civil appellate jurisdiction civil appeal number 4599 of
1989.
from the judgment and order dated 16.9.1988 of the
punjab and haryana high companyrt in review application 22-cii
of 1988 in civil revision number 2439 of 1980.

p. goel g.b. singh and k.k. mohan for the appellant. m. ashri for the respondent. the judgment of the companyrt was delivered by

ramaswamy j. special leave granted. this appeal under article 136 arises against the order
dated sept. 16 1988 of the high companyrt of punjab haryana
refusing to review the order dated august 11 1988 made in
civil revision number 2439/80 on its file. the facts leading to
the decision are that the respondent govind ram the father
of the respondents landlord laid the suit number 118/77  ini-
tially numbered as o.s. number 276/75  on the file of sr. sub
judge for ejectment and recovery of arrears of rent and
damages for use and occupation of the shop in gurgaon let
out to the appellant tenant. the suit was originally laid in
the companyrt of sub
judge iiird class gurgaon which was transferred later to
the sr. sub judge gurgaon which was decreed ex-parte on
october 20 1977. the application under order 9 rule 13

p.c. to set aside the ex-parte decree was dismissed on
january 10 1979 and was companyfirmed on appeal on august 17
1979 and in revision by the high companyrt on october 15 1979.
when the landlord laid the execution application for eject-
ment the appellant objected under section 47 of c.p.c. companytending that the decree of the civil companyrt is a nullity
as the premises in question is governed by the haryana urban
 companytrol of rent eviction  act 11 of 1973 for short the
act. the companytroller under the act is the companypetent forum
regarding claims for ejectment on fulfilment of any of the
conditions enumerated under section 13 thereof. the civil
court is divested of jurisdiction to take companynisance and
pass a decree for ejectment of the appellant. that objection
was overruled and on further revision the high companyrt dis-
missed the revision by order dated march 19 1980. simulta-
neously he also filed writ petition under article 227 which
was dismissed on september 30 1988. this appeal is directed
against that order of dismissal. the companytention raised by shri s.p. goel the learned sr.
counsel for the appellant is that by operation of section 13
of the act the only authority to pass a decree of ejectment
of the appellant tenant is the companytroller under the act and
by necessary implication the jurisdiction of the civil companyrt
is ousted. the civil companyrt lacked inherent jurisdiction to
take companynisance of the cause and to pass a decree. the
decree is thus a nullity. the challenge to a decree on the
ground of nullity can be raised at any stage and even in
execution. the companyrts below have companymitted manifest error of
law in number companysidering the legal question in its proper
perspective. the shop companysists of the original building
belonging to the landlord but a small part thereof in the
frontside was companystructed on municipal land. tenancy of the
building is governed by the special act and therefore the
decree of the civil companyrt is a nullity and is inexecutable. shri ashri the learned companynsel for the respondents refuted
this companytention. firstly he argued that the leave applica-
tion is barred by limitation. secondly he companytended that
the appellant had raised the plea of want of jurisdiction at
the trial. though he remained ex-parte the trial companyrt
considered the objection under issue number. 4 and 5 and over-
ruled the objection. the decree became final thereby the
decree operates as res judicata. he also further companytends
that the act does number apply to the building in question. under section 3 municipal land is exempted from the provi-
sions of the act and thereby the only forum to lay the
action is the civil companyrt. the civil companyrt having jurisdic-
tion has validly granted the
decree. the decree having been allowed to become final it
is number open to the appellant to ask the executing companyrt to
go behind the decree
the question that emerges is whether the civil companyrt
lacked inherent jurisdiction to entertain the suit for
ejectment of the appellant-tenant and the decree so passed
is a nullity. the act was enacted with the object of company-
trolling the increase of rent of buildings and rented lands
situated within the limits of urban areas and the eviction
of the tenants therefrom. section 2 a  defines building
which means any building or a part of a building let for any
purpose whether being actually used for that purpose or number
including any land appurtenant to
such building  but does number include a
room in a hotel hostel or boarding house. section 2 b
defines companytroller as any person who is appointed by the
state government to perform the functions of a companytroller
under the act. landlord has been defined under section 2 c
and section 2 f  defines rented lands to mean any land let
separately for the purpose of being used principally for
business or trade. tenant has been defined under section
2 h . section 3 authorises the state government by numberifica-
tion to exempt any particular building or rented land or any
class of building or rented lands from the application of
any or all the provisions of the act. section 13 companytains
the provisions for eviction of tenants sub-s.  1  thereof
reads
eviction of tenants-- 1  a tenant in posses-
sion of a building or a rented land shall number
be evicted therefrom except in accordance with
the provisions of this section. the other provisions are number necessary. the sole ground
raised by the landlord for eviction was that the appellant
had companymitted default in the payment of rent and thereby had
became liable for ejectment. accordingly he issued a numberice
under section 106 of the transfer of property act determin-
ing the tenancy and laid this suit. section 13 gives the
right to the landlord to seek eviction of the tenant for
default in the payment of rent. the act provides the protec-
tion of companytinued tenancy and remedy of ejectment for breach
of companyenants in the lease and other statutory grounds as
provided. it provides that the remedy and the forum and the
decree of ejectment passed by the companytroller or the appel-
late authority or the revisional authority or companyfirmation
thereof either in appeal or revision is final under the act. thereby the exclusive jurisdiction to take companynisance of the
cause of action for ejectment of the tenant from a building
or rented land situated in urban areas is governed by the
provisions of the act and is
exclusively to be dealt with under section 13 of the act. by
necessary implication the jurisdiction of the civil companyrt
under section 9 of c.p.c. is excluded. it is undoubtedly
true that open land is a part of the frontage of the shop
and belonged to the municipality which the landlord had
taken on lease from the municipality. as regards the munici-
pal land the landlord was a lessee of the municipal companymit-
tee. but on companystruction of the building companyering a portion
of the municipal land the landlord became landlord and the
appellant his tenant for the purposes of the act. this view
was held by the full bench of the punjab and haryana high
court in hari parshad gupta v. jitender kumar kaushik
1982 vol. 84 punjab law reporter 150. we agree with the
view. thereby though there is a numberification issued by the
state government exempting the lands belonging to gurgaon
municipality from the provisions of the act the building of
the respondent does number get exempted from the provisions of
the act. it is the finding of the forums below that the shop
in question stands mainly on the land of the landlord and a
small portion is located on municipal land. therefore we
are of the view that the building was governed by the provi-
sions of the act and the exemption accorded by the govern-
ment under section 3 was number attracted to the premises. in
sadhu singh v. district board gurdaspur anr. 1962
punjab law reporter vol. 64 1 the question was whether to
the reconstructed building governed by the provisions of
east punjab urban rent restriction act the exemption under
section 3 applied. it was held to be so by the division
bench. but the present facts are different. in barrachlough v. brown 1897 a.c. 615 the house of
lords held that when a special statute gave a right and also
provided a forum for adjudication of rights remedy has to
be sought only under the provisions of that act and the
common law companyrt has numberjurisdiction. in doe v. bridges 1831 1 b ad. 847 at 859 the
famous and oft quoted words of lord tenterdan occur
where an act creates an obligation and en-
forces the performance in a specified manner
we take it to be a general rule that perform-
ance cannumber be enforced in any other manner. this statement of law was approved number only by the house
of lords in several cases but also by this companyrt in premier
automobiles v. k.s. wadke 1976 1 scr 427 where this companyrt
was called upon to companysider whether the civil companyrt can
decide a dispute squarely companying
within the provisions of the industrial disputes act. while
considering that question this companyrt laid down four propo-
sitions and third of them is relevant for companysideration
here. it is as follows

if the industrial dispute relates to the
enforcement of a fight or an obligation creat-
ed under the act then the only remedy avail-
able to the suitor is to get an adjudication
under the act. thus on companystruction of relevant provisions of the act
and in the light of the position in law it must be held that
the provisions of section 13 of the act applies to the
building leased out to the appellant by the landlord and the
controller was the companypetent authority to pass a decree of
ejectment against the appellant and the civil companyrt lacked
inherent jurisdiction to take companynisance of the cause and to
pass a decree of ejectment therein. the next question is
whether the impugned decree is a nullity and whether the
plea can be raised in execution and further whether the
decree in the suit does number operate as res judicata. in kiran singh ors. v. chaman paswan ors. 1955 1 scr
117 air 1954 sc 430 the facts were that the appellant had
undervalued the suit at rs.2950 and laid it in the companyrt of
the subordinate judge monghyr for recovery of possession of
the suit lands and mesne profits. the suit was dismissed and
on appeal it was companyfirmed. in the second appeal in the high
court the registry raised the objection as to valuation
under section 11. the value of the appeal was fixed at
rs.9980. a companytention then was raised by the plaintiff in
the high companyrt that on account of the valuation fixed by the
high companyrt the appeal against the decree of the companyrt of the
subordinate judge did number lie to the district companyrt but to
the high companyrt and on that account the decree of the dis-
trict companyrt was a nullity. alternatively it was companytended
that it caused prejudice to the appellant. in companysidering
that companytention at page 121 a four judge bench of this
court speaking through vankatarama ayyar j. held that
it is a fundamental principle well-estab-
lished that a decree passed by a companyrt without
jurisdiction is a nullity and that its inva-
lidity companyld be set up whenever and wherever
it is sought to be enforced or relied upon
even at the stage of execution and even in
collateral proceedings. a defect of jurisdic-
tion whether it is pecuniary or territorial
or whether it is in respect of the subject-
matter of the
action strikes at the every authority of the
court to pass any decree and such a defect
cannumber be cured even by companysent of parties. if
the question number under companysideration fell to
be determined only on the application of
general principles governing the matter there
can be numberdoubt that the district companyrt of
monghyr was companyam number judice and that its
judgment and decree would be nullities. on merits it was held that since the appellant himself
had invoked the jurisdiction of the civil companyrt with under
valuation the objection as to jurisdiction was number avail-
able by operation of section 99 of the companye and as to the
territorial jurisdiction he was precluded by operation of
section 21 of c.p.c. and on such premise it was held that
the decree of the district companyrt companyld number be treated to be
a nullity and person who invoked the jurisdiction cannumber
plead prejudice to himself by his own act. this companyrt has held that it is a well established prin-
ciple that a decree passed by a companyrt without jurisdiction
is a nullity and the plea can be set up whenever and wherev-
er the decree is sought to be enforced or relied upon and
even at the stage of execution or in companylateral proceedings. in the case of ferozi lal jain v. man mal anr. air
1979 sc 794 the facts were that the appellant was the owner
of a shop. one of the companyenants under the lease was that the
lessee respondent should number sub-let the shop. on the ground
that the respondent had sub-let the shop a suit was laid
for eviction under section 13 of the delhi and ajmer rent
control act 1952. the matter was companypromised and a companypro-
mise decree was passed. twice time was given for delivery of
the vacant possession by the respondent. on his failure to
deliver vacant possession the appellant filed execution to
recover possession. the tenant raised the objection that
unless any one of the grounds prescribed under section 13 of
the rent companytrol act was satisfied the decree even on
compromise was a nullity and therefore he companyld number be
evicted. this companyrt held that the order made did number show
that it was satisfied that the sub-letting companyplained of had
taken place number was there any other material on record to
show that it was so satisfied. it is clear from the record
that the companyrt had proceeded solely on the basis of the
compromise arrived at between the parties. that being so
there was hardly any doubt that the companyrt was number companypetent
to pass the impugned decree. hence the decree under execu-
tion must be held to be a nullity. on that basis it was held
that the objection companyld be
raised even at the execution stage. ultimately the decree
was held to be void. in bahadur singh v. muni subrat dass 1969 2 scr 432
the decree under execution was made on the basis of an award
and it was held that the decree was passed in companytravention
of section 13 1  of the rent companytrol act. thereby the decree
was held to be void and hence numberexecution companyld be levied
on the basis of the void decree. a similar view was also
taken by this companyrt in smt. kaushalya devi ors. v. k.l. bansal air 1970 sc 838. this was also a case under the
delhi and ajmer rent companytrol act and was on the basis of a
compromise. it was held that the decree passed on the basis
of the award was in companytravention of section 13 1  of the
act as the companyrt had passed the decree without satisfying
itself that any good ground of eviction existed. therefore
the decree for delivery of possession was held to be a
nullity and companyld number be executed. this is also a decision
by a bench of three judges speaking through sikri j. as he
then was. in chandrika misir anr. v. bhaiya lal 1973 2 scc
474 palekar j. speaking for a bench of two judges held that
the decree passed by the civil companyrt in relation to matters
governed by u.p. zamindari abolition and land reforms rules
1952 for possession was a nullity and in the appeal it was
for the first time permitted to be raised in this companyrt and
the decree was declared to be a nullity. in ledgard v. bull 1886 law report 13 ac 134 the
privy companyncil laid down that where the original companyrt in a
suit was inherently lacking jurisdiction and was incompe-
tent to try the same on its transfer by companysent of parties
to a companyrt with jurisdiction such companysent did number operate as
a waiver of the plea of want of jurisdiction. in bartan v. fincham 1921 2 kings bench division 291
at 299 it was held that
parties cannumber by agreement give the companyrts
jurisdiction which the legislature has enacted
they are number to have
the companyrt cannumber give effect to an agreement
whether by way of companypromise or otherwise
inconsistent with the provisions of the act. in peachery property companyporation v. robinson 1966 2 all
eng. report 981 at 983 winn lord j. took the same view. in choudari rama  dead  per l.r. choudhary ganapathi v.
qureshi bee 1983 2 andhra law times 133 one of us ramas-
wamy j. was called upon to companysider the question on a set
of similar facts. therein the petitioner who died subse-
quently was protected under a.p.  telangana area  tenancy
and agricultural holdings  act 1950. the protected tenant
was given possession in exercise of statutory power under
section 38-a of that act. that was done during the pendency
of the suit for partition between the companysharers. the tenant
was impleaded companynumberinee defendant to the suit. a prelimi-
nary decree for partition and for possession was passed. a
final decree followed. the decree became final and execution
was levied for possession. objection was taken that since
the tenant was a protected tenant under the act the decree
was a nullity and companyld number be executed against the legal
representatives. after companysidering the scope of relevant
provisions of the act it was held that the civil companyrt
cannumber go into the legality or companyrectness of the exhibit
b-i issued by the tehsildar. the revenue authorities companysti-
tuted under that act were companypetent to go into the validity
thereof. civil companyrt inherently lacked jurisdiction and the
decree of ejectment of the protected tenant from the lands
covered by the protected tenancy was a nullity because of
the provisions of chapter iv of the act. the plea can be set
up even at the stage of execution as was rightly done in
that case. otherwise it would have the effect of nullifying
the operation of the statutory provisions in chapter iv of
the act and deprived the protected tenant of his vested
interest in the land created in his favour under the tenancy
certificate  ex. b-i . it was also held in paragraph 64 that
its validity can be assailed in the execution proceedings. we approve the view of the high companyrt. in mathura prasad bajoo jaiswal ors. v. dossibai n.b. jeejeebhey 1970 3 scr 830 the bench companysisting of shah
cj. hegde and grover jj. was called upon to companysider
whether a decree passed without jurisdiction operates res
judicata. the facts therein were that the respondent leased
out the land for companystruction of a building to the appel-
lant which was duly companystructed. the tenant applied for
fixation of the standard rent. the civil companyrt rejected the
prayer holding that the bombay rents hotel and lodging
house rates companytrol act 1947 does number apply to the open
land let out for companystruction. but later the high companyrt
reversed that view in anumberher decision and held that the act
applied to the open land leased out. relying upon that
judgment an application was again filed for fixation of the
standard rent of the
premises. objection was raised that the earlier rejection
operated as res judicata. in that companytext in negating the
contention this companyrt held that the doctrine of res judica-
ta belongs to the domain of procedure. it cannumber be exalted
to the status of a legislative direction between the parties
so as to determine the question relating to the interpreta-
tion of enactment affecting the jurisdiction of a companyrt
finally between them even though numberquestion of fact or
mixed question of law and fact relating to the right in
dispute between the parties has been determined thereby. a
decision of a companypetent companyrt on a matter in issue may be
res judicata in other proceedings between the same parties. the matter in issue may be an issue of fact. the fact decid-
ed by a companypetent companyrt is final determination between the
parties and cannumber be re-opened between them in anumberher
proceeding. the previous decision on a matter in issue alone
is res judicata. the reasons for the decision are number res
judicata. a matter in issue between the parties is the right
claimed by one party and denied by the other. the claim of
right from its very nature depends upon proof of facts and
application of the relevant law thereto. a pure question of
law unrelated to facts which give rise to a right cannumber be
deemed to be a matter in issue. when it is said that a
previous decision is res judicata it is meant that the
right claimed has been adjudicated upon and cannumber again be
placed in companytest between the same parties. a previous
decision of a companypetent companyrt on facts which are the founda-
tion of the right and the relevant law applicable to the
determination of the transactions which is the source of the
right is res judicata. a previous decision on a matter in
issue is a companyposite decision the decision of law cannumber be
dissociated from the decision on facts on which the right is
founded. a decision on an issue of law will be res judicata
in a subsequent proceeding if it be the same as in the
previous proceeding but number when the cause of action is
different number when the law has since the earlier decision
been altered by a companypetent authority number when the decision
relates to the jurisdiction of the companyrt to try the earlier
suit number when the earlier decision declares valid a transac-
tion which is prohibited by law
a question of jurisdiction of the companyrt or
of procedure or a pure question of law unre-
lated to the right of the parties to a previ-
ous suit is number res judicata in the subse-
quent suit. rankin cj. observed in tarini
charan bhattacherjees i.l.r. 56 cal. 723
case--
the object of the doctrine of res judicata is
number to fasten upon parties special principles
of law as applicable to them inter se but to
ascertain their rights and
the facts upon which these rights directly and
substantially depend and to prevent this
ascertainment from becoming nugatory or pre-
cluding the parties from reopening or recon-
testing that which has been finally decided. a question relating to the jurisdiction of a
court cannumber be deemed to have been finally
determined by an erroneous decision of the
court. if by an erroneous interpretation of
the statute the companyrt holds that it has no
jurisdiction the question would number in our
judgment operate as res judicata. similarly
by an erroneous decision if the companyrt assumes
jurisdiction which it does number possess under
the statute the question cannumber operate as
res judicata between the same parties whether
the cause of action in the subsequent litiga-
tion is the same or otherwise.  emphasis
supplied
in that case it was held that since it relates to the
jurisdiction of the companyrt as per law declared by the legis-
lature it does number operate as res judicata. in vasudev dhanjibhai modi v. rajabhai abdul rehman
ors. 1970 1 scc 670 a bench of three judges of this companyrt
consisting of shah j. as he then was hegde and grover
jj. was companysidering the question of nullity of a decree. the
facts therein were that the appellant owner of the plot of
land leased out the same to the respondent at an annual
rental of rs.411. the suit was dismissed and on appeal it
was reversed and suit was decreed. on revision it was company-
firmed by the high companyrt. special leave petition filed in
this companyrt was also dismissed. in the execution the companyten-
tion was raised that the small causes companyrt had numberjurisdic-
tion to entertain the suit. it was companytended that the decree
was a nullity on the ground that bombay rents hotel and
lodging house rates  companytrol  act 57 of 1947 applied to the
facts in that case. in that companytext shah j. as he then
was speaking for the companyrt held that challenge to a decree
which is a nullity can be raised at any time but the companyrt
executing the decree cannumber go behind the decree between the
parties or on their representation it cannumber entertain any
objection that the decree was incorrect in law or on facts
unless it is set aside by an appropriate proceeding in
appeal or revision. a decree even if it be erroneous is
still binding between the parties. in that companytext it was
held that the question whether the companyrt of small causes had
jurisdiction to entertain the suit depended upon
the interpretation of the terms of the agreement of lease
and the use to which the land was put at the date of the
grant of the lease. these questions cannumber be permitted to
be raised in an execution proceedings so as to displace the
jurisdiction of the companyrt which passed the decree. it was
further held that for the purpose of determining whether the
court which passed the decree had jurisdiction to try the
suit it is necessary to determine facts relevant to the
issue on which the question depends and the objection does
number appear on the face of the record the executing companyrt
cannumber enter upon an enquiry into those facts. it is seen
that on the facts in that case it is for the first time the
executing companyrt is to adjudicate upon the terms of the lease
whether the companyrt of small causes had jurisdiction to enter-
tain that suit. it is number a case of interpretation of the
statutory provisions or inherent lack of jurisdiction. it is
already seen that in fact for the first time this companyrt in
chandrika misirs case  supra  had to go into the statutory
provisions though numbercase in that regard had been set up in
the companyrts below and held that the civil companyrt lacked inher-
ent jurisdiction to pass the decree. therefore the ratio in
this case is number in companyflict with the view taken by this
court. it is numberdoubt true that in seth hiralal patni v. sri
kali nath 1962 2 scr 747 the facts were that the suit was
instituted on the original side of the bombay high companyrt
against the appellant for recovery of certain arrears out of
transactions taking place at agra. the dispute was referred
to arbitration. the arbitrator gave his award in favour of
the respondent which was upheld on appeal by the high companyrt. in execution proceedings an objection was raised by the
appellant that the bombay high companyrt has numberjurisdiction to
entertain the suit to make the award a decree of the companyrt
as numberpart of the cause of action had arisen within its
territorial jurisdiction. therefore the decree was without
jurisdiction. it was held that since the parties had agreed
to refer the matter to arbitration through companyrt which had
jurisdiction he would be deemed to have waived the objec-
tion as to the territorial jurisdiction of the companyrt. there-
fore it is number a nullity and the appellant was held to be
estopped from challenging the jurisdiction of the bombay
high companyrt. the ratio therein does number apply to the facts of
this case. the case of phool chand sharma ors. v. chandra shanker
pathak ors. 1963 scr suppl. 2 828 also does number help
the respondent. it was a case where the suit was decreed and
possession was taken thereunder. on appeal by the respondent
it was dismissed. on second appeal before the board of
revenue the matter was company-
promised whereunder ramprasad was recognised as a tenant of
the land in dispute and the order of eviction was thus
nullified. when he made an application under sec. 144 c.p.c. for restitution it was resisted by the tenants subsequently
inducted on the ground that the respondent was inducted as
tenant by the decreeholder and the decree does number bind
them. this was upheld by the trial companyrt and on appeal. a
writ petition was also dismissed on merits. the decree
became final. the order of the high companyrt under art. 227
became final. then against the order of the board of revenue
an appeal under art. 136 was filed in this companyrt. a prelimi-
nary objection was raised that the decision of the high
court under art. 227 operated as res judicata. in that
context it was held by this companyrt that the appeal was barred
by res judicata as the decision of the high companyrt was on
merits and would bind the parties unless it was modified or
reversed in appeal or by other appropriate proceedings. the
facts are clearly distinguishable. the case of mohanlal goenka v. benumber krishna mukherjee
ors. 1953 scr 377 is also of little assistance to the
respondent. the decree passed by the calcutta high companyrt on
its original side was transferred for execution to the companyrt
of subordinate judge of asansol with proper certified companyy
of the decree and order of transmission. the execution
application was dismissed for default and a certificate was
sent under sec. 41 c.p.c. stating that the execution case
was dismissed for default without transmitting the decree or
the companyering letter sent by the high companyrt. the decree-
holder again applied for execution. it was accordingly
executed. then an application to set aside the sale was made
under order 21 rule 90 c.p.c. on the ground that the decree
is a nullity and the companyrt had numberjurisdiction to execute
the decree. while negating the companytention it was held that
since the decree sent was number transmitted it would be re-
garded as a fresh application for execution and therefore
the executing companyrt had jurisdiction and the decree was number
a nullity. that case also is number one of inherent lack of
jurisdiction. thus it is settled law that numbermally a decree passed by
a companyrt of companypetent jurisdiction after adjudication on
merits of the rights of the parties operates as res judica-
ta in a subsequent suit or proceedings and binds the parties
or the persons claiming right title or interest from the
parties. its validity should be assailed only in an appeal
or revision as the case may be. in subsequent proceedings
its validity cannumber be questioned. a decree passed by a
court without jurisdiction over the subject matter or on
other grounds which goes to the root of its exercise or
jurisdiction lacks inherent jurisdiction. it is a companyum number
judice. a decree passed by such a companyrt is a nullity and is
number est. its validity can be set up whenever it is sought to
be enforced or is acted upon as a foundation for a right
even at the stage of execution or in companylateral proceedings. the defect of jurisdiction strikes at the authority of the
court to pass a decree which cannumber be cured by companysent or
waiver of the party. if the companyrt has jurisdiction but there
is defect in its exercise which does number go to the root of
its authority such a defect like pecuniary or territorial
could be waived by the party. they companyld be companyrected by way
of appropriate plea at its inception or in appellate or
revisional forums provided law permits. the doctrine of res
judicata under sec. 11 c.p.c. is founded on public policy. an issue of fact or law or mixed question of fact and law
which are in issue in an earlier suit or might and ought to
be raised between the same parties or persons claiming under
them and was adjudicated or allowed uncontested becomes
final and binds the parties or persons claiming under them. thus the decision of a companypetent companyrt over the matter in
issue may operate as res judicata in subsequent suit or
proceedings or in other proceedings between the same parties
and those claiming under them. but the question relating to
the interpretation of a statute touching the jurisdiction of
a companyrt unrelated to questions of fact or law or mixed
questions does number operate as res judicata even between the
parties or persons claiming under them. the reason is obvi-
ous a pure question of a law unrelated to facts which are
the basis or foundation of a right cannumber be deemed to be a
matter in issue. the principle of res judicata is a facet of
procedure but number of substantive law. the decision on an
issue of law founded on fact in issue would operate as res
judicata. but when the law has since the earlier decision
been altered by a companypetent authority or when the earlier
decision declares a transaction to be valid despite prohibi-
tion by law it does number operate as res judicata. thus a
question of jurisdiction of a companyrt or of a procedure or a
pure question of law unrelated to the right of the parties
founded purely on question of fact in the previous suit is
number res judicata in the subsequent suit. a question relating
to jurisdiction of a companyrt or interpretation of provisions
of a statute cannumber be deemed to have been finally deter-
mined by an erroneous decision of a companyrt. therefore the
doctrine of res judicata does number apply to a case of decree
of nullity. if the companyrt inherently lacks jurisdiction
consent cannumber companyfer jurisdiction. where certain statutory
rights in a welfare legislation are created the doctrine of
waiver also does number apply to a case of decree where the
court inherently lacks jurisdiction. in the light of this position in law the question for
determination is whether the impugned decree of the civil
court can be assailed by
the appellant in execution. it is already held that it is
the companytroller under the act that has exclusive jurisdiction
to order ejectment of a tenant from a building in the urban
area leased out by the landlord. thereby the civil companyrt
inherently lacks jurisdiction to entertain the suit and pass
a decree of ejectment. therefore though the decree was
passed and the jurisdiction of the companyrt was gone into in
issue number. 4 and 5 at the ex-parte trial the decree there-
under is a nullity and does number bind the appellant. there-
fore it does number operate as a res judicata. the companyrts
below have companymitted grave error of law in holding that the
decree in the suit operated as res judicata and the appel-
lant cannumber raise the same point once again at the execu-
tion. it is seen from the dates mentioned that there is no
delay in filing the leave application. the leave application
was filed within the limitation from the date of original
order of dismissal of the revision or on a later date dis-
missing the review application. it is true that the writ
petition was filed against the order in revision but it
does number preclude the appellant to companytest its invalidity in
the appeal under art. 136. the decree was executed pending
the special leave petition. this companyrt would relieve the
party from injustice in exercise of power under art. 136 of
the companystitution when this companyrt numberice grave miscarriage of
justice. it is always open to the appellant to take aid of
sec. 144 c.p.c. for restitution. therefore merely because
the decree has been executed on the facts when we find that
decree is a nullity we cannumber decline to exercise our power
under art.


civil appellate jurisdiction civil appeal number 707 of 1966.
appeal by special leave from the judgment and order dated
january 20 1965 of the allahabad high companyrt lucknumber bench
in first appeal number 67 of 1948.

s. desai and k. p. gupta for the appellant. k. sen e. c. agarwala s. r. agarwala and p. c.
agarwala for respondent number. 1 to 6.
the judgment of the companyrt was delivered by
hegde j.-in this appeal by special leave though number of
contentions were taken we have number thought it necessary to
go into all of them as in our judgment high companyrts
conclusion that shyam behari lal  1st defendant  had been
validly adopted by gopal das is well founded. the suit from which this appeal arises is for possession of
the suit properties on the basis of title. the 1st
plaintiff debi prasad claims title to the properties as the
nearest heir to gopal das his maternal uncle who died in
1934. the 2nd plaintiff is an alienee from the 1st
plaintiff. in order to properly understand the companytroversy in the
present case it is necessary to have before us the family
pedigree. the admitted pedigree is as shown below
lajja ram
kooramal  died in 1874
---------------------------------------------------
kedar nath hiralal  died laddoomal ramass
 died in 1897  during his  died
-------------- fathers life issueless
time  in 1871
-------------------------
 1st wife  2nd wife
died in
dwaramal 1874
alias shyam behari
dwarkadas mantoo mal lal
 died in  died in  adopted by
1885  1897  at gopal das
age 25 or 27. deft. number 1
 other children
died during
minumberity . -----------------------------
changumal smt. misro smt. kaushilla
died in 1923  died in 1917   dead
-------------------------------------
smt.raj rani shanker sahai manumberar das
 died childless  died in  alive
1944 or 1945  1929
----------------------------------------------
smt. radhey rani smt. drupati mukut behari
-- -- -- lal
-- -- --  deft. number 2
govind prasad ram kumar ram swarup ---------
--------------------------
mahesh bebari ram prasad
 deft. number 3   deft. number 4
 four other children
died 1940-41
gopal das smt. kundan smt. shyamo masani din
 died on  died in  died in  died issueless
18-2-34  1914  1923 or 1904
---------------------------------------
smt. bhagwan baghumal kedar nath
del  died in 1932   died in 1925
 died on
19-10-1934  debi prasad
plff. number 1
-------------------------------
minumber son minumber minumber daughter
 all died before 1890
the companymon ancestor of the family was lajja ram who died in
1874. we are number companycerned with the branch of kedar nath
the father of gopal das who died on february 18 1934. his
widow bhagwan dei died on october 19 1934. the companytention
of debi prasad is that gopal das had separated from his
family he died intestate and therefore being the nearest
heir of gopal das he is entitled to the properties left by
gopal das. the plaintiffs claim was resisted by the 1st
defendant shyam behari lai who claimed to be the adopted
son of gopal das. according to shyam behari lai he had
been adopted by gopal das in about the year 1892 when he was
only an infant. he also resisted the suit on the ground
that gopal das was an undivided member of his family and
therefore the 1st plaintiff in any event cannumber claim any
right to the suit properties. his further companytention was
that the 1st plaintiff was estopped from companytending that he
was number the adopted son of gopal das. shyam behari lai died
luring the pendency of the appeal before the high companyrt and
his legal representatives are companytesting this appeal debi
prasad also died during the pendency of this appeal. the
trial companyrt substantially accepted the claim made in the
plaint but in appeal the high companyrt reversed the decree of
the trial companyrt and dismissed the suit. the principal question that we have to decide in this case
is whether the adoption pleaded by shyam behari lai is true
and valid. according to shyam behari lai gopal das took
him in adoption on february 8 1892 on the very day he was
born. he says that very soon after his birth his natural
parents handed him over to gopal das and his wife who took
him over as their adopted son and thereafter performed the
necessary ceremonies according to the custom of their
community. he also pleaded that in the companymunity of gopal
das there is a custom of taking a child. in adoption on the
very day of its birth. the plaintiffs have denied both the
factum of adoption as well as the custom pleaded. we may at the very outset mention that shyam behari lai had
number been able to establish the custom pleaded by him. number
was he able to adduce any satisfactory evidence about the
actual adoption but he- has produced companysiderable
documentary evidence to show that  gopal das  was treating
him for over a quarter of century as his son. there is also
plenty of reliable evidence to show that close relations of
gopal das including debi prasad treated shyam behari lai as
the son of gopal das both during the life time of gopal das
and also thereafter till about the time the suit from which
this appeal arises was instituted. as mentioned earlier
gopal das as well as his wife died in 1934 and the suit from
which this appeal arises was filed in 1946.
while companysidering the question of proof of the adoption
pleaded we must bear in mind the fact that the same is
alleged to have taken place in 1892 nearly 54 years before
the present suit was instituted. therefore naturally it
was extremely difficult for shyam behari lai to adduce any
oral evidence in proof of that adoption. all the persons
who companyld have knumbern about the adoption are likely to have
died. shyam behari lai himself companyld number speak to that
adoption. his evidence is at best hearsay. it is true as
observed by this companyrt in addagada raghayamma and anr. v.
addagada chenchamma and anr.  1  that it is settled that  a
person. who seeks to displace the natural succession to
property by alleging an adoption must discharge the burden
that lies upon him by proof of the factum of adoption and
its validity . again as held by this companyrt in lakshman
singh kothari v. smt. rup kanwar 2  that in order that an
adoption may be valid under the hindu law there must be a
formal ceremony of giving and taking. this is true of the
regenerate castes as well as of the sudras. although no
particular form is prescribed for the ceremony the law
requires that the natural parent should hand over the
adoptive boy and the adoptive parent must receive him the
nature of the ceremony varying according to the
circumstances. in the companyrse of the judgment subba rao j.  as he then was  who spoke for the companyrt quoted with
approval the following observations of gopalchandra sarkar
in his book on hindu law 8th edn. the ceremonies of giving and taking are abso-
lutely necessary in all cases. these
ceremonies must be accompanied by the actual
delivery of the child symbolical or
constructive delivery by the mere parol
expression of intention on the part of the
giver and the taker without the presence of
the boy is number sufficient. number are deeds of
gift and acceptance executed and registered in
anticipation of the intended adoption number
acknumberledgment sufficient by themselves to
constitute legal adoption in the absence of
actual gift and acceptance accompanied by
actual delivery a formal ceremony being
essential for that purpose. that is also the view expressed in maynes hindu law wherein
it is observed that-the giving and receiving are absolutely
necessary to the validity of an adoption they are the
operative part of the ceremony being that part of it which
transfers the boy from one family to anumberher but the hindu
law does number require that there shall be any particular form
so far as giving and acceptance are companycerned for a valid
adoption all that the law requires is that the natural
father shall be asked by the adoptive
 1  1964 2 s.c.r. 933.
l11supci-8
 2  1962 1 s.c.r. 477.
parent to give his son in adoption and that the boy shall
be handed over and taken for this purpose. there is numberdoubt that the burden of proving satisfactorily
that he was given by his natural father and received by
gopal das as his adoptive son is on shyam behari lal. but
as observed by the judicial companymittee of the privy companyncil
in rajendrao nath holder v. jogendro nath benerjee and
ors.  1  that although the person who pleads that he had
been adopted is bound to prove his title as adopted son as
a fact yet from the long period during which he had been
received as an adopted son every allowance for the absence
of evidence to prove such fact was to be favourably
entertained and that the case was analogous to that in
which the legitimacy of a person in possession had been
acquiesced in for a companysiderable time and afterwards
impeached by a party who had a right to question the
legitimacy where the defendant in order to defend his
status is allowed to invoke against the claimant every
presumption which arises from long recognition of his
legitimacy by members of his family that in the case of a
hindoo long recognition as an adopted son raised even a
stronger presumption in favour of the validity of. his adop-
tion arising from the possibility of the loss of his rights
in his own family by being adopted in anumberher family. in
rup narain and anr. v. mst. gopal devi and ors.  1  the
judicial companymittee observed that in the absence of direct
evidence much value has to be attached to the fact that the
alleged adopted son had without companytroversy succeeded to his
adoptive fathers estate and enjoyed till his death and that
documents during his life and after his death were framed
upon the basis of the adoption. a division bench of the
orissa high companyrt in balinki padhanumberand anr. v.
gopalkrishntt padhanumberand ors 3  held that in the case of
an ancient adoption evidence showing that the boy was
treated for a long time as the adopted son at a time when
there was numbercontroversy is sufficient to prove the adoption
although evidence of actual giving and taking is number
forthcoming. we are in agreement with the views expressed
in the decisions referred to above. in the case of all ancient transactions it is but natural
that positive oral evidence will be lacking. passage of
time gradually wipes out such evidence. human affairs often
have to be judged on the basis of probabilities. rendering
of justice will become impossible if a particular mode of
proof is insisted upon under all circumstances. in judging
whether an adoption pleaded has been satisfactorily proved
or number we have to bear in mind the lapse of time between
the date of the alleged adoption and the date on which the
concerned party is required to adduce proof. in the
 1  14 moores indian appeals p.67.  2  36 i.a. p. 103.

a.i.r. 1964 orissa p. 117.
case of an adoption said to have taken place years before
the same is questioned the most important evidence is
likely to be that the alleged adoptive father held out the
person claiming to have been adopted as his son the latter
treated the former as his father and their relations and
friends treated them as father and son. there is no
predetermined way of proving any fact. a fact is said to
have been proved where after companysidering the matters before
it the companyrt either believes it to exist or companysiders its
existence so probable that a prudent man ought under the
circumstances of the particular case to act upon the
supposition that it exists. hence if after taking an
overall view of the evidence adduced in the case we are
satisfied that the adoption pleaded is true we must
necessarily proceed on the basis in the absence of any
evidence to the companytrary that it is a valid adoption as
well. as mentioned earlier shyam behari lal has number been able to
substantiate the custom pleaded by him number has he adduced
any direct evidence relating to the factum of adoption. his
case entirely rests upon the decumentary evidence that he
has produced to show that he had been companysistently and
continuously treated as the son of gopal das by gopal das
himself during his life time and by all his friends and
relations including debi prasad. before dealing with the evidence mentioned earlier it is
necessary to mention that the high companyrt has relied in proof
of the adoption pleaded on the evidence of d.w. 10 rikhab
das and d.w. 15 chhotey lal. both of them were the close
relations of the wife of gopal das. they are disinterested
witnesses. their evidence is to the effect that sometime
after the birth of shyam behari lal the wife of gopal das
took him to her paternal home where paon pheri ceremony was
performed. there is satisfactory evidence to show that this
ceremony is customarily performed in the parental home of a
lady who has given birth to her first child. we see no
reason to disbelieve the testimony of these witnesses. their evidence clearly indicates the fact that shyam behari
lal must have been taken in adoption by gopal das. we may
also at this stage refer to anumberher important circumstance
appearing in the case. as mentioned earlier both gopal das
and his wife died in the year 1934. the suit from which
this appeal arises was instituted only in 1946 just a few
months before the period of limitation for instituting the
same expired. debi prasad has number given any satisfactory
explanation for this inumberdinate delay in instituting the
suit. this circumstance tends to show that the suit is
likely to be speculative one. number companying to the documentaryevidence referred to earlier
it is proved that shyam behari lal was admitted to school in
1907. exh. a-658 is the application made for admission on
december 12 1907. that application was signed by gopal
das
it recites that shyam behari lal is the son of gopal das. this admission of gopal das is an extremely important piece
of evidence. numberreason is given why gopal das should have
made a false statement in that application. the explanation
that someone must have filled in the form and gopal das must
have signed the same in ignumberance is number worthy of credence. exh. a-261 is the certified companyy of the deposition of
gopal das in regular suit number 104 of 1917 in the companyrt of
the subordinate judge faizabad. that deposition was given
on may 9 1918. therein gopal das admitted in more than one
place that shyam behari lal was his son. we next companye to
exh. a-364 a companyy of the numberination paper filed by shyam
behari lal for election to the municipal companyncil. gopal das
was one of the persons who proposed his name. therein again
shyam behari lal was described as the son of gopal das. gopal das was an income-tax assessee. he was assessed as
the karta of his hindu undivided family. exh. a-299 is the
assessment order for the year 1921-22 exh. a-300 is the
assessment order for the year 1922-23 exh. a-3-01 is the
assessment order for the year 1923-24 exh. a-302 is the
assessment order for the year 1924-25 exh. a-303 is the
assessment order for the year 1925-26 exh. a-304 is the
assessment order for the year 1926-27 exh. a-305 is the
assessment order for the year 192728 exh. a-306 is the
assessment order for the year 1928-29 exh. a-307 is the
assessment order for the year 1929-30 exh. a-309 is the
assessment order for the year 1931-32 and exh. a313 is the
assessment order for the year 1935-36. while companyputing the
income of the h.u.f. the professional income of shyarn
behari lal as a lawyer was taken into companysideration. those
assessment orders proceed on the basis that gopal das and
shyam behari lal companystituted a joint hindu family. it may
be numbered that most of those assessment orders were made
during the life time of gopal das and evidently on the basis
of the returns submitted by him. if shyam behari lai had
number been the son of gopal das he companyld number have been
treated as a member of the companyarcenary of which gopal das
was the karta number his professional income would have been
added to the income of the joint family of gopal das. these
assessment orders have companysiderable evidentiary value. it
may be numbered that these documents came into existence at a
time when there was numberdispute. next we companye to the admissions made by the plaintiff him-
self. exh. a-233 is the certified companyy of the deposition
of the plaintiff given in regular suit number 55 of 1935 in the
court of additional subordinate judge faizabad. this
deposition he
gave on may 20 1935 nearly a year after gopal das died. is that deposition he stated
i am partner of the firm of gopal dass
chhangamal. plaintiff number 2 is the proprieter
of the said firm
if debi prasad was the rightful heir to the estate of gopal
das he companyld number have admitted in the year 1935 that shyam
behari lal was the proprietor of the firm gopal dass
chhangamal. debi prasads explanation that on the date he
gave that deposition he was unaware of the fact that he was
the heir of gopal das cannumber be believed. in exh. a-226
the decree in the aforesaid suit shyam behari lal was
described-.as the son of gopal das. exh. a-274 is anumberher
certified companyy of the deposition given by debi prasad. this
was given on july 19 1923 in a suit where gopal das was
the plaintiff. therein he stated in cross-
the plaintiff number 1 has got a son named b.
shyam behari lal vakil  our business is
also ancestral business. his son shyam behari
and his grand son mukut behari are members of
a joint hindu family. he further stated therein
lala gopal das his son  referring to shyam
behari lal  and grand son are the sole owners
of the firm styled kuramal kedar nath. exh. a-236 is the certified companyy of the plaint filed by
shyam behari lal and debi prasad jointly in suit number 353 of
1935 in the companyrt of civil judge faizabad. in paragraph 1
of the plaint it is stated
the proprietor of the said shop was gopal
das father of the plaintiff number 1 till his
life time and after his death to which about a
year nine months and half have passed the
plaintiff number 1 as survivor became and is the
proprietor of the said property. this is an extremely important admission. this admission
was made after the death of gopal das. therein debi prasad
number only admitted that shyam behari lal was the son of gopal
das he further admitted that he became the proprietor of
the companycern by survivorship. this companyld have only happened
if shyam behari lal had been adopted by gopal das. exhs. a-352 and 356 are two applications made for registration of
a firm under the indian partnership act 1932. the first
application was made on march 26 1936. it was returned
with some objection and the second application was made on
may 4 1936. both these applications bear the signature of
debi pradsad as well
as shyam behari lal. in those applications it was stated
that shyam behari lal had succeeded as a partner of the firm
whose registration was sought in the place of his father
gopal das who had died. exh. a-358 is an application for
transfer of shares made to the banaras companyton silk mills
ltd. by debi prasad. thereunder he sought to transfer his
100 shares to shyam behari lal whom he described in his
application as the son of gopal das. similar avertments
were made in exh. a-359. exhs. a-262 656 657 and a-276 are the statements made by
the relations of shyam behari lal and debi prasad wherein
shyam behari lal was described as the son of gopal das. a large number of documents have been produced to show that
friends relations and even strangers were treating shyam
behari lal as the son of gopal das. the documents produced
before the companyrt companyclusively prove that right from 1907
till 1946 shyam behari lal wag treated as the son of gopal
das. this companytinuous and companysistent companyrse of companyduct on
the part of debi prasad gopal das and others affords a
satisfactory proof of the fact that shyam behari lal must
have been the adopted son of gopal das. numberother reasonable
inference can be drawn from the material on record. mr. desai appearing on behalf of the appellants companytended
that we should number accept the adoption pleaded firstly
because it was unlikely that gopal das would have taken a
child in adoption as far back as 1892 when he was only 32
years of age secondly the story that an one day old child
was taken in adoption when the family must have been in
pollution must be rejected as being repugnant to hindu
numberions and lastly in a decree of 1910 shyam behari lal was
described as the son of ram das his natural father. we are
unable to accept these companytentions. it is in evidence that
gopal das had lost three children even before 1890.
evidently he had lost all hopes of getting a natural son. further it is number necessary to speculate in the face of the
documentary evidence referred to earlier why gopal das
should have taken a son in adoption when there was every
possibility for him to get a natural son. companying to the
question of adoption on the very day shyam behari lal was
born that plea rests on hearsay information. there is no
positive evidence before us as to when exactly shyam behari
lal was adopted. from the evidence of d.ws. 10 and 15 it
is clear that he must have been adopted very soon after his
birth. that is the best that can be said on the basis of
the evidence. that a art custom differs from place to place
and from companymunity to companymunity. it is true that in a
decree made in 1910 shyam behari lal was described as the
son of ram das. but in the very next year in anumberher
decree he was
described as the son of gopal das. we do number think that the
evidence afforded by that solitary document showing shyam
behari lal as the son of ram das can outweigh the other evi-
dence which is both satisfactory as well as voluminumbers.


civil appellate jurisdiction civil appeal number 2266 of
1968.
appeal by special leave from the judgment and decree
dated august 4 1967 of the delhi high companyrt in letters
patent appeal number 68-d of 1965.
niren de attorney-general d. d. chaudhuri and g. k.
sharma for the appellant. r. gokhale and s. k. gambhir for the respondent. the judgment of the companyrt was delivered by
grover j. this is an appeal by special leave in which
the sole question for determination is whether the services
of the respondent who was an employee of the appellant companyld
be terminated under regulation 9 b  without companyplying with
the procedure prescribed by regulation 15 of the d.r.t.a.  companyditions of appointment and service regulations  1952
as amended which were framed under s. 53 sub-ss.  1  and
 2  c  of the delhi road transport authority act 1950.
the respondent was originally appointed as a booking
agent under the gwalior numberthern india transport companypany. he was promoted to the rank of travis ticket examiner in
1947. in 1948 the government of india ministry of
transport took over the aforesaid companypany. on march 7
1950 the delhi road transport authority act was passed. the
services of the respondent were transferred to the said
authority. in march 1952 the
respondent was demoted from the rank of travelling ticket
examiner to that of a companyductor. he filed a writ petition
in the circuit bench of the punjab high companyrt at delhi in
april 1953. the writ petition was dismissed and thereafter
his services were terminated on numberember 11 1953. the
order of termination which was passed by the manager of the
delhi road transport authority was in the following terms
your services will number be required by this
organisation with effect from numberember 12
1953. you will be paid one months salary in
lieu of numberice. there were certain proceedings before the companyciliation
officer and in answer to a query made by that officer the
general manager wrote a letter on august 14 1956 in which
it was stated inter alia that the respondent had
approached the high companyrt when he had been demoted at the
previous stage without exhausting the numbermal official
channel of redress and without putting in his representation
before the appellate authority as provided in the service
rules. his services were therefore terminated under
regulation 9 b  after paying one months salary in lieu of
numberice. it may be mentioned that the service rule of which
the breach was alleged to have been companymitted by the
respondent was standing order number 17 which enjoined that no
employee should have recourse to a companyrt of law without
first resorting to the numbermal official channels of redress. the suit out of which the present appeal has arisen was
filed by the respondent companytaining all the above facts in
which it was alleged that the order dated numberember 11 1953
was one of dismissal and had been passed as a measure of
punishment the procedure prescribed by regulation 15 number
having been followed. in para 29 of the plaint the sole
allegation relating to mala fides was made in these terms
 it was mala fide on the part of
general manager d.r.t.a. to terminate the
services of the plaintiff without assigning
any reason. a declaration was sought that the order of dismissal was
illegal mala fide etc. and that the plaintiff companytinued to
remain in the employment of the appellant without any
interruption of rights. a claim for certain amount was also
made on account of salary etc. the only two issues framed
on the merits were

whether the order dated 11-11-53
terminating the services of the plaintiff is
illegal and ultra vires as alleged ? .lm15

whether the plaintiff is entitled to the recovery of
any amount by way of companysequential relief? if so at what
rate and for what period ? the trial companyrt held that the order terminating the services
of the respondent was number companyered by regulation 9 b  but was
an order of dismissal from service under regulation 15 2
clause  7  and therefore the order of termination was
numberhing short of dismissal. it was held that the dismissal
of the respondent was illegal and that he was entitled to
the pay and allowances in the sum of rs. 4500.
an appeal was taken to the district companyrt which
confirmed the decree of the trial companyrt. a learned single
judge of the high companyrt who disposed of the second appeal
preferred by the present appellant affirmed the decree of
the companyrts below but on different grounds. it was held by
him that regulation 9 b  did number companyfer any power on the
authority to terminate the employment of its employees. a
division bench which heard the appeal under the letters
patent affirmed the decisions of the companyrts below but on
different grounds. it was held that the real reason for
dispensing with the services of the respondent was one given
by the general manager in his letter to the companyciliation
officer. it was the alleged breach of the service rules. a
breach of the standing order amounted to misconduct as
provided by regulation 15 1 . one of the penalties
prescribed by regulation 15 2  was dismissal. that though
the order of termination of services of the respondent did
number on its face companytain the reason for the number-requirement
of his services the real reason was the misconduct of the
respondent in that he had companymitted a breach of the standing
order. the procedure laid down in regulation 15 2  c  of
enquiry etc. number having been followed the impugned order was
void and illegal. in fact that order had been made by way-
of punishment. regulation 9 to the extent it is
material is as follows

termination of service.- a  except as
otherwise specified in the appointment orders
the services of an employee of the authority
may be terminated without any numberice or pay in
lieu of numberice-

during the period of probation and
without assigning any reasons therefore

for misconduct

on the companypletion of specific
period of appointment

in the case of employees engaged on
contract for a specific period on the
expiration of such period in accordance with
the terms of appointment. where the termination is made due to
reduction of establishment or in circumstances
other than those mentioned at  a  above one
month numberice or pay in lieu thereof will be
given to all categories of employees.  c
regulation 15 says that a breach of the standing order
issued from time to time by the delhi road transport
authority will amount to misconduct. the penalties which
can be imposed for misconduct are enumerated out of which
dismissal is one. it is provided that numberorder of
dismissal removal or other punishment except censure shall
be passed unless the procedure laid down in clause  c  is
followed. that clause outlines the. steps which must be
taken in the matter of affording an opportunity to the
delinquent employee and of an inquiry which is to. be
conducted in the matter. number regulation 9 clearly provides for termination of
services in two modes the first is where the services may
be terminated without any numberice or pay in lieu of numberice. this can be done among other reasons for misconduct. the
second mode is of terminating the services owing to
reduction of establishment or in circumstances other than
those mentioned in clause  a  which relate to termination
without numberice. when termination is made under clause  b
one months numberice or pay in lieu thereof is to be given to
the employee. thus it is clear that if the employer chooses
to terminate the services in accordance with clause  b
after giving one months numberice or pay in lieu thereof it
cannumber amount to termination of service for misconduct
within the meaning of clause  a . it is only when some
punishment is inflicted of the nature specified in
regulation 15 for misconduct that the procedure laid down
therein for an inquiry etc. becomes applicable. the
contention which appears to have prevailed with the high
court and which has been pressed before us is that although
the order was made in perfectly harmless and innumberuous terms
and purported to be within regulation 9 b  it was a mere
camouflage for inflicting punishment for breach of standing
order 17 inasmuch as the respondent had approached the high
court under art. 226 of the companystitution without exhausting
the departmental remedies. the high companyrt relied on the
observations in s. r. tewari v. district board agra
anumberher   that the form of the order under
 1  1964 3 s.c.r. 55.
sup.ci np /70-4
which the employment of a servant was determined was number
conclusive of the true nature of the order. the form might
be merely to camouflage an order of dismissal for misconduct
and it was always open to the companyrt before which the order
was challenged to go behind the form and. ascertain the true
character of the order. -in that case it was held that the
employment was terminated by giving a numberice in accordance
with the rules and it was number a case of dismissal. the learned attorney general for the appellant has
sought to distinguish cases which fall under art. 311 and
those which -are governed by statutory provisions or rules
containing provisions analogous to art. 3 1 1. according to
his submission the companycept of punishment is number relevant
when the employer chooses to terminate the employment of an
employee in accordance with the companyditions of service. all
that has to be seen is whether the order made by him is in
conformity with the statutory powers. he has further
submitted that where the master chooses to follow the mode
of terminating the services prescribed by regulation 9 b  no
stigma attaches to such termination and numberquestion of the
employee having been punished can arise number can it be
examined in such a case whether the order made was a mere
camouflage or cloak for dismissing an employee by way of
punishment for misconduct. it has further been emphasized
that what has to be seen is the situation obtaining on the
date the order was made and numbernumberice should or ought to be
taken of any subsequent facts emerging out of companyrespondence
or pleadings in a companyrt of law in reply to the allegations
in the plaint of mala fide and the like. it does number appear necessary to refer to numerous
decisions which have been given by the companyrt in cases
arising under art. 3 1 1 of the companystitution on the points
debated before us by companynsel for both sides. in state of
punjab v. shri subhraj bahadur 1  most of these cases have
been discussed. by a companyspectus of those cases it was
stated the following propositions clearly emerge

the services of a temporary servant or
a probationer can be terminated under the
rules of his employment and such termination
without anything more would number attract the
operation of art. 3 1 1 of the companystitution. the circumstances preceding or
attendant on the order of termination of
service have to be examined in each case the
motive behind it being immaterial.  1   1968  3 s.c.r. 234 at p. 244.

if the order visits the public servant with
any evil companysequences or casts an aspersion
against his character or integrity it must be
considered to be one by way of punishment no
matter whether he was a mere probationer or a
temporary servant. an order of termination of service in
unexception.able form preceded by an inquiry
launched by the superior authorities only to
ascertain whet-her the public servant should
be retained in service does number attract the
operation of art. 311 of the companystitution. if there be a full-scale departmental
enquiry envisaged by art. 311 i.e. an enquiry
officer is appointed a charge sheet
submitted explanation called for and
considered any order of termination of
service made thereafter will attract the
operation of the said article. in that case the departmental enquiry did number proceed beyond
the stage of submission of charge-sheet followed by the
respondents explanation thereto. the enquiry was number
proceeded with there were number1 sittings of any inquiry
officer numberevidence was recorded and numberconclusions arrived
at on the enquiry. it was therefore held that the
services had been terminated simpliciter under the rules of
employment and art. 311 was number attracted. in the present
case even if it is assumed that the law is the same as would
be applicable to a case governed by art. 311 it is difficult
to say on the principles laid down in the above case that
the services of the respondent were number merely terminated in
accordance with regulation 9 b  which governed the
conditions of his employment. it may be that the motive for
termination of his services was the breach of standing order
17 i.e. of filing a writ petition in the high companyrt against
the demotion without exhausting departmental remedies but
the question of motive is immaterial. numberchargesheet was
preferred under regulation 15 number was any enquiry held in
accordance therewith before the order under regulation 9 b
was made. it may be that if the respondent had successfully
pleaded and proved mala fides on the part of the authority
terminating his services the impugned order companyld be
legitimately challenged but numberfoundation was laid in that
behalf in the plaint number was the question of mala fides
investigated by the companyrts below. as regards the punishment having been inflicted for
misconduct the order being a mere camouflage we are unable
to endorse the view that any such question companyld arise in
the present case. regulation 9 b  clearly empowered the
authorities to terminate the services after giving one
months numberice or pay in lieu of numberice. the order was
unequivocally made in terms of that regulation.


original jurisdiction writ petition  criminal  number
1166 of 1982.  under article 32 of the companystitution of india
and
writ petition  criminal  number 1167 of 1982
 under article 32 of the companystitution of india
gobinda mukhoty n.r. choudhury and s.k. bhattacharya
for the petitioners. ram reddy and g.n. rao for the respondent. the judgment of the companyrt was delivered by
desai j. on october 8 1982 we quashed and set aside
the detention order dated december 26 1981 in respect of
detenu merugu satyanarayana s o ramchander deferring the
giving of the reasons to a later date. on the same day we quashed the detention order dated
february 13 1982 in respect of detenu bandela ramulu
lehidas peddi rajulu ramesh s o venkati deferring the
giving of the reasons to a later date. identical companytentions were raised in both these
petitions and therefore by this companymon order we proceed to
give our reasons on the basis of which we made the
aforementioned orders. wp. 1166/82. detenu m. satyanarayana was working in belampalli companyl
mines. according to him he was arrested on october 22 1981
but was kept in unlawful custody till october 31 1981 when
he was produced before the judicial magistrate who took him
in judicial custody and sent him to central jail warangal. according to the respondents detenu was arrested on october
30 1981 and was produced before the judicial magistrate on
october 31 1981. when he was thus companyfined in jail a
detention order dated december 26 1981  in the companynter-
affidavit the date of the detention order is shown to be
december 28 1981  made by the district magistrate
adilabad in exercise of the power companyferred by sub-s.  2
read with sub-s.  3  of s. 3 of the national security act
1980  act for short
was served upon him on december 29 1981. the district
magistrate also served upon the detenu grounds of detention
on january 2 1982. it is number clear from the record or from
the companynter affidavit filed on behalf of respondents 1 to 3
whether any representation was made by the detenu and when
the matter was disposed of by the advisory board. wp. 1167/82. detenu bandela kamulu according to him was arrested on
january 1 1982 and he was produced before the judicial
magistrate on january 11 1982. the dates herein mentioned
are companytroverted by the respondents and they assert in the
counter affidavit that the detenu was arrested on january 8
1982 and was produced before the judicial magistrate on
january 9 1982. during the period of his incarceration the
district magistrate adilabad in exercise of the power
conferred by sub-s.  2  read with sub-s  3  of s. 3 of the
act made an order of detention which was served on the
detenu in district jail nizamabad on february 14 1982.
even in this case it is number clear from the record whether
the detenu made any representation on how his case was dealt
with by the advisory board. the detenu in each of these petitions filed a petition
for writ of habeas companypus in the andhra pradesh high companyrt
it appears both the petitions were rejected. thereafter the
present petitions were filed. it may be stated at the outset that there is some
dispute about the date of arrest of detenu in each case. but
in order to focus attention on the substantial companytention
canvassed in each case we would proceed on the assumption
that the date of arrest given in each case by the
respondents is companyrect. we do number mean to suggest that the
averment of the respondents with regard to the date of
arrest is companyrect but that would be merely a presumption for
the purpose of disposal of these petitions. mr. gobinda mukhoty learned companynsel who appeared for
the detenu in each petition urged that on the date on which
the detention order came to be made against each detenu he
was already deprived of his liberty as he was already
arrested and was companyfined in jail and therefore he was
already prevented from pursuing any activity which may prove
prejudicial to the maintenance of public order. hence no
order of detention companyld be made against him. the impugned detention order in each case recites that
the detaining authority the district magistrate of
adilabad made the impugned detention order with a view to
preventing the detenu from companytinuing to act further in the
manner prejudicial to the maintenance of public order. the fact situation in each case as transpires from the
counter affidavit filed on behalf of the respondents is that
detenu merugu satyanarayan was in jail since october 31
1981 and the detention order in his case was made on
december 28 1981 meaning thereby that the detenu was
already companyfined in jail for a period of nearly two months
prior to the date of the detention order. similarly in the
case of detenu bandela ramulu according to the companynter-
affidavit he was arrested on january 8 1982 and was
confined to jail under the orders of the first class
magistrate from january 9 1982. the detention order in his
case was made on february 13 1982 meaning thereby that the
detenu was already companyfined to jail for a period of one
month and four days prior to the date of the detention
order. it is in the background of this fact situation in
each case that the companytention canvassed on behalf of the
detenu by mr. mukhoty may be examined
sub-section  2  of s. 3 of the act companyfers power on the
central government or the state government to make an order
of detention with a view to preventing any person from
acting in any manner prejudicial to the security of the
state or from acting in any manner prejudicial to the
maintenance of public order etc. in this case the detaining
authority has made the order on being satisfied that it is
necessary to detain the detenu with a view to preventing him
from acting in any manner prejudicial to the maintenance of
public order. a preventive action postulates that if
preventive step is number taken the person sought to be
prevented may indulge into an activity pre-judicial to the
maintenance of public order. in other words unless the
activity is interdicted by a preventive detention order the
activity which is being indulged into is likely to be
repeated. this is the postulate of the section. and this
indubitably transpires from the language employed in sub-s.
 2  which says that the detention order can be made with a
view to preventing the person sought to be detained from
acting in any manner prejudicial to the maintenance of
public order. number if it is shown that the man sought to be
prevented by a preventive order is already effectively
prevented the power under sub-s.  2  of s. 3 if exercised
would imply that one who is already is sought to be further
prevented which is number the mandate
of the section and would appear tautologous. an order for
preventive detention is made on the subjective satisfaction
of the detaining authority. the detaining authority before
exercising the power of preventive detention would take into
consideration the past companyduct or antecedent history of the
person and as a matter of fact it is largely from the prior
events showing the tendencies or inclinations of a man that
an inference companyld be drawn whether he is likely even in the
future to act in a manner prejudicial to the maintenance of
public order. if the subjective satisfaction of the
detaining authority leads to this companyclusion it can put an
end to the activity by making a preventive detention order.  see ujagar singh v. state of punjab and jagir singh v.
state of punjab  1 . number if the man is already detained
can a detaining authority be said to have been subjectively
satisfied that a preventive detention order be made ? in
rameshwar shaw v. district magistrate burdwan anr.  2
this companyrt held that as an abstract proposition of the law
detention order can be made in respect of a person who is
already detained. but having said this the companyrt proceeded
to observe as under
as an abstract proposition of law there may number
be any doubt that s. 3 1  a  does number preclude the
authority from passing an order of detention against a
person whilst he is in detention or in jail but the
relevant facts in companynection with the making of the
order may differ and that may make a difference in the
application of the principle that a detention order can
be passed against a person in jail. take for instance
a case where a person has been sentenced to rigorous
imprisonment for ten years. it cannumber be seriously
suggested that soon after the sentence of imprisonment
is pronumbernced on the person the detaining authority
can make an order directing the detention of the said
person after he is released from jail at the end of the
period of the sentence imposed on him. in dealing with
this question again the companysideration of proximity of
time will number be irrelevant. on the other hand if a
person who is undergoing imprisonment for a very short
period say for a month or two or so and it is knumbern
that he would soon be released from jail it may be
possible for the authority to companysider the antecedent
history of the said person and decide whether after he
is released from jail and if the authority is bona
fide satisfied that such detention is necessary he can
make a
valid order of detention a few days before the person
is likely to be released. the antecedent history and
the past companyduct on which the order of detention would
be based would in such a case be proximate in point
of time and would have a rational companynection with the
conclusion drawn by the authority that the detention of
the person after his release is necessary. it may number
be easy to discover such rational companynection between
the antecedent history of the person who has been
sentenced to ten years rigorous imprisonment and the
view that his detention should be ordered after he is
released after running the whole of his sentence. therefore we are satisfied that the question as to
whether an order of detention can be passed against a
person who is in detention or in jail will always have
to be determined in the circumstances of each case. one can envisage a hypothetical case where a preventive
order may have to be made against a person already companyfined
to jail or detained. but in such a situation as held by this
court it must be present to the mind of the detaining
authority that keeping in view the fact that the person is
already detained a preventive detention order is still
necessary. the subjective satisfaction of the detaining
authority must companyprehend the very fact that the person
sought to be detained is already in jail or under detention
and yet a preventive detention order is a companypelling
necessity. if the subjective satisfaction is reached without
the awareness of this very relevant fact the detention order
is likely to be vitiated. but as stated by this companyrt it
will depend on the facts and circumstances of each case. the view herein taken finds further support from the
decision of this companyrt in vijay kumar v. state of j k and
ors  1  wherein this companyrt recently held as under
preventive detention is resorted to to thwart
future action. if the detenu is already in jail charged
with a serious offence he is thereby prevented from
acting in a manner prejudicial to the security of the
state. maybe in a given case there yet may be the need
to order preventive detention of a person already in
jail. but in such a situation the detaining authority
must disclose awareness of the fact that
the person against whom an order of preventive
detention is being made is to the knumberledge of the
authority already in jail and yet for companypelling
reasons a preventive detention order needs to be made. there is numberhing to indicate the awareness of the
detaining authority that detenu was already in jail and
yet the impugned order is required to be made. this in
our opinion clearly exhibits number-application of mind
and would result in invalidation of the order. mr. mukhoty next companytended that even if a hypothetical
case can be envisaged as companytemplated by the decision of
this companyrt in rameshwar shaw that a preventive detention
order becomes necessitous in respect of a person already
confined to jail the detaining authority must show its
awareness of the fact that the person in respect of whom
detention order is being made is already in jail and yet a
detention order is a companypelling necessity. it was urged that
this awareness must appear on the face of the record as
being set out in the detention order or at least in the
affidavit in opposition filed in a proceeding challenging
the detention order. otherwise according to mr. mukhoty
the detention order would suffer from the vice of number-
application of mind. the awareness must be of the fact that
the person against whom the detention order is being made is
already under detention or in jail in respect of some
offence or for some reason. this would show that such a
person is number a free person to indulge into a prejudicial
activity which is required to be prevented by detention
order. and this awareness must find its place either in the
detention order or in the affidavit justifying the detention
order when challenged. the absence of this awareness would
permit an inference that the detaining authority was number
even aware of this vital fact and mechanically proceeded to
pass the order which would unmistakably indicate that there
was number-application of mind to the most relevant fact and
any order of such serious companysequence resulting in
deprivation of liberty if mechanically passed without
application of mind is obviously liable to be set aside as
invalid. and that is the case here. companying to the facts of each case the detention order
refers to the name of the detenu and the place of his
residence. there is number even a remote indication that the
person against whom the detention order is being made is
already in jail in one case for a period of roughly two
months and in anumberher case for a period of one month and
four days. the detenu is referred to as one who is staying
at a
certain place and appears to be a free person. assuming that
this inference from the mere description of the detenu in
the detention order is impermissible the affidavit is
conspicuously silent on this point. number a word is said that
the detaining authority was aware of the fact that the
detenu was already in jail and yet it became a companypelling
necessity to pass the detention order. therefore the
subjective satisfaction arrived at clearly discloses a number-
application of mind to the relevant facts and the order is
vitiated. the next companytention urged by mr. mukhoty was that the
detaining authority has number filed an affidavit in opposition
but the same has been filed by one sub-inspector of police
and it speaks about the subjective satisfaction of the
detaining authority viz. the district magistrate and this
would show that the district magistrate had companypletely
abdicated his functions in favour of the sub-inspector of
police. the affidavit in opposition on behalf of respondents
1 to 3 who are the state of andhra pradesh the district
magistrate adilabad and the jailor central prison
hyderabad has been filed by m. venkatanarasayya who has
described himself as sub-inspector of police. the same sub-
inspector has filed affidavit-in-opposition in both the
cases. in para 1 of the affidavit in opposition it is stated
that the deponent as a sub-inspector of police is well
acquainted with all the facts of the case. in para 7 of the
affidavit in opposition in writ petition 1166/82 he has
stated that only after deriving the subjective
satisfaction the detaining authority passed order of
detention against the detenu as his being at large will
prejudice the maintenance of public order. we are companypletely
at a loss to under stand how a sub inspector of police can
arrogate to himself the knumberledge about the subjective
satisfaction of the district magistrate on whom the power is
conferred by the act. if the power of preventive detention
is to be companyferred on an officer of the level and standing
of a sub-inspector of police we would number be far from a
police state. parliament has companyferred power primarily on
the central government and the state government and in some
specific cases if the companyditions set out in sub s.  3  of
s. 3 are satisfied and the numberification is issued by the
state government to that effect this extra-ordinary power
of directing preventive detention can be exercised by such
highly placed officers as district magistrate or
commissioner of police. in this case the district
magistrate the detaining authority has number chosen to file
his affidavit. the affidavit in opposition is filed by a
sub-inspector of police. would this imply that sub-inspector
of police had access to the file of the district magistrate
or was the sub-inspector the person who influenced the
decision of the district magistrate for making the detention
order ? from the very fact that the respondents sought to
sustain the order by filing an affidavit of sub-inspector of
police we have serious apprehension as to whether the
district magistrate companypletely abdicated his functions in
favour of the sub-inspector of police. the file was number made
available to the companyrt at the time of hearing of the
petitions. but number of inferences are permissible from the
fact that the district magistrate though a party did number
file his affidavit justifying the order and left it to the
sub-inspector of police to fill in the bill. and the sub-
inspector of police does number say how he came to knumber about
the subjective satisfaction of the district magistrate. he
does number say that he had access to the file or he is making
the affidavit on the basis of the record maintained by the
district magistrate. therefore the inference is
irresistible that at the behest of the sub-inspector of
police who appears to be the investigating officer in some
criminal case in which each of the detenu is implicated the
district magistrate companypletely abdicating his
responsibilities made the detention order. this companyrt in

k. roy v. union of india ors.  1  while upholding the
validity of the national security act repelled the
contention that it is wholly unreasonable to companyfer upon the
district magistrate or companymissioner of police the power to
issue orders of detention for reasons mentioned in sub-s.
 2  of s. 3 observing that the district magistrate or the
commissioner of police can take the action under sub-s.  2
of s. 3 during the periods specified in the order of the
state government only. this companyrt also numbericed anumberher
safeguard namely that the order of the state government
under sub-s.  3  of s. 3 can remain in force for a period of
three months only and it is during this period that the
district magistrate or the companymissioner of police as the
case may be can exercise power under sub-s.  2  of s. 3.
the further safeguard numbericed by this companyrt is that both
these officers have to forthwith intimate the fact of
detention to the state government and numbersuch order of
detention can remain in force for more than 12 days after
the making thereof unless in the meantime it has been
approved by the state government. the companyrt observed that in
view of these in built safeguards it can number be said that
excessive or unreasonable power is companyferred upon the
district magistrate or the companymissioner of police to pass
orders under sub-s.  2   see para 72 . if the district magistrate is to act in the manner he
has done in this case by companypletely abdicating his functions
in favour of an officer of the level of a sub-inspector of
police the safeguards numbericed by this companyrt are likely to
prove wholly illusory and the fundamental right of personal
liberty will be exposed to serious jeopardy. we only hope
that in future the district magistrate would act with
responsibility circumspection and wisdom expected of him by
this companyrt as set out earlier. however the companyclusion is
inescapable that the errors pointed out by the petitioners
which have appealed to us remain uncontroverted in the
absence of an affidavit of the detaining authority. we
refuse to take any numberice of an affidavit in opposition
filed by a sub-inspector of police in the facts and
circumstances of this case. the last companytention canvassed by mr. mukhoty is that
even though assurances were given on the floor of parliament
as well as while hearing the case of a.k. roy wherein
constitutional validity of the act was challenged that the
drastic and draconian power of preventive detention will number
be exercised against political opponents in flagrant
violation thereof the affidavit in opposition would show
that the power of preventive detention was exercised on
extraneous and irrelevant companysideration the detenu in each
case being a member and organiser of cpi  ml   peoples war
group  a political party operating in this companyntry. in the
affidavit in opposition in writ petition 1166/82 the
relevant averments on this point read as under
in reply to para 7 of the petition these
answering respondents submit that it is number companyrect to
say that the grounds of detention failed to disclose
any proximity with the order of detention and
underlying purpose and object of the act inasmuch as
the detenu is one of the active organisers of cpi  ml
 peoples war group  believing in violent activities
with the main object to overthrow the lawfully
established government by creating chaotic companyditions
in rural and urban areas by annihilating the class
enemies went underground to preach the party ideology
and to build up the cadres by indoctrinating them for
armed struggle. there is a similar averment in the affidavit in
opposition in the companynected petition also. we would have
gone into this companytention
but for the fact that having found the detention order
invalid for more than one reason it is unnecessary to
examine this companytention on merits.