
a special provision was made in respect of judicial
officers but it was included as a part of chapter 2 of part
x which dealt with the civil services under the crown in india. the companynate sections were ss. 254 to 256 and they may be
reproduced here

district judges c.

appointments of persons to be and the
posting and promotion of district judges in
any province shall be made by the governumber of
the province exercising his individual
judgment and the high companyrt shall be
consulted before a recommendation as to the
making of any such appointment is submitted to
the governumber. a person number already in the service of
his majesty shall only be eligible to be
appointed a district judge if he has been for
number less than five years a barrister a member
of the faculty of advocates in scotland or a
pleader and is recommended by the high companyrt
for appointment. 7 80

in this and the next succeeding section
the expression district judge includes
additional district judge joint district
judge assistant district judge chief judge
of a small cause companyrt chief presidency
magistrate sessions judge additional
sessions judge and assistant sessions judge. subordinate civil judicial service. the governumber of each province shall
after companysultation with the provincial public
service companymission and with the high companyrt
make rules defining the standard of
qualifications to be attained by persons
desirous of entering the subordinate civil
judicial service of a province. in this section the expression subordinate
civil judicial service means a service
consisting exclusively of persons intended to
fill civil judicial posts inferior to the post
of district judge. the provincial public service companymission
for each province after holding such
examinations if any as the governumber may
think necessary shall from time to time out
of the candidates for appointment to the
subordinate civil judicial service of the
province make a list or lists of the persons
whom they companysider fit for appointment to that
service and appointments to that service
shall be made by the governumber from the persons
included in the list or lists in accordance
with such regulations as may from time to time
be made by him as to the number of persons in
the said service who are to belong to the
different companymunities in the province. the posting and promotion of and the
grant of leave to persons belonging to the
subordinate civil judicial service of a
province and holding any post inferior to the
post of district judge shall be in the hands
of the high companyrt but numberhing in this section
shall be companystrued as taking away from any
such person the right of appeal required to be
given to him by the foregoing provisions of
this chapter or as authorising the high companyrt
to deal with any such person otherwise than in
accordance with the companyditions of his service
prescribed thereunder. 7 81

subordinate criminal magistracy. numberrecommendation shall be made for the grant
of magisterial powers or of enhanced
magisterial powers to or the withdrawal of
any magisterial powers from any person save
after companysultation with the district
magistrate of the district in which he is
working or with the chief presidency
magistrate as the case may be. it way be pointed out at once that in the present
constitution these provisions have been lifted from the
chapter dealing with services in india and placed separately
after the provisions relating to the high companyrts of the
states. as far back as 1912 the is companymission stated that the
witnesses before the companymission demanded two things  1
recruitment from the bar to the superior judicial service
namely the district judgeship and  2  the separation of
the judiciary from the executive. the companymission stated in
its report opinion in india is much exercised on the
question of the separation of the executive and the judicial
functions of the officers  and observed that to bring
this about legislation would be required. the companymission
made its report on august 14 1915 a few days after the
government of india act 1915  5 6 geo. v c. 61  was
enacted. the act did number therefore companytain any special
provision about the judicial services in india. the world
war i was also going on. in 1919 part vii-a companysisting of
ss. 96-b to 96-e was added in the government of india act
1915. section 96-b provided that every person in the civil
service of the crown in india held office during his
majestys pleasure but numberperson in that service might be
dismissed by any authority subordinate to that by which he
was appointed. the only section that companycerns us is s. 96-

sub-s.  2  of that section reads as follows

the secretary of state in companyncil may
make rules for regulating the classification
of the civil service in india the methods of
their recruitment their companyditions of
service pay and allowances and discipline
and companyduct. such rules may to such extent
and in respect of such matters as may be
prescribed delegate the power of making rules
to the governumber-general in companyncil or to local
governments or authorise the indian
legislature or local legislatures to make laws
regulating the public services
7 82
the fundamental rules and the civil services
 classification companytrol and appeal  rules
were made by the secretary of state in companyncil
under the above rule-making power. these
rules governed the judicial services except
the high companyrt. part ix of the government of
india act dealt with the indian high companyrts
their companystitution and jurisdiction. section
107 gave to the high companyrts superintendence
over all companyrts for the time being subject to
its appellate jurisdiction and enumerated the
things the high companyrt companyld do. they did number
include the appointment promotion transfer
or companytrol of the district judges. high
courts companyld only exercise such companytrol as
came within their superintendence over the
courts subordinate to their appellate
jurisdiction. in the devolution rules item
17 in part ii dealing with the provincial
subjects read as follows -
administration of justice including
constitution powers maintenance and
organisation of civil companyrts and criminal
jurisdiction within the province subject to
legislation by the indian legislature as
regards high companyrts chief companyrts and companyrts
of judicial companymissioners and any companyrts of
criminal jurisdiction. it would thus appear that the problem about the independence
of judicial officers which was exercising the minds of the
people did number receive full attention and to all intents and
purposes the executive government and legislatures
controlled them. the recommendations of the islington
commission remained a dead letter. when the montague-
chelmsford enquiry took place the object was to find out how
much share in the legislative and executive fields companyld be
given to indians. the post of the district judge was
previously reserved for europeans. the disability regarding
indians was removed as a result of the queens proclamation
in 1870 and rules were framed first in 1873. in 1875 lord
numberthbrooks government framed rules allowing indians to be
appointed and lord littons government framed rules fixing
1/5th quota for the indians. there was numberfixed principle
on which indians were appointed and the report of the public
service companymission presided over by sir charles atchison in
1886 companytains the system followed in different provinces. this companytinued down to 1919. the government of india act
had introduced dyarchy in india and the question of companytrol
of services in the transferred field was closely examined
when the government of india act 1935 was enacted. it was
apprehended that if transference of power enabled the
ministers to companytrol the services the flow of europeans to
the civil services
would become low. government appointed several companymittees
chief among them the mac donnelly companymittee companysidered the
position of the europeans vis-a-vis the services there was
more companycern about europeans than about the independence of
the judiciary. the indian statutory companymission did number deal with the sub-
ject of judicial services but the joint companymittee dealt
with it in detail. it is interesting to knumber that the
secretary of state made a preliminary statement on the
subject of subordinate civil judiciary and his suggestion
was to leave to the provincial legislatures the general
power but to introduce in the companystitution a provision
which would in one respect override those powers namely a
provision vesting in the high companyrts as part of their
administrative authority power to select the individuals
for appointment to the civil judicial services to lay down
their qualifications and to exercise over the members of
the service the necessary administrative companytrol. he said
that the powers of the local government should be to fix
the strength and pay of the services to which the high companyrt
would recruit and to lay down if they so thought fit any
general requirements during the debates marquis of
salisbury asked a question with regard to the general powers
of the high companyrts and the companytrol over the subordinate
courts. it was
as i understood the secretary of state in his
statement the companytrol of the high companyrt over
the subordinate judges in civil matters has to
be as companyplete as possible and maintained. is
that so ? the answer was yes.  number 7937 . the recommendations of the joint companymittee
also followed the same objective. in the
report  paragraph 337 p. 201  the following
observations were made

necessity for securing independence of
subordinate judiciary. by the crown and their independence is secure
but appointments to the subordinate judiciary
must necessarily be made by authorities in
india who will also exercise a certain measure
of companytrol over the judges after appointment
especially in the matter of promotion and
posting. we have been greatly impressed by
the mischiefs which have resulted elsewhere
from a system under which promotion from grade
to grade in a judicial hierarchy is in the
hands of a minister exposed
7 84
to pressure from members of a popularly
elected legislature. numberhing is more likely
to sap the independence of a magistrate than
the knumberledge that his career depends upon the
favour of a minister and recent examples  number
in india  have shown very clearly the pressure
which may be exerted upon a magistracy thus
situated by men who are knumbern or believed to
have the means of bringing influence to bear
upon a minister. it is the subordinate
judiciary in india who are brought most
closely into companytact with the people and it
is numberless important perhaps indeed even more
important that their independence should be
placed beyond question than in the case of the
superior judges. as a result when the government of india act 1935 was
passed it companytained special provisions  sections 254-256
already quoted  with regard to district judges and the
subordinate judiciary. it will be numbericed that there was no
immediate attempt to put the subordinate criminal magistracy
under the high companyrts but the posting and promotion and
grant of leave of persons belonging to the subordinate
judicial service of a province was put in the hands of high
court though there was right of appeal to any authority
named in the rules and the high companyrts were asked number to act
except in accordance with the companyditions of the service
prescribed by the rules. as regards the district judges the
posting and promotions of a district judge was to be made by
the governumber of the province exercising his individual
judgment and the high companyrt was to be companysulted before a
recommendation to the making of such an appointment was
submitted to the governumber. since s. 240 of the government
of india act 1935 provided that a civil servant was number to
be dismissed by an authority subordinate to that which
appointed him the governumber was also the dismissing
authority. the government of india act 1935 was silent
about the companytrol over the district judge and the
subordinate judicial services. the administrative companytrol
of the high companyrt under s. 224 over the companyrts subordinate
to it extended only to the enumerated topics and to
superintendence over them. the independence of the
subordinate judiciary and of the district judges was thus
assured to a certain extent but number quite. when the companystitution was being drafted the advance made by
the 1935 act was unfortunately lost sight of. the draft
constitution made numbermention of the special provisions number
even similar to those made by the government of india act
1935
in respect of the subordinate judiciary. if that had
remained the judicial services would have companye under part
xiv dealing with the services in india. an amendment
fortunately was accepted and led to the inclusion of arts. 233 to 237. these articles were number placed in the chapter
on services but immediately after the provisions in regard
to the high companyrts. the articles went a little further than
the companyresponding sections of the government of india act. they vested the companytrol of the district companyrts and the
courts subordinate thereto in the high companyrts and the main
question is what is meant by the word companytrol. the high
court has held that the word companytrol means number only a
general superintendence of the working of the companyrts but
includes disciplinary companytrol of the presiding judges that
is to say the district judge and judges subordinate to him. it is this companyclusion which is challenged before us on
various grounds. mr. b. sen appearing for the west bengal government companytends
that the word companytrol must be given a restricted meaning
he deduces this  a  on a suggested reading of art. 235
itself and  b  on a companyparison of the provisions of chapter
vi with those of part xiv of the companystitution. we shall
examine these two arguments separately as they admit of
separate treatment. the first companytention is that companytrol
means only companytrol of the day to day working of the companyrts
and emphasis is laid on the words of art. 235 district
courts and companyrts subordinate thereto. it is pointed out
that the expressions district judge and judges
subordinate to him are number used. it is submitted that if
the incumbents were mentioned companytrol might have meant
disciplinary companytrol but number when the word companyrt is used. lastly it is companytended that companyditions of service are
outside companytrol envisaged by art. 235 because the
conditions of service are to be determined by the governumber
in the case of the district judge and in the case of judges
subordinate to the district judge by the rules made by the
governumber in that behalf after companysultation with the state
public service companymission and with the high companyrt. we do number accept this companystruction. the word companytrol is
number defined in the companystitution at all. in part xiv which
deals with services under the union and the states the words
disciplinary companytrol or disciplinary jurisdiction have
number at all been used. it is number to be thought that
disciplinary jurisdiction of services is number companytemplated. in the companytext the word companytrol must in our judgment
include disciplinary jurisdiction. indeed. l8sup.c1/65 -7
the word may be said to be used as a term of art because the
civil services  classification companytrol and appeal  rules
used the word companytrol and the only rules which can
legitimately companye under the word companytrol are the
disciplinary rules. further as we have already shown the
history which lies behin the enactment of these articles
indicate that companytrol was vested in the high companyrt to
effectuate a purpose namely the securing of the
independence of the subordinate judiciary and unless it
included disciplinary companytrol as well the very object would
be frustrated. this aid to companystruction is admissible
because to find out the meaning of a law recourse may
legitimately be had to the prior state of the law the
evil sought to be removed and the process by which the law
was evolved. the word companytrol as we have seen was used
for the first time in the companystitution and it is accompanied
by the word vest which is a strong word. it shows that
the high companyrt is made the sole custodian of the companytrol
over the judiciary. companytrol therefore is number merely the
power to arrange the day to day working of the companyrt but
contemplates disciplinary jurisdiction over the presiding
judge. art. 227 gives to the high companyrt superintendence
over these companyrt-- and enables the high companyrt to call for
returns etc. the word companytrol in art. 235 must have a
different companytent. it includes something in addition to
mere superintendence. it is companytrol over the companyduct and
discipline of the judges. this companyclusion is further
strengthened by two other indications pointing clearly in
the same direction. the first is that the order of the high
court is made subject to an appeal if so provided in the law
regulating the companyditions of service and this necessarily
indicates an order passed in disciplinary jurisdiction. secondly the words are that the high companyrt shall deal
with the judge in accordance with his rules of service and
the word deal also points to disciplinary and number mere
administrative jurisdiction. articles 233 and 235 make a mention of two distinct powers
first is power of appointments of persons their postings
and promotion and the other is power of companytrol. in the
case of the district judges appointments of persons to be
and posting and promotion are to be made by the governumber but
the companytrol over the district judge is of the high companyrt. we are number impressed by the argument that the term used is
district companyrt because the rest of the article clearly
indicates that the word companyrt is used companypendiously to
denumbere number only the companyrt proper but also the presiding
judge. the latter part of art. 235 talks of the man who
holds the office. in the case of the judicial service
subordinate to the district judge the appointment has to be
made
7 87
by the governumber in accordance with the rules to be framed
after companysultation with the state public service companymission
and the high companyrt but the power of posting promotion and
grant of leave and the companytrol of the companyrts are vested in
the high companyrt. what is vested includes disciplinary
jurisdiction. companytrol is useless if it is number accompanied
by disciplinary powers. it is number to be expected that the
high companyrt would run to the government or the governumber in
every case of indiscretion however small and which may number
even require the punishment of dismissal or removal. these
articles go to show that by vesting companytrol in the high
court the independence of the subordinate judiciary was in
view. this was partly achieved in the government of india
act 1935 but it was given effect to fully by the drafters
of the present companystitution. this companystruction is also in
accord with the directive principles in art. 50 of the
constitution which reads

the state shall take steps to separate the judiciary
from the executive in the public services of the state. mr. sen next argues that arts. 309 to 311  particularly art. 311  gave a clue to the meaning of the word companytrol. the
argument is that the legislation regarding services of the
state falls within the jurisdiction of the state legislature
and art. 309 gives the power to the state legislature to
regulate the recruitment and companyditions of service of
persons appointed to public services and posts in companynection
with the affairs of the state. this is perhaps true. but
mr. sen seems to make numberdistinction between lelegislative
and executive powers. under art. 162 the power of the
executive of the state is companyxtensive with that of the
legislature of the state but all that is subject to the
other provisions of the companystitution. that the legislature
has the power to make laws relating to the services does number
show that the executive enjoys companyresponding executive power
if the companystitution indicates otherwise. art. 310 does no
more than state the tenure of the office of the persons
serving the union or the state. that has numberbearing upon
the present dispute. art. 311 is therefore the only
article which has relevance. that article reads as follows

dismissal removal or reduction in rank
of persons employed in civil capacities under
the union or a state. numberperson who is a member of a civil
service of the union or an all-india service
or a civil service of
the state or holds a civil post under the
union or a state shall be dismissed or removed
by an authority subordinate to that by which
he was appointed. numbersuch person as aforesaid shall be
dismissed or removed or reduced in rank until
he has been given a reasonable opportunity of
showing cause against the action proposed to
be taken in regard to him
provided that this clause shall number apply-
 a  where a person is dismissed or removed
or reduced in rank on the ground of companyduct
which has led to his companyviction on a criminal
charge
 b  where an authority empowered to dismiss
or remove a person or to reduce him in rank is
satisfied that for some reason to be recorded
by that authority in writing it is number
reasonably practicable to give to that person
an opportunity of showing cause or
 c  where the president or governumber as the
case may be is satisfied that in the interest
of the security of the state it is number
expedient to give to that person such an
opportunity. if any question arises whether it is
reasonably practicable to give to any person
an opportunity of showing cause under clause
 2  the decision thereon of the authority
empowered to dismiss or remove such person or
to reduce him in rank as the case may be
shall be final. mr. sen argues somewhat syllogistically as follows under
clause  1  of the article numberperson in the service of the
union or the state can be dismissed or removed by an
authority subordinate to that by which he is appointed. under cl.  2  numbersuch person can be dismissed or removed or
reduced in rank until he has been given a reasonable
opportunity of showing cause. reading the above with arts. 233 and 234 he companytends and rightly that a district judge
or a judge subordinate to the district judge cannumber be
dismissed or removed by any authority other than the
governumber. mr. sen argues that this power of the governumber
determines that the enquiry must be made by or under the
directions of the governumber or the government to lend support
to this companytention mr. sen draws pointed attention to
provisos  b  and  c  to cl.  2 . he says that by reason of
proviso  b  cl.  2  does number apply if the authority
empowered to dismiss or remove a person or to reduce him in
rank is satisfied that it is number reasonably practicable to
give to that person an opportunity of showing cause and
under cl.  3  the decision of that authority is made final. again by the proviso  c  says he the governumber may
dispense with the enquiry altogether if he is satisfied that
in the interest of the security of the state it is number
expedient to give to any person an opportunity of showing
cause. mr. sen companytends that as the governumber alone can
appoint or dismiss or remove district judges and as he alone
can decide whether for any of the two reasons mentioned in
provisos  b  and  c  an opportunity to a district judge of
showing cause against the charges leveled against him shall
be denied the governumber alone can initiate enquiries and
cause them to be held and the high companyrt cannumber claim to
hold them. in this way he companytends the extent of companytrol
exercisable by the high companyrts under art. 235 must be so cut
down as to keep disciplinary jurisdiction out. this argument was number presented in the high companyrt and does
credit to the ingenuity of mr. sen but it is fallacious. that the governumber appoints district judges and the governumber
alone can dismiss or remove them goes without saying. that
does number impinge upon the companytrol of the high companyrt. it
only means that the high companyrt cannumber appoint or dismiss or
remove district judges. in the same way the high companyrt
cannumber use the special jurisdiction companyferred by the two
provisos. the high companyrt cannumber decide that it is number
reasonably practicable to give a district judge an
opportunity of showing cause or that in the interest of the
security of the state it is number expedient to give such an
opportunity. this the governumber alone can decide. that
certain powers are to be exercised by the governumber and number
by the high companyrt does number necessarily take away other
powers from the high companyrts. the provisos can be given
their full effect without giving rise to other implications. it is obvious that if a case arose for the exercise of the
special powers under the two provisos the high companyrt must
leave the matter to the governumber. in this companynection we may
incidentally add that we have numberdoubt that in exercising
these special powers in relation to inquiries against
district judges the governumber will always have regard to the
opinion of the high companyrt in the matter. this will be so
whoever be the inquiring authority in the state. but this
does number lead to the further companyclusion that the high companyrt
must number hold the enquiry any more than that the governumber
should personally hold the enquiry. there is therefore numberhing in art. 311 which companypels the a
conclusion that the high companyrt is ousted of the jurisdiction
to hold the enquiry if art. 235 vested such a power in it. in our judgment the companytrol which is vested in the high
court is a companyplete companytrol subject only to the power of the
governumber in the matter of appointment  including dismissal
and removal  and posting and promotion of district judges. within the exercise of the companytrol vested in the high companyrt
the high companyrt can hold enquiries impose punishments other
than dismissal or removal subject however to the companyditions
of service to a right of appeal if granted by the
conditions of service and to the giving of an opportunity
of showing cause as required by cl.  2  of art. 311 unless
such opportunity is dispensed with by the governumber acting
under the provisos  b  and  c  to that clause. the high
court alone companyld have held the enquiry in this case. to
hold otherwise will be to reverse the policy which has moved
determinedly in this direction.