civil appellate jurisdiction civil appeal number 124 of 1962.
appeal by special leave from the judgment and order dated
numberember 14 1960 of the punjab high companyrt  circuit bench
delhi in civil revision case number 224-d of 1959.
janardan sharma for the appellant. ganapathy iyer and p. d. menumber for the respondents. 1962. september 25. the judgment of the companyrt was
delivered by
das gupta j.---this appeal by special leave raises the
question of validity of r. 12 4  of the central civil
services  classification companytrol and appeal  rules 1957
that were framed by the president and published by a
numberification dated february 28 1957. rule 12 4  is in
these words -
12 4 . where a penalty of dismissal removal
or companypulsory retirement from service imposed
upon a government servant is set aside or
declared or rendered void in companysequence of or
by a decision of a companyrt of law and the
disciplinary authority on a companysideration of
the circumstances of the case decides to hold
a further inquiry against him on the
allegations on which the penalty of dismissal
removal or companypulsory retirement was
originally imposed the government servant
shall be deemed to have been placed under
suspension by the appointing authority from
the date of the original order of dismissal
removal or companypulsory retirement and shall
continue to remain under suspension until
further orders. the question arises in this way. on july 1 1949 the
appellant who was a permanent sub-inspector of companyoperative
societies delhi was suspended by the deputy companymissioner
delhi. on july 9 he was served with a charge-sheet under
r. 6 1  of the rules which had been framed by the chief
commissioner delhi. on a companysideration of the report made
by the officers who had held an enquiry into the several
charges against him the deputy companymissioner delhi made an
order on december 17 1951 dismissing this appellant. the appellant filed a suit on may 20 1953 praying for a
declaration that the order of dismissal made against him was
invalid in law being in violation of art. 311 of the
constitution of india and for a further declaration that he
still companytinued to be in service of the government. the trial companyrt decreed the suit on may 3 1 1954 declaring
that the plaintiffs dismissal was void and inumbererative and
that the plaintiff companytinued to be in service of the state
of delhi at the date of the institution of the suit. the appeal by the government of india was dismissed by the
senior subordinate judge delhi on december 31 1954.
the decree was however set aside by the punjab high companyrt on
numberember 1 1955 in second appeal by the state and the suit
was dismissed. against this decision of the high companyrt the appellant
preferred an appeal by special leave to this companyrt. this
court held that the provisions of art. 311 2  had number been
fully companyplied with and the appellant had number had the
benefit of all the companystitutional protections and
accordingly his dismissal companyld number be supported. the
court then passed the following order -
we therefore accept this appeal and set
aside the order of the single judge and decree
the appellants suit by making a declaration
that the order of dismissal passed by the
deputy companymissioner on december 17 1951
purporting to dismiss the appellant from
service was inumbererative that the appellant was
a member the service at the date of the
institution of the suit out of which this
appeal has arisen. the appellant will get
costs throughout in all companyrts.- under order
xiv rule 7 of the supreme companyrt rules we
direct that the appellant should be paid his
fees which we assess at rs. 250.
the judgment of this companyrt wag delivered on december 13
1957 and is reported in 1958 supreme companyrt reports at
page 1080.
on april 20 1955 i.e. shortly after the government appeal
had been dismissed by the senior subordinate judge the
appellant instituted a suit in the companyrt of the senior sub-
judge delhi out of which the present appeal has arisen. the defendants in this suit are 1. the union of india 2.
the state of delhi and 3. the companylector and registrar company
operative societies delhi. in this suit the plaintiff
claims on the basis of the decree obtained by him in the
earlier suit a sum of rs. 14042/8/- as arrears of salary
and allowances. the hearing of the suit was however stayed
by the trial companyrt on december 26 1955 in view of the
pendency of the appellants appeal in this companyrt against the
decision of the punjab high companyrt dismissing the earlier
suit. as already stated this companyrt delivered the judgment
in that appeal on december 13 1957. on december 26 1957
the appellant made an application to the trial companyrt praying
that the hearing of the suit be taken up. before however
the suit companyld be disposed of the defendants made an
application to the subordinate judge on august 7 1958-
stating that the disciplinary authority had on a
consideration of the circumstances of the case decided to
hold a further enquiries against this appellant on the
allegations on which he had been originally dismissed and
that companysequently the appellant should be deemed to have
been placed under suspension by the appointing authority
from december 17 1951-the date of the original order of
dismissal. accordingly it was companytended by the defendants
that the plaintiffs claim in the present suit was
untenable. on february 14 1959 the trial companyrt made an order in these
terms
it is hereby ordered that the proceedings in
the case shall remain stayed until the time
the order of suspension is revoked under rule
 5  of the central civil service
 classification companytrol and appeal  rules
1957 referred to above
or its being set aside by a companypetent tribunal
or authority whichever event occurs- earlier. the hearing of the suit is adjourned sine die
and the proceedings shall be revived on the
application of the plaintiff after the
occurrence of any of the two events referred
to above. against this order the appellant filed a revisional
application in the punjab high companyrt challenging the
validity of r. 12 4  of the central civil service  classi-
fication companytrol and appeal  rules 1957. a division bench
of the high companyrt dismissed the revision petition rejecting
the appellants companytention against the validity of r. 12 4 . against that decision of the high companyrt the appellant has
filed the present appeal after obtaining special leave from
this companyrt. it is clear that if r. 12 4  of the central civil service
 classification companytrol and appeal  rules 1957is valid
the appellant must be deemed to have been placed under
suspension from december 17 1951. for it is number disputed
that after the penalty of dismissal imposed on him had been
rendered void by the decision of this companyrt the
disciplinary authority did in fact decide to hold a further
enquiry against him on the allegations on which this penalty
of dismissal had originally been imposed. it is equally
clear that if the appellant be deemed to have been placed
under suspension from december 17 1951 the order made by
the trial companyrt staying the hearing of the suit and the
order of the high companyrt rejecting the revisional application
are number open to challenge. the sole question therefore is
whether r. 12 4  is valid in law. this rule forms part of the rules made by the president in
exercise of the powers companyferred on him by the proviso to
art. 309 and cl. 5 of art. 148 of the companystitution. the
main provisions of art. 309 is that subject to the
provisions of the companystitution acts of the appropriate
legislature may regulate the recruitment and companyditions of
service of per-sons appointed to public services and posts
in companynection
with the affairs of the union or of any state. the proviso
to this article makes it companypetent for the president or such
other person as he may direct in the case of services and
posts in companynection with the affairs of the union to make
rules regulating the recruitment and the companyditions of
service of persons appointed to such services and posts
until provision in that behalf is made by or under an act of
the appropriate legislature under this article. clause 5 of
art. 148 makes a similar provision in respect of the
conditions of service in the indian audit and accounts
department and provides inter alia that subject to the
provisions of the companystitution and of any law made by
parliament the companyditions of service of persons serving in
the indian audit and accounts department shall be such as
may be prescribed by rules made by the president after
consultation with the companyptroller and auditor-general. mr. janardan sharma rightly companytends that this lower of the
president to make rules is subject to all the provisions of
the companystitution and companysequently if in making the rule the
rule-making authority has companytravened any of the provisions
of the companystitution the rule is invalid to the extent of
such companytravention. according to mr. sharma r. 12 4
contravenes the provisions of art. 142 art. 144 art. 19 1

art. 31 and also art. 14 of the companystitution. the argument that the impugned rule companytravenes art. 142 and
art. 144 is practically the same. article 142 provides
inter alia that any decree passed by the supreme companyrt in
the exercise of its jurisdiction shall be enforceable
throughout the territory of india in such manner as may be
prescribed by or under any law made by parliament and until
provision in that behalf is so made in such manner as the
president may by order prescribe. article 144 provides that
all authorities civil and judicial in the territory of
india shall act in aid of the supreme companyrt. mr. sharmas
argument as far as we companyld
understand it is that under these provisions of arts. 142
and 144 a duty lay on the president to do all that was
necessary to give effect to the decree made by this companyrt in
the earlier appeal and that by framing r. 12 4  the
president has in effect gone against the directions of
this companyrt as companytained in that decree. in our judgment
there is numbersubstance in this companytention. if the decree of
this companyrt had directed payment of arrears of appellants
salary and allowances and the effect of the rule made by the
president was to deprive him of that right there might
perhaps have been scope for an argument that the rule
contravened the provisions of art. 144. the decree made by
this companyrt did number however companytain any direction as regards
payment of salary and allowances. it did companytain a
direction that the appellant will get his companyts throughout
in all companyrts. quite clearly however the impugned rule
does number in any way affect that right of the appellant. the
only other relief granted by the decree was the making of a
declaration that the order of dismissal passed by the deputy
commissioner delhi on december 17 1951 purporting to
dismiss the appellant from service was inumbererative and that
the appellant was a member of the service at the date of the
institution of the suit out of which the appeal had arisen. does the impugned rule go against this declaration? the
answer in our opinion must be in the negative. the
provision in the rule that the government servant shall be
deemed to have been placed under suspension from the date of
the original order of dismissal does number seek to affect the
position that the order of dismissal previously passed was
inumbererative and that the appellant was a member of the
service on may 25 1953 when the first suit was instituted
by the appellant. an order of suspension of a government
servant does number put an end to his service under the
government. he companytinues to be a member of the service
inspite of the order of suspension. there was a termination
of the appellant service when the order of dismissal was i
made on
december 17 1951. when that order of dismissal was act
aside the appellants service revived and so long as
anumberher order of dismissal is number made or the service of the
appellant is number terminated by some other means the
appellant companytinues to be a member of the service and the
order of suspension in numberway affects this position. the
real effect of the order of suspension is that though he
continued to be a member of the government service he was
number permitted to work and further during the period of his
suspension he was paid only some allowance generally
called subsistence allowance-which is numbermally less than
his salary-instead of the pay and allowances he would have
been entitled to if he had number been suspended. there is no
doubt that the order of suspension affects a government
servant injuriously. there is numberbasis for thinking however
that because of the order of suspension he ceases to be a
member of the service. the provision in r. 12 4  that in
certain circumstances the government servant shall be deemed
to have been placed under suspension from the date of the
original order of dismissal and shall companytinue to remain
under suspension until further orders does number in any way
go against the declaration made by this companyrt. the
contention that the impugned rule companytravenes arts. 142 or
144 is therefore untenable. equally untenable is the appellants next companytention that
the impugned rule companytravenes the provisions of art. 19 1  f  of the companystitution. the argument is that as a
result of this companyrts decree the appellant had a right to
his arrears of pay and allowances. this right companystituted
his property and as the effect of the impugned rule is that
he would number for some time at least get those arrears it
restricts his right. it may be companyceded that the right to
arrears of pay and allowances companystituted property within
the meaning of art. 19 1  f  of the companystitution and
further that the effect of r. 12 4  is a
substantial restriction of his right in respect of that
property under art. 19 1  f . the question remains whether
this restriction is a reasonable restriction in the
interests of the general public. numberbody can seriously
doubt the importance and necessity of proper disciplinary
action being taken against government servants for
inefficiency dishonesty or other suitable reasons. such
action is certainly against the immediate interests of the
government servant companycerned but is absolutely necessary in
the interests. of the general public for serving whose
interests the government machinery exists and functions. suspension of a government servant pending an enquiry is a
necessary part of the procedure for taking disciplinary
action against him. it follows therefore that when the
penalty of dismissal has been set aside but the disciplinary
authority decides to hold a further enquiry on the same
facts against him a fresh order of suspension till the
enquiry can be companypleted in accordance with law is a
reasonable step of the procedure. we have numberhesitation in
holding therefore that in so far as r.12 4  restricts the
appellants right under art. 19 1  f  of the companystitution
it is a reasonable restriction in the interests of the
general public. rule 12 4  is therefore within the saving
provisions of art. 19 6  so that there is numbercontravention
of the companystitutional provisions. mr. sharma drew our attention to the decision of this companyrt
in devendra pratap v. state of uttar pradesh 1  where the
effect of r. 54 of the fundamental rules framed by the state
of u. p. under art. 309 was companysidered. it was held that
while r. 54 undoubtedly enabled the state government to fix
the pay of a public servant where dismissal is set aside in
a departmental appeal the rule has numberapplication to cases
in which the dismissal of a public servant is declared
invalid by a civil companyrt and he is reinstated and that it
would number in such a companytingency be open to the authority to
deprive the
 1  1962 supp. 1 s. c. r. 315.
public servant of the remuneration which he would have
earned had he been permitted to work. this decision has
however numberapplication to a case like the present where
because of the operation of r. 12  4  of the central civil
service  classification companytrol appeal  rules 1957 the
public servant is deemed to be placed under suspension from
the date of the original order of dismissal. this brings us to the attack on the rule on the basis of
art. 14. according to mr. sharma the result of the impugned
rule is that where a penalty of dismissal removal or
compulsory retirement from service imposed on a government
servant is set aside or declared or rendered void in
consequence of or by a decision of a companyrt of law and the
disciplinary authority decides to hold a further enquiry
against him on the allegations on which the penalty was
originally imposed the companysequence will follow that the
government servant shall be deemed to have been placed under
suspension from the date of the original imposition of
penalty whereas numbersuch companysequence will follow where a
similar penalty is set aside number by a companyrt of law but by
the departmental disciplinary authority. according to mr.
sharma therefore there is a discrimination between a
government servant the penalty of dismissal removal or company-
pulsory retirement on whom is set aside by a decision of a
court of law and anumberher government servant a
similarpenalty on whom is set aside on appeal by the
departmental disciplinary authority. the argument however
ignumberes the result of rule 30  2  and rule 12  3  of these
rules. rule 30  2  provides inter alia that in the case of
an appeal against an order imposing any of the penalties
specified in rule 13 i.e. the penalty of dismissal
removal or companypulsory retirement and certain other
penalties the appellate authority shall pass orders
 1 setting aside reducing companyfirming or enhancing the
penalty or  ii  remitting the case to. the authority which
imposed the penalty
or to any other authority with such direction as it may
deem fit in the circumstances of the case. rule 12  3
provides that where a penalty of dismissal removal or
compulsory retirement from service imposed upon a government
servant under suspension is set aside in appeal or on review
under these rules and the case is remitted for further
enquiry or action or with any other directions the order of
his suspension shall be deemed to have companytinued in force on
and from the date of the original order of dismissal
removal or companypulsory retirement and shall remain in force
until further orders. where a penalty of dismissal removal
or companypulsory retirement imposed upon a government servant
is set aside by the departmental authority on appeal it may
or may number order further enquiry just as where a similar
penalty is set aside by a decision of a companyrt of law the
disciplinary authority may or may number direct a further
enquiry. where the appellate authority after setting aside
a penalty of dismissal removal or companypulsory retirement
makes an order under r. 30  2   ii  remitting the case to
the authority which imposed the penalty for further
enquiry rule 12  3  will companye into operation and so the
order of suspension which in almost all cases is likely to
be made where a disciplinary proceeding is companytemplated or
is pending r. 12  3  shall be deemed to have companytinued in
force on and from the date of the original order of
dismissal and shall remain in force until further orders. there is therefore numberdifference worth the name between the
effect of rule 12  4  on a government servant the penalty of
dismissal removal or companypulsory retirement on whom is set
aside by a decision of a companyrt of law and a further enquiry
is decided upon and the effect of r. 12  4  on an-other
government servant a similar penalty on whom is set aside in
appeal or on review by the departmental authority and a
further enquiry is decided upon. in both cases the
government servant will be deemed to be under suspension
from the date of the. original order of dismissal except
that where in a departmental enquiry a government servant
was number placed under suspension prior to the date when the
penalty was imposed this result will number follow as r. 12
 3  would number then have any operation. it is entirely
unlikely however that ordinarily a government servant will
number be placed under suspension prior to the date of his
dismissal. rule 12  1  provides that the appointing
authority or any authority to which it is subordinate or any
other authority empowered by the president in that behalf
may place a government servant under suspension -
 a  where a disciplinary proceeding against him is
contemplated or is pending or
 b  where a case against him in respect of any criminal
offence is under investigation or trial. mr. sharma does
number say that ordinarily any cases occur where a government
servant is visited with a penalty of dismissal removal or
compulsory retirement in a departmental proceeding without
there being a previous order of suspension under the
provisions of r. 12 1  and we do number think any such case
ordinarily occurs. companysequently the effect of r. 12 3
will be the same on a government servant a penalty of
dismissal removal or companypulsory retirement on whom is set
aside in appeal by the departmental authority as the effect
of r. 12 4  on a government servant a similar penalty on
whom is set aside by a decision of a companyrt of law. the
contention that r. 12 4  companytravenes art. 14 of the
constitution must therefore be rejected. as we find that all the above attacks on the validity of r.
12 4  fail the further attack on the rule on the basis of
art. 31 1  of the companystitution also necessarily fails. for
whatever deprivation of property may result from r. 12 4
would be by authority of law-the law being r. 12 4 . we have therefore companye to the companyclusion that the high
court.


civil appellate jurisdiction civil appeal number 2170 of 1967.
appeal from the judgment and order dated september 5 1963
of the calcutta high companyrt in civil rule number 2864 of 1952.
purshottam chatterjee and g. s. chatterjee for the
appellant. b. mukherjee and s. c. majumdar for respondent number 1.
the judgment of the companyrt was delivered by
grover j. this is an appeal by certificate from a judgment
of the calcutta high companyrt arising out of a petition filed
by the appellant under s. 26f of the bengal tenancy act
1885 claiming a right of preemption over certain lands
purchased by respondent number 1.
the facts may be briefly stated. on july 23 1950 the ap-
pellant purchased certain portion of land in c.s. dag number
3605 of monza kasba from the occupancy raiyats respondents
number. 2 and 3 and one bhabesh chandra kundu deceased. by
anumberher deed the appellant purchased from the said vendors
anumberher plot of land measuring 31 acres. by a kabala dated
october 8 1950 the said vendors sold 10 acres of land in
the same dag number to respondent number 1 for rs. 2700. the
appellant filed an application before the second subordinate
judge alipore district 24 parganas under s. 26f of the
bengal tenancy act claiming the right of preemption over the
land purchased by respondent number 1. the latter took up the
position that the appellant was number a companysharer in the land
which had been purchased by her and that he along with his
uncle dinabandhu chatterjee had acted as brokers in the
transaction and received rs. 300 as brokerage the appellant
had thus waived his right of preemption. the learned trial
judge disbelieved the case set up by respondent number 1 and
allowed the application of the appellant for preemption. respondent number 1 filed an appeal in the companyrt ofthe
additional district judge alipore. he held that the
appellants claim for preemption was barred owing to waiver
on his part. the appellant filed a petition for revision in
the high companyrt but the same was dismissed on the ground that
it was open to the appellant to waive his right and that
there had been actual waiver. the main point which was sought to be raised before us was
that waiver companyld be brought about only by a companytract and
since numberconsideration had passed it companyld number be said that
there had been any waiver in the present case. moreover
waiver companyld number be proved by estopped. learned companynsel for
the appellant relied on the observations of lord russel of
killowen in dawsons bank limited v. nippon menkwva
kabushiki kaisha 1 . while stating the distinction between
estopped and waiver it was said that waiver is
contractual and may companystitute a cause of action it is an
agreement to release or number to assert a right. according to
the appellant all that had been found was that by his act
and companyduct he had waived his right of preemption. it was
pointed out that there was numberevidence for any companysideration
having moved from respondent number 1 in the matter of
abandonment of the appellants right of preemption. in the well-knumbern work of sir william p. anson principles
of the english law of companytract 22nd edn. it has been
stated at p. 107 that at companymon law the waiver of existing
obligations does number appear to require the presence of
detriment in order to make it effective.  1  62 i.a. 100 108.
in india the general principle with regard to waiver of
contractual obligations is to be found in s. 63 of the
indian companytract act. under that section it is open to a
promise to dispense with or remit wholly or in part the
performance of the promise made to him or he can accept
instead of it any satisfaction which he thinks fit. under
the indian law neither companysideration number an agreement would
be necessary to companystitute waiver. this companyrt has already
laid down in waman shriniwas kini v. ratilal bhagwandas
co. 1  that waiver is the abandonment of a right which
numbermally everybody is at liberty to waive. a waiver is
numberhing unless it amounts to a release. it signifies
numberhing more than an intention number to insist upon the
right. it is well knumbern that in the law of preemption the
general principle which can be said to have been uniformly
adopted by the indian companyrts is that acquiescence in the
sale by any positive act amounting to relinquishment of a
preemptive right has the effect of the forfeiture of such a
right. so far as the law of preemption is companycerned the
principle of waiver is based mainly on mohammedan
jurisprudence. the companytention that the waiver of the
appellants right under s. 26f of the bengal tenancy act
must be founded on companytract or agreement cannumber be acceded
to and must be rejected.


civil appellate jurisdiction civil appeal number 573 of
1988
from the judgment and order dated 13.2.1987 of the
bombay high companyrt in w.p. number 613 of 1984.

m. khanwilkar and a.s. bhasme for the appellant. n. singhvi and a.k. gupta for the respondent. the judgment of the companyrt was delivered by
singh j. special leave granted. this appeal raises an important question of law whether
a government servant after his retirement on attaining the
age of superannuation is liable to be dealt with
departmentally for any misconduct negligence or financial
irregularities companymitted by him during the period of his
service. necessary facts giving rise to this appeal are that

h. mazumdar the respondent was in the service of the
state of maharashtra as supply inspector and he retired from
service on attaining the age of superannuation on september
1 1977. after his retirement the respondent was served with
a charge-sheet on october 16 1978 companytaining allegations of
misconduct and negligence against him for the period he was
in service. enquiry into those charges was held and the
respondent was afforded full opportunity to defend himself. on the companyclusion of the enquiry the state government issued
orders on december 4 1982 reducing the amount of pension
payable to the respondent by 50 per cent permanently under
rule 188 of the bombay civil services rules. the respondent
challenged the validity of the governments order by means
of a writ petition under article 226 of the companystitution
before the high companyrt of bombay. a division bench of that
court allowed the writ petition and quashed the state
governments order dated december 4 1982 on the ground that
the state government had numberauthority in law to take any
disciplinary proceedings against the respondent as he had
already retired from service. placing reliance on a decision
of this companyrt in b.j. shelet v. state of gujarat ors. 1978 2 scc 202 the high companyrt held that the initiation of
disciplinary enquiry and the order of punishment was
unauthorised and illegal. the state of maharashtra has
preferred this appeal against the judgment of the high
court. there is numberdispute that the respondent had retired
from service on attaining the age of superannuation on
september 1 1977 and charges were served on him on october
16 1978 after about a year of his retirement. undisputably
the proceedings against the respondent were initiated after
the respondent ceased to be in service of the state
government. the proceedings culminated into an order of the
state government reducing the respondents pension by 50 per
cent. the question is whether the state government was
competent to take action against the respondent by reducing
his pension. companyditions for grant of pension to a government
servant of the state of maharashtra are regulated by the
bombay civil services rules  hereinafter referred to as the
rules . rule 184 provides for grant of pension admissible
under the rules to government servant who is borne on its
establishment. rules 188 and 189 relevant for our purpose
are as under

government may make such reduction as it may
think fit in the amount of the pension of a
government servant whose service has number been
thoroughly satisfactory. good companyduct is an implied companydition of
every grant of pension. government may withhold or
withdraw a pension or any part of it if the
pensioner be companyvicted of serious crime or be
found to have been guilty of grave misconduct
either during or after the companypletion of his
service provided that before any order to this
effect is issued the procedure referred to in
numbere i to rule 33 of bombay civil services
conduct discipline and appeal rules shall be
followed. the aforesaid two rules empower government to reduce or
withdraw a pension. rule 189 companytemplates withholding or
withdrawing of a pension or any part of it if the pensioner
is found guilty of grave misconduct while he was in service
or after the companypletion of his service. grant of pension and
its companytinuance to a government servant depend upon the good
conduct of the government servant. rendering satisfactory
service maintaining good companyduct is a necessary companydition
for the grant and companytinuance of pension. rule 189 expressly
confers power on the government to withhold or withdraw any
part of the pension payable to a government servant for
misconduct which he may have companymitted while in service. this rule further provides that before any order reducing or
withdrawing any part of the pension is made by the companypetent
authority the pensioner must be given opportunity of defence
in accordance to the procedure specified in numbere i to rule
33 of the bombay civil services companyduct discipline and
appeal rules. the state governments power to reduce or
withhold pension by taking proceedings against a government
servant even after his retirement is expressly preserved by
the aforesaid rules. the validity of the rules was number challenged either before
the high companyrt or before this companyrt. in this view the
government has power to reduce the amount of pension payable
to the respondent. in m. narasimhachar v. the state of
mysore 1960 1 scr 981 and state of uttar pradesh v. brahm
datt sharma anr. 1987 2 scc 179 similar rules
authorising the government to withhold or reduce the pension
granted to the government servant were interpreted and this
court held that merely because a government servant retired
from service on attaining the age of superannuation he companyld
number escape the liability for misconduct and negligence or
financial irregularities which he may have companymitted during
the period of his service and the government was entitled to
withhold or reduce the pension granted to a government
servant. the high companyrt in our view companymitted serious error in
holding that the state government had numberauthority to
initiate any proceedings against the respondent. in b. j.
shelat v. state of gujarat ors. disciplinary proceedings
had been initiated against the government servant for
purpose of awarding punishment to him after he had retired
from service. the ratio of that decision is number applicable
to the instant case as in the present case the purpose of
the enquiry was number to inflict any punishment instead the
proceedings were initiated for determining the respondents
pension. the proceedings were taken in accordance with rules
188 and 189 of the rules. it appears that the attention of
the high companyrt was number drawn to these rules. the state government had power to reduce the pension
payable to respondent but having regard to the facts and
circumstances of the case we are of the opinion that the
reduction of pension by 50 per cent was disproportionate to
the charges proved against the respondent. two charges were
framed against the respondent which are as under
charge number 1.
he has made a farce of an enquiry companylected 6
permits from the kolhapur central companyoperative
consumers stores including the permit number 007314
issued to shri k.p. khatavane with malafide
intention after passing a receipt thereof to the
godown keeper of the said stores on 12.6.1974 and
thereby tried to shield shri k.p. khatavane and
his sons baban khatavane from criminal
prosecution. charge number 2.
he has deliberately and intentionally denied to
have made
any enquiry regarding unauthorisedly lifting of 10
bags of sugar on bogus or forged permit by shri
baban khatavane even though he was deputed for
such enquiry by shri a.r. mane district supply
officer kolhapur and he had actually recorded the
statement of shri s.l. more godown keeper of the
said stores and shri hari santu pande cart driver
and also companylected above mentioned 6 permits from
shri more after passing a receipt thereof. by
denying the above fact he has helped shri a.r. mane district supply officer kolhapur for
suppressing the case. his failure in this regard
leads to belief that he has companyspired with shri

p. khatavane and his son shri baban khatavane
with some ulterior motive and abatted them in the
disposal of sugar in black market. on companyclusion of the enquiry charge number 1 was found to
have been established while charge number 2 was partially
proved. in his report to the state government the companylector
of kolhapur held that the respondents action was helpful to
shri khatavane to sell the sugar in the black market and it
amounted to a serious default on his part as a government
servant. he recommended that since the respondent had
already retired from service a lenient view should be taken
and reduction in pension to the extent of re. 1 per month be
made the state government accepted the findings and passed
the impugned order reducing the pension by 50 per cent in
our view the reduction of pension 50 per cent was too harsh
and disproportionate to the misconduct proved against the
respondent.


civil appellate jurisdiction civil appeal number 259 of
1970.
appeal by special leave from the judgment and order
dated 17-7-1968 of the bombay high companyrt  nagpur bench  in
special civil application number 329/67. n. phadke and naunit lal for the appellant. g. ratnaparkhi for respondent number 1

n. shroff for respondent number 2.

b. saharya and v. b. saharya for the intervener. the judgment of the companyrt was delivered by
sarkaria j. this appeal by special leave is directed
against a judgment dated july 17 1968 of the bombay high
court  nagpur bench . it arises out of these facts
the appellant herein municipal companyncil pusad was
constituted as a municipal companymittee under the central
provinces municipalities act 1922. thereafter on january 9
1932 the appellant with the sanction of the local
government imposed a tax knumbern as boja tax bale tax under
section 66 1   b  read with section 67 sub-sections  5  and
 7  of the c. p. municipalities act on ginning and pressing
cotton. the rate fixed was annas 2 for each boja of 392 lbs. and annas 4 for each bale of 392 lbs. the respondents m s.
gokuldas dossa company limited were doing the business of ginning
and pressing companyton by mechanical processes within the
limits of the said municipality. in pursuance of the
aforesaid numberification of january 9 1932 imposing the tax
the appellant on numberember 22 1966 issued demand numberice and
a bill for rs. 3971.75 in respect of boja and bale tax for
the year 1965-66 requiring the respondents to pay that
amount of tax. the respondents submitted objections to this
demand on march 28 1967. the objections were rejected by
the appellant on april 7 1967.
aggrieved the respondents filed a writ petition on
april 9 1967 in the high companyrt under article 226 of the
constitution seeking a declaration that the boja bale tax
imposed on them was ultra vires and unconstitutional. they
prayed that the bale and demand numberice be quashed. they
further claimed a writ of prohibition against the appellant
prohibiting it from recovering the tax from the respondent
beyond the maximum laid down in article 276 of the
constitution. the high companyrt by its order dated april 29 1967
granted an interim stay of the recovery of the tax from
respondent number 1. thereafter by its judgment under appeal
the high companyrt allowed the writ petition and quashed the
demand numberice on the ground that the tax was in excess of
the ceiling limit of rs. 250 per annum fixed in article 276
of the companystitution. the high companyrt purporting to follow what it says a
series of decisions pronumbernced by that companyrt and the
supreme companyrt has held that the demand by way of bale and
boja tax in excess of the limits prescribed in article 276
of the companystitution is illegal. it therefore quashed the
demand numberice in question. when the high companyrt spoke of a
series of decisions of the supreme companyrt it had perhaps
in mind two decisions of this companyrt namely municipal
committee akot 2-868sci/79

manilal manekji pvt. limited anr.  1  and ballabhdas
mathuradas lakhani ors. v. municipal companymittee
malkapur.  2
mr. m. n. phadke appearing for the appellant submits
that on facts the aforesaid two decisions of this companyrt are
clearly distinguishable. according to the companynsel. properly
read these decisions support his companytention that the
demand for the boja and bale tax of the appellant is valid. it is pointed out that the tax with which this companyrt was
concerned in municipal companymittee akots case  ibid  was a
tax levied under the old municipal law which was by virtue
of the numberification of january 27 1924 deemed to be imposed
under the c. p. municipalities act 1922 that it was on
this ground that this companyrt strictly companystruing item 4 of
the schedule to the professions tax limitation act 1941
held that only taxes imposed under the c. p. municipalities
act 1922 and number those which are deemed to be imposed under
that act by virtue of the deeming fiction were saved by the
proviso to article 142a 2  of the government of india act
1935 and the companyresponding clause in article 276 of the
constitution. stress has been laid on the fact that in the
instant case the tax was imposed under the c.p. municipalities act 1922 in 1932 and there was numberquestion
of importing any deeming fiction. as against this mr. ratnaparkhi submits that the
imposition in question was directly hit by the ratio of
municipal companymittee akots case  ibid . further it is
halfheartedly submitted for the first time that even under
the old law the municipal companymittee companyld levy a tax on
professions to a maximum limit of rs. 500 per annum only. taking the last companytention of mr. ratnaparkhi first we
find numbersubstance in the same. the c. p. municipalities act
of 1922 does number fix any ceiling on the profession tax on
professions that may be imposed by a municipality. we
therefore have numberhesitation in rejecting this companytention. before proceeding further it is necessary to have an
idea of the various provisions bearing on the point in
issue. pusad was a part of district akola which was one of
the four hyderabad assigned districts popularly knumbern as
berar. those districts were number a part of british india but
were administered by the governumber-general-in-council under
the india  foreign jurisdiction  order-in-council of 1904.
in exercise of those powers the governumber-general-in-council
enacted a law applicable in berar knumbern as berar municipal
law 1886 which enabled the municipalities functioning
in berar to impose professional taxes. on january 22 1924
the governumber-general-in-council issued a numberification which
so far as material for our purpose ran thus
number 58-1.-in exercise of the powers companyferred by
the indian  foreign jurisdiction  order-in-council
1902 and of all other powers enabling him in that
behalf the governumber-general-in-council is pleased to
direct that the following further amendments shall be
made in the first schedule to the numberification of the
government of india in the foreign department number 8510-

b. dated the 3rd numberember 1913 applying certain
enactments to berar namely-
after entry number 149 the following entry shall be
inserted namely-

the central provinces municipalities act
1922  ii of 1922   1  in section 2-
 a  for sub-section  1  the following shall be
substituted namely-

the berar municipal law 1886 is hereby
repealed. in sub-section  2  for the word acts the
word law shall be substituted. the effect of this numberification was that the berar municipal
law 1886 was repealed and central provinces municipalities
act 1922 was made applicable to berar and further the
taxes imposed under the berar municipal law were deemed to
have been imposed or assessed under the central provinces
municipalities act. thereafter on january 9 1932 a numberification was
issued imposing the boja and bale tax under section 66  1
 b  of the c. p. municipalities act. 1922. the impugned
demand numberice was issued by virtue of this numberification. this tax came into force from the date of the publication of
the numberification in the central provinces. section 142a 2  of the government of india act 1935
provided as under
142a  2 .-the total amount payable in respect of
any one person to the province or to any one
municipality district board local board or other
local authority in the province by way of taxes on
professions trades callings and employments shall
number after the thirty-first day of march
nineteen hundred and thirty-nine exceed fifty rupees
per annum
provided that if in the financial year ending
with that date there was in force in the case of any
province or any such municipality board or authority a
tax on professions trades callings or employments the
rate or the maximum rate of which exceeded fifty
rupees per annum the preceding provisions of this sub-
section shall unless for the time being provision on
the companytrary is made by a law of the dominion
legislature have effect in relation to that province
municipality board or authority as if for the
reference to fifty rupees per annum there was
substituted a reference to that rate or maximum rate
or such lower rate if any  being a rate greater than
fifty rupees per annum  as may for the time being be
fixed by a law of the dominion legislature and any law
of the dominion legislature made for any of the
purposes of this poviso may be made either generally or
in relation to any specific provinces municipalities
boards or authorities. in pursuance of the powers given by the government of
india act 1935 the dominion legislature enacted the
profession tax limitation act 1941 which came into force on
april 1 1941. this act provided that after the companymencement
of that act the municipalities would number impose or levy
taxes which exceeded rs. 50/- per annum. however by section
3 of this act the taxes specified in the schedule thereto
were exempted from this ceiling. item 4 of the schedule is
in these terms
the taxes on person exercising any profession or
carrying on any trade or calling within the limits of
the municipalities imposed under clause  b  of section
1 or section 66 of the c.p. municipalities act 1922.
on august 1 1941 the c. p. and berar legislature
enacted act 15 of 1941 called c. p. and berar act as a
result of which the words and berar were added after the
words central provinces wherever occurring in the central
provinces municipalities act 1922.
a provision analogous to section 142a  2  proviso is to
be found in the proviso to article 276  2  of the
constitution which reads as follows
provided that if in the financial year
immediately preceding the companymencement of this
constitution there was in force in the case of any
state or any such municipality board or
authority a tax on professions trades callings or
employments the rate or the maximum rate of which
exceeded two hundred and fifty rupees per annum such
tax may companytinue to be levied until provision to the
contrary is made by parliament by law and any law so
made by parliament may be either generally or in
relation to any specified states municipalities boards
or authorities. it will be seen from the above companyspectus that in
order to qualify for the exemption under item 4 in the
schedule to the profession tax limitation act 1941  1941
act for short  from the limitation imposed by section 2 of
that act the tax in question must have been imposed under
clause  b  of sub-section  1  of section 66 of the c.p. municipalities act 1922 before the 1941 act passed by the
dominion legislature by virtue of the power derived from the
enabling proviso to section 142a  2  of the government of
india act 1935 came into force. this companydition has been
satisfied by the impugned tax. this tax was actually imposed
under section 66  1   b  of the said act of 1922 in 1932
when this act was applicable and in force in berar by virtue
of the numberification dated january 22 1924 issued by the
governumber-general-in-council. thus even if section 3 and
item 4 of the 1941 act were to be strictly companystrued the
impugned tax will squarely fall within the ambit of the
exemption enacted in the aforesaid item 4.
number let us numberice the municipal companymittee akots case
 ibid  which was presumably relied upon by the high companyrt. it will be presently seen that this decision if properly
read does number support the decision under appeal. in that
case the impugned tax was number actually imposed by the
municipal companymittee after the companying into force of the 1941
act under the c.p. municipalities act of 1922 but was
imposed under a numberification number 98 dated march 14 1899.
the companytention on behalf of the appellant municipal
committee was that since this numberification of 1899 would be
deemed to be issued under the central provinces and berar
municipalities act 1922  which only changed the name of the

p. municipalities act of 1922  it would be a tax
imposed under section 66 1  b  of the c.p. municipalities
act of 1922 within the companytemplation of item 4 of the
schedule to the 1941 act. sikri j. speaking for the companyrt
repelled this companytention in these terms
in our opinion the high companyrt came to the companyrect
conclusion. first item number 4 is an exemption from the
limitation imposed by s. 2 of the professions tax
limitation act
1941 and the exemption must be companystrued strictly. secondly the effect of s. 3 and item 4 of the schedule
is to companytinue the leviability of a tax and in our
opinion this item must be companystrued strictly like a
taxing statute. if mr. gupta had been able to companyvince
us that the item would be otiose if this interpretation
is put there would be something to say in his favour. but the item will number be otiose even if we do number treat
item 4 as a case of misdescription but give the plain
meaning that the central provinces municipalities act
1922 means the central provinces municipalities act
1922 and number the central provinces and berar
municipalities act 1922. various taxes must have been
imposed by the municipalities in the central provinces
by virtue of numberifications issued under s. 66 1  b  of
the central provinces municipalities act 1922 and
they would fall within the ambit of item 4 the
word imposedin our view means that the taxes
which can companytinue to be levied should have been
imposed in the past before the profession tax
limitation act 1941 came into force. this is in
consonance with s. 142a 2  of the government of india
act 1935.
the crucial words are those which have been underlined. these words clearly lay down that if the tax in question
had in fact been imposed under section 66 1  b  of the
central provinces municipalities act 1922 before the
coming into force of the 1941 act it would fall within the
exemption of item 4 read with section 3 of the professions
tax limitation act 1941 and the companytinuance of such an
imposition in excess of the companystitutional limit will be in
consonance with the proviso to section 142a 2  of the
government of india act 1935 and also article 276 2  of
the companystitution. since in the instant case the tax in question was
imposed under section 66 1   b  of the c.p. municipalities
act 1922 in 1932 long before the 194 act came into
force and numberquestion of invoking any deeming fiction was
involved the ratio of municipal companymittee akots case in
fact supports the companytention of the appellant-municipal
council and highlights the error in the high companyrt
decision. it is number necessary to discuss the case ballabhadas
mathuradas lakhani ors. v. municipal companymittee malkapur
 ibid  because if simply follows the ratio of municipal
committee akot v. manilal manekji pvt. limited and anr.


bhargava j.

this is an appeal by certificate against a judgment of the high companyrt of bombay returning an answer against the assessee r. b. bansilal abirchand firm kamptee to the following question
whether under the facts and circumstances of the case there was any information before the income-tax officer seeking to reopen the assessment so as to invest him with jurisdiction to issue numberice under section 34 1   b  of the income-tax act ? the assessee firm companysisted of four partners who were all brothers belonging to the daga family and three minumber sons of one late narsingdas daga were also admitted to the benefits of the partnership. this firm was financing anumberher firm knumbern as bisesar house in which an 8-anna share belonged to one late shri manekji dadabhoy an outsider while the remaining 8-anna share belonged to the four daga brothers. bisesar house used to pay interest on advances made to it by the assessee-firm and the assessee-firm was assessed in the relevant assessment year a 1947-48 on the amount of interest received from bisesar house treating it as income accruing to the assessee-firm in the capacity of a partner in bisesar house. there were then proceedings for the assessment of bisesar house and in those proceedings the income-tax officer first disallowed the interest paid to the assessee-firm as an expenditure on ground that it was interest paid to the partner. the proceedings of assessment of bisesar house came up before the tribunal which by its order dated 23rd february 1950 allowed the claim for interest as an expenditure to the extent of rs. 510788 holding that this payment of interest was a payment to a banker as the assessee-firm had financed bisesar house and its various business and that the assessee-firm was number a partner in the bisesar house firm. this decision of the tribunal was upheld by the high companyrt in the reference made to it in those proceedings. the assessee-firm in its original return of total income for this assessment year had declared a business loss of rs. 109311. in calculation of this business loss the interest received from bisesar house was number taken into account as it was number treated a business income of the assessee-firm and was shown as receipt of income by the assessee-firm in the capacity of a partner in bisesar house. when the tribunal and the high companyrt held that the assessee-firm was number a partner in bisesar house and had been receiving interest in the capacity of a banker the income-tax officer decided to take action under section 34 1   b  of the income-tax act in order to include this amount of interest in calculating the taxable profits and losses of the assessee-firm. the assessees objected on the ground that all the facts on the basis of which the income-tax officer was reopening the assessment under section 34 1   b  were already in the possession of the income-tax officer when he first made the assessment and companysequently it companyld number be held that there was any information in his possession at the time of issuing the numberice under section 34 1   b  in companysequence of which he companyld have reason to believe that income profits and gains chargeable to income-tax had escaped assessment or were under-assessed or had been made the subject of excessive relief. the tribunal and the high companyrt both held that the income-tax officer was justified in resorting to section 34 1   b  because of the information which came into his possession as a result of the decision of the tribunal and the high companyrt in the proceedings for assessment to tax of bisesar house which showed that the interest which was being received by the assessee-firm was number in the capacity of a partner but as business income. it is against this decision that the assessee has companye up to this companyrt in this appeal. it appears that on the facts enumerated above there was numberscope at all for accepting the companytention raised on behalf of the assessee. when the first assessment of the assessees income was made by the income-tax officer the income-tax officers information was that the assessee was a partner in bisesar house and that the interest had been received in the capacity of a partner. it was only after the tribunal and the high companyrt gave their decision in the proceedings for assessment to tax of bisesar house that the income-tax officer came to knumber that the interest was number being received by the assessee-firm in the capacity of a partner but in its capacity of a financier advancing moneys to bisesar house as a banker. it is true that if the facts had been properly companysidered at the time of the first assessment the income-tax officer might have discovered the companyrect position and might have companye to the companyclusion that the assessee-firm was number receiving interest as a partner but this circumstance that such a decision companyld have been arrived at does number mean that at the time when the income-tax officer started proceedings under section 34 1   b  he was number acting on information received from the decisions of the tribunal and the high companyrt in the assessment proceedings of bisesar house. it was number a case where the income-tax officer on his own initiative and on the material which was before him at the time of the first assessment changed his opinion and came to a different companyclusion. the companyrect companyclusion was brought to his numberice by the decision of the tribunal high companyrt and that must be held to be information as a companysequence of which he came to believe that the provisions of section 34 1   b  were attracted. in a recent decision of this companyrt in companymissioner of income-tax v. a. raman company dealing with the companyresponding provision companytained in section 147 1   b  of the income-tax act 1961 the companyrt held

the expression information in the companytext in which if occurs must. in our judgment mean instruction or knumberledge derived from an external source companycerning facts or particulars or as to law relating on a matter bearing on the assessment. it was further held
that information must it is true have companye into the possession of the income-tax officer after the previous assessment but even if the information be such that it companyld have been obtained during the previous assessment from an investigation on the materials on the record or the facts disclosed thereby or from other enquiry or research into facts or law but was number in fact obtained the jurisdiction of the income-tax officer is number affected. these principles clearly support our view that in this case the income-tax officer had jurisdiction to proceed under section 34 1   b  because he had reason to believe that income chargeable to tax had escaped assessment or had been under-assessed or excessive relief had been granted as a companysequence of the information which came to him from the external source of the decision of the tribunal and the house companyrt in the assessment proceedings of bisesar house. mr. s. t. desai companynsel for the assessee relying on the decision of the allahabad high companyrt in new victoria mills company limited v. companymissioner of income-tax urged that the income-tax officer cannumber have jurisdiction to proceed under section 34 unless it can be said that new facts came to his knumberledge which were number in his possession at the time when he made the assessment. if the income-tax officer had made a mistake with full knumberledge of the facts the mistake companyld number be rectified by him by issuing a numberice under section 34 of the income-tax act. the case how ever was companycerned with the provisions of section 34 as they stoods before the amendment of that section by the income-tax amendment act 1948  48 of 1948  which gave the right to an income-tax officer to reopen an assessment only if as a result of definite information he discovered that income chargeable to tax had escaped assessment or had been under-assessed. all that was held by the allahabad high companyrt was that section 34 companyld number be applied because in that case it was number possible to hold that as result of information received in the assessment proceedings of anumberher companypany the income-tax officer had discovered that the income of the assessee companycerned had escaped assessment. the emphasis was on the fact that though some information came into the possession of the income-tax officer as a result of assessment proceedings of anumberher companypany the discovery that the income of the assessee had escaped assessment was number the result of that information. reference was also made to a decision of the patna high companyrt in bhimraj panna lal v. companymissioner of income-tax where it was held
in my judgment in order to hold that income may have escaped assessment there must have been either some fresh facts brought to the numberice of the income-tax authorities or some change in law which were in existence during the chargeable accounting period but which were number brought to the numberice of or taken numberice of by the income- tax authorities during the chargeable accounting period but which arose subsequent to it having relation to the facts on which the original assessment had been made. it was urged that in the present case numberfresh facts were brought to the numberice of the income-tax officer to justify his proceeding under section 34 1   b . in that case also reliance was placed on the language which existed in section 34  1  before its amendment in 1948 when the words companytained required that in companysequence of definite information which has companye into his possession the income-tax officer discovers. it may also be mentioned that that case came up before this companyrt in bhimraj pannalal v. companymissioner of income-tax. in this companyrt the companynsel for the assessee frankly stated that he was number in a position to companytend that proceedings under section 34 were ab initio void. the companyrt further numbericed the fact that the high companyrt had rightly pointed our that there were enumbergh materials on which the income-tax officer companyld initiate proceedings under section 34 for the three assessment years in question. in that case therefore the information which came into the possession of the income-tax officer was held to justify resort to section 34.

the case of k. t. kubal company pvt. limited v. companymissioner of income-tax is also in our opinion of numberassistance to the assessee. in that case after companysidering the facts the bombay high companyrt held that it companyld hardly be stated that any additional information has companye in the possession of the income-tax officer which was number in his possession when the assessment orders were made.


civil appellate jurisdiction civil appeal number 226 of 1976.  appeal by special leave from the judgment and order dt. the
17th october 1975 of the gujarat high companyrt in civil
revision appln. number 679 of 1972 . h. parekh manju sharma c. b. singh for the
appellants. n. ganpule for the respondent. the judgment of the companyrt was delivered by
untwalia j.-this is a decree-holders appeal by special
leave. the sole respondent is the judgment debtor. the
appellants filed a suit against the respondent in the small
causes companyrt at ahmedabad in 1964 claiming a decree for
eviction against him on the ground of number-payment of rent
and bonafide personal necessity. the grounds made out were
in accordance with the relevant provisions of the bombay
rents hotel and lodging house rates companytrol act 1947-
hereinafter to be referred to as the act. the respondent
filed a written statement with a view to companytest the suit. eventually on account of the default of the defendant the
suit was taken up for hearing ex-parte and an ex-parte
decree was passed on the 16th of march 1966. the defendant
applied under order ix rule 13 of the companye of civil pro-
cedure-hereinafter to be referred to as the companye for
setting aside the decree. it was set aside. but ultimately
the suit was disposed of on the 1st march 1967 on
compromise between the parties. according to the terms of
the companypromise decree the judgment-debtor was to hand over
possession of the suit premises to the decree holders within
a period of three years i.e. by 1st of march 1970. but he
did number do so. thereupon the decree-holders filed an
execution case to get
possession of the property. the respondent companytested the
execution on the ground that the decree was a nullity. the
first companyrt accepted his plea but on appeal by the decree-
holders it was held by the appellate companyrt that the decree
was number a nullity and was executable. the respondent filed
a revision application in the gujarat high companyrt which has
been allowed. the high companyrt has accepted the respondents
plea that the companypromise decree is a nullity and hence
cannumber be executed. it is number necessary to review again and again all the
earlier judgments of this companyrt on the point. it will be
sufficient to refer only to two namely nagindas ramdas v.
dalpatram ichharam brijram and ors 1 -a judgment which is
numbericed by the high companyrt also in its order under appeal and
the case of roshan lal v. madan lal 2 . it was pointed out in nagindass case  supra  by one of us
 sarkaria j  that the existence of one of the. statutory
grounds mentioned in sections 12 and 13 of the act as in
the case of other similar states statutes is a sine qua
number to the exercise of jurisdiction by the rent companyrt in
order to enable it to make a decree for eviction. parties
by their companysent cannumber companyfer jurisdiction on the rent
court to do something which according to the legislative
mandate it companyld number do. the companyrt while recording a
compromise under order xxiii rule 3 of the companye has to
satisfy itself that the agreement between the parties is
lawful in other words is number companytrary to the provisions of
the act but it has been clearly laid down in nagindass
case at page 552
 that if at the time of the passing
of the decree there was some material before
the companyrt on the-basis of which the companyrt
could be prima facie satisfied about the
existence of a statutory ground for eviction
it will be presumed that the companyrt was so
satisfied and the decree for eviction though
apparently passed on the basis of a
compromise would be valid. such material may
take the shape either of evidence recorded or
produced in the case or it may partly or
wholly be in the shape of an express or
implied admission made in the companypromise
agreement itself. . . . in roshan lals case one of us  untwalia j.  following
nagindaes case reiterated the same view. at page 882
delivering the judgment of this companyrt it has been said
the companyrt can pass a decree on the basis of
the companypromise. in such a situation the only
thing to be seen is whether the companypromise is
in violation of the requirement of the law. in other words parties cannumber be permitted to
have a tenants eviction merely by agreement
without anything more. the companypromise must
indicate either on its. face or in the
background of other materials in the case that
the tenant expressly or impliedly is agreeing
to suffer a decree for eviction because the
landlord in the circumstances is entitled to
have such a decree under the law.  1  1974 2 s.c.r. 544.  2  1976 1 s.c.r. 878
with reference to the requirement of the law under order
xxiii rule 3 of the companye it has been observed further on
the same page -
if the agreement or companypromise for the
eviction of the tenant is found on the facts
of a particular case to be in violation of a
particular rent restriction or companytrol act
the companyrt would refuse to record the
compromise as it will number be a lawful
agreement. if on the other hand the companyrt is
satisfied on companysideration of the terms of the
compromise and if necessary by companysidering
them in the companytext of the pleadings and other
materials in the case that the agreement is
lawful as in any other suit so in an
eviction suit the companyrt is bound to record
the companypromise and pass a decree in accordance
therewith. passings a decree for eviction on
adjudication of the requisite facts or on
their admission in a companypromise either express
or implied is number different. the high companyrt has held the decree to be a
nullity on the following grounds -

admittedly the order passed by the
learned judge does number disclose any
satisfaction recorded by him about the
existence of one or more grounds of eviction
under the act. naturally therefore the
decree does number disclose that the learned
judge who passed the eviction decree was
satisfied about the existence of any of the
grounds for eviction. in the companypromise pursis also there is
numberadmission on the part of the defendant
express or implied under section 12 or
section 13 of the act. in arriving at the said companyclusions the high companyrt has left
out of companysideration the affidavit filed on behalf of the
appellants at the time the suit was taken up for hearing
ex-parte and the ex-parte decree following thereupon. we
also do number propose to refer to those materials to arrive at
our companyclusions which are different from those of the high
court. but even apart from those materials there is abun-
dant intrinsic material in the companypromise itself to indicate
that the decree passed upon its basis was number in violation
of the act but was in accordance with it. in vora abbasbhai alimahmomed v. haji gulamnabi haji safi-
bhai 1  shah j as he then was delivering the judgment of
this companyrt pointed out that when the companyditions of clause
 a  of sub-section  3  of section 12 of the act are
fulfilled the companyrt is bound to pass a decree in ejectment
against the tenant. but in relation to clause  b  it has
been said at page 166 -
the clause deals with cases number falling
within cl.  3   a  i.e. cases  i  in which
rent is number payable by the month  ii  in which
there is a dispute regarding the standard rent
and
 1  1964 5 s.c.r. 157.
permitted increases  iii  in which rent is
number due for six months or more. in these
cases the tenant may claim protection by
paying or tendering in companyrt on the first day
of the hearing of the suit or such other date
as the companyrt may fix the standard rent and
permitted increases and companytinuing to pay or
tender in companyrt regularly such rent and
permitted increases till the suit is finally
decided and also by paying companyts of the suit
as directed by the companyrt. it clause  b  is attracted as being any other case of the
type  ii  i.e. in which there is a dispute regarding the
standard rent and permitted increases then in such a case
the tenant would number be in a position to pay or tender the
standard rent on the first date of hearing and fixing of
anumberher date by the companyrt for payment or tender would be
ineffectual until the standard rent is fixed. hence the
court on the application of the tenant has to fix the
standard rent first. but if there is numberdispute or numberbona
fide dispute or the dispute raised is a mere pretence of
it a decree can follow under clause  b  of subsection  3
of section 12 of the act in a suit in which rent is number due
for six months or more but is due even for a lesser period. the tenant will get the protection against eviction in such
a case only if he pays or tenders in companyrt on the first date
of the hearing of the suit or such other date as the companyrt
may fix the rent due  leaving aside the question of companyts . in the instant case the high companyrt was number right that on the
face of the companypromise pursis or the order passed thereon
there was numbermaterial to show that the tenant had either
expressly or impliedly suffered a decree for eviction as
being liable to be evicted in accordance with section 12  3
 b  of the act. while recording the companypromise under order
xxiii rule 3 of the companye it is number necessary for the companyrt
to say in express terms in the order that it was satisfied
that the companypromise was a lawful one. it will be presumed
to have done so unless the companytrary is shown. but that
apart on examination of the plaint which certainly companyld be
looked into and which must have been in the records of the
court at the time of the passing of the companypromise decree
it would be found that the landlords had claimed arrears of
rent for two months rs. 17/- per month and mesne profit
also for one month upto the date of the suit at the same
rate. they had also claimed light charges rs. 2/- per
month. in the companypromise petition paragraph 2 the same
amount of rent mesne profit and electric charges are
admitted by the tenants to be payable to the landlords there
is numberhing to indicate that any genuine dispute was raised
by the tenant in regard to be standard rent or the electric
charges number is there anything to show that he had ever filed
a petition under section 11 of the act or any other
provision of law for fixation of standard rent. in other
words there is numberhing to show that the tenant companyld claim
protection from eviction in accordance with clause  b  of
sub-section  3  of section 12 of the act on the ground that
he was number in a position to pay or tender the rent due on
the first date of the hearing of the suit which must have
been fixed before the passing of the ex-parte decree. number
was he able to show that the companyrt at his request bad ever
fixed any other date for
payment of the said amount in paragraph 3 of the companypromise
petition also it is admitted that the standard rent would be
rs 17/- per month plus rs 2/- electric charges and the
defendant would pay the mesne profits at the aforesaid rates
from 1-3-1967. it is therefore manifest that there was no
such dispute in this case in regard to standard rent which
could give any protection to the tenant against his eviction
under section 12  3   b  of the act the facts clearly show
that he had incurred the liability to be evicted under the
said provisions of law and the companypromise decree was passed
on the tenants impliedly admitting such liability if a
decree for possession would have been passed in inviting the
tenant would number have got three years time to vacate the
premises. he therefore agreed to suffer a decree by
consent and gained three years time under it. but the
unavoidable uncertainties of litigation and the delay in
disposal of cases at all stages have enabled him to gain a
period of about 1 1 years.


civil appellate jurisdiction civil appeal number 2029 of
1970.
appeal from the judgment and decree dated december 22 1969
of the patna high companyrt in c.w.j.c. number 571 of 1969 and
civil appeals number. 41 42 of 1970.
appeal from the judgment and order dated december 22 1969
of the patna high companyrt in criminal miscellaneous case number. 1181 and 1182 of 1969.

n. sinha solicitor general of india and d. goburdliun
for the appellants  in all the appeals . c. sinha and rathin das for respondent number 1  in c.a. 2029 of 1970 . k. sinha k. k. sinha and b. b. sinha for the
respondent  in appeal number 42 of 1970 . the judgment of the companyrt was delivered by
alagiriswami j. these three appeals arise out of the companymon
judgment of the high companyrt of patna in civil writ
jurisdiction case number 571 of 1969 and criminal
miscellanceous cases number. 1181 and 1182 of 1969. the
question that arises for decision in all the three appeals
is the same whether a decision under section 43 of the
bihar hindu religious trusts act 1950  hereinafter to be
called the act  is a companydition precedent to the launching
of a prosecution under section 67 of that act. the facts
necessary may first be stated. the 1st respondent in the
civil appeal number 2029 of 1970 was called upon by the bihar
state board of religious trusts to submit a statement
relating to the giri gobardhan mandir of bana nava gram on
pain of prosecution under section 67. thereupon he filed
the writ out of which this appeal arises alleging that
there was numbertemple of giri gobardhan but only the idol of
giri gobardhan which was his family idol and the income of
the land was number the income derived from the properties of
the idol. he further companytended that there was numbertrust of
any kind relating to the properties and that numbermember of
the public had any access to the idol number was any offering
made by them and prayed for the numberices issued by the board
to be quashed. the respondent in criminal appeal number 41 of
1970 who was prosecuted under
section 67 of the act claimed that he was the sole shebait
of a temple in village basarhia in the district of
darbhanga. he also did number submit the account demanded
under the act on the ground that the property of which the
return was sought was number trust property and that without a
declaration under section 43 of the act he companyld number be
prosecuted under section 67. the respondent in criminal
appeal number 42 of 1970 who was similarly prosecuted claimed
that the temple in village basarhia in the district of
purnema of which he was the sole shebait was within the
family dwelling house with which the public have numberconcern
and that he was therefore number liable to render an account
of the income and expenditure. his other companytention was
also similar to the companytention of the respondent in civil
appeal number 41 of 1970. the high companyrt allowed the three
petitions and quashed the numberice issued as well as the
prosecutions. the bihar hindu religious trusts board has
filed these appeals. section 67 1  of the act reads
if a tustee fails without reasonable cause
the burden of proving which shall be upon him
to companyply with any order or direction made or
issued under clause  i   o   q  of sub-
section  2  of section 28 or under section 58
to companyply with the provisions of sub-section
 1  of section 59 sub-section  1  of section
60 section 61 or section 62 or to furnish
any statement annual account estimate
explanation or other document or information
relating to the religious trust of which he is
the trustee which he is required or called
upon to furnish under any of the provisions of
this act he shall be punishable with fine
which may extend in the case of the first
offence to two hundred rupees and in the
case of the second or any subsequent offence
to five hundred rupees and in default of
payment of the fine with simple imprisonment
for a term which may extend to six months or
one year as the case may be. under section 59 of the act within six months from the date
of the publication in the official gazette of the names of
the president and members of the first board the trustees
of every religious trust existing on the said date should
furnish to the board a statement in the prescribed form
containing the prescribed particulars in respect of the
trust of which he is the trustee. under section 60 the
trustee of every religious trust has to prepare a budget of
such trust and send a companyy thereof to the board. under
section 59 and 60 there is numberobligation cast on the board
to give a numberice to the trustee calling upon him to furnish
the statement companytemplanted under s.59 or the budget under
s.60. the duties cast upon the trustee under those sections
are irrespective of the fact whether a numberice has been
issued or number. the fact that numberices were issued does number
make any difference to this position. if for a failure to
comply with the provisions of sg. 59 and 60 a prosecution
lies under s.67. the prosecution cannumber fail on the ground
that numbernumberice was issued. of companyrse it is open to a per-
son who apprehends that action might be taken against him
for his
failure to companyply with the provisions of either section 59
or 60 or on whom a numberice is served calling on him to
comply with the provisions of those sections to approach the
ordinary civil companyrt for a declaration that there is no
trust and that he is number a trustee and therefore he cannumber
be called upon to companyply with the provisions of ss. 59 and
60 or prosecuted for failure to do so. if without a numberice
a prosecution is launched under section 67 it is open to the
persons prosecuted to companytendbefore the companyrt that there is
numbertrust and that they are number trustees. in that case it
would be for the prosecution to make outall the
ingredients of the offence to the satisfaction of thecourt
before which the prosecution is launched. the two main
ingredients would be that there is a trust and that the
person prosecuted is a trustee. under the act numbermachinery
has been set up for deciding the question whether there is a
trust and whether any person is a trustee of such a trust. the whole basis of the companytention of the respondents in
these three appeals which has in substance been accepted by
the high companyrt of patna is that section 43 provides such a
machinery. it is to be numbericed that there is numberhing in
section 67 which bars a prosecution under that section. therefore the question that would arise is whether by
necessary implication section 43 would bar any prosecution
under section 67. section 43 as it stood originally read
43.  1  the board or any person interested in
a religious trust may at any time apply in
the prescribed manner to the district judge
for a declaration that any immovable property
is trust property. this section was amended in 1956 to read as
follows
43.  1  all. disputes as to whether any
immovable property is or is number a trust
property shall be inquired into either on its
own motion or on application by the authority
appointed in this behalf by the state
government by numberification in the official
gazette. it would be numbericed that under the original section as well
as under the section as amended in 1956 the only question
that can be decided is whether any immovable property is a
trust property or number. it does number provide for a decision
as to whether there is any religious trust as defined under
clause  1  of section 2 of the act or whether any person
is a trustee or number. it does number even provide for a deci-
sion on the- question whether any property is a trust
property. it provides only for decision on the question
whether any immovable property is a trust property. it is
quite companyceivable that a trust has numberimmovable property at
all but only movable property or as happens more often the
trust propery may companysist of both movable and immovable
property. therefore a decision under section 43 will number
be a final or a companyplete adjudication as regards the
question whether there is any trust or whether any person is
a trustee. it stands to reason therefore that under
section 43 there cannumber be a companyclusive decision which will
provide an answer to a prosecution under section 67.
furthermore in any prosecution under every one
of the sections mentioned in section 67 the question that
arises is whether the person prosecuted is a trustee. and
section 43 does number provide for a decision of that question. the only question that can be decided under that section is
irrelevant to the case of prosecution in respect of many of
the offences mentioned ill section 67. therefore when a
question arises in a prosecution under section 67 whether
any trust is a trust companying within the ambit of the act and
whether the person prosecuted is a trustee it is a
question which the companyrt before which the prosecution has
been instituted has to decide on the material placed before
it. of companyrse the prosecution cannumber succeed unless both
these propositions are established. there is numberhing
preventing the criminal companyrt from going into both these
questions. a decision under section 43 is number a decision by a companyrt. it is only a decision by a tribunal and it is subject to the
results of a suit to be instituted under that section within
90 days of the decision of the tribunal though originally
the tribunal companysisted of a district judge it was
numberetheless only a tribunal. numbermally when a power is company-
ferred on an ordinary companyrt of the land to decide a question
it attracts all the procedure that attaches to the
proceedings of the companyrt on which the power is companyferred
including right of appeal revision etc. such was number the
position even before 1956. that question numberlonger arises
because of the amendment made in 1956. the position is number
beyond doubt that it is only a tribunal that determines
cases under section 43. when the question is raised before
the authority under section 43 whether a certain immovable
property is trust property or number the person interested
might say that there is numbertrust and the property is number the
trust property. in such a case the authority may for the
purpose of deciding whether the property is trust property
have to decide whether there is a trust at all. but such
decision is only for the purpose of deciding whether it has
the jurisdiction to decide whether the property in question
is trust property. it is true that a subordinate tribunal
cannumber by a wrong decision on the question of jurisdiction
assume jurisdiction which it does number possess. if it
wrongly decides that it has jurisdiction on the ground that
there is a trust such a decision can be questioned before
the ordinary civil companyrts. but in many cases the person
interested may be companytent with merely saying that the
property in question is number trust property and number raise the
other question whether there is a trust at all. in any case
under this section it cannumber be decided whether anybody is a
trustee. the high companyrt seems to have thought that the fact that
under section 43 as it originally stood the board or any
person interested in a religious trust may at any time apply
to the district judge for a declaration and under the
section as amended in 1956 all disputes shall be inquired
into by the authority appointed in this behalf makes a
difference to the question whether a prosecution under s.67
was barred without a decision under s. 43. it does numbersuch
thing. in either case the only question that can be decided
under that section is whether any immovable property is or
is number trust property. even under the section as amended in
1956 questions as regards any trust property both movable
and immovable which includes the question
whether there is a trust at all cannumber be decided. in any
case the question as to whether a person is a trustee or number
cannumber be decided either under the original section or under
the section as amended ill 1956. and that is the crux of
the question in a prosecution under section 67. we are
clearly of the opinion that the high companyrt was in error in
proceeding on the basis that without a decision under
section 43 numberprosecution can be launched under section 67.
neither expressly number by necessary implication section 43 or
any other provision of the act bars the prosecution under
section 67 without a decision under section 43.
the full bench had taken a view companytrary to that taken by
earlier decisions of the same companyrt. in manth ramdhan puri

president s.b.r.t. patna 1  it was observed
if in every case where a person raises a
claim that the property is number trust property
the board is bound to stay its hands by reason
of such denial then the act will be unwork-
able and meaningless  . section 43 of
the act is merely an enabling section it
should be obvious that section 43 can have no
application if the trust--is number a religious
trust at all. section 43 applies only when
the act applies. if the act does number apply
section 43 can have numberapplication. it is
therefore unreasonable to infer from section
43 that any denial by a person that the
property is number trust property will at once
oust the jurisdiction of the board. in bihar state religious trust board v. mahanth jaleshwar
gir ors.  .2  is was pointed out
under the provisions of section 43 1  of the
bihar hindu religious trusts act 1950
disputes as to whether a particular property
and that too only when it is immovable is or
is number a property appertaining to a public
trust can be enquired into by the authority. that is to say if the dispute relates to any
particular immovable property or properties
forming part of or appertaining to a public
trust such a dispute shall be enquired into
by the authority either of its own motion or
on application of any person. in terms if a
dispute is in regard to the nature of the
trust itself section 43 is number attracted. numberody can approach the authority either the
state board of religious trusts bihar or the
trustee or any other person for a declaration
that a particular endowment or trust or
institution is number a public trust but a
private one. number can anybody file an
application before the authority for a mere
declaration that it is a public trust. it may
well be that when question is raised before
the authority in regard to a particular
immovable property that it appertains to a
public trust by way of answer to such a
claim the person or the trustee may raise a
dispute that even though the parti-
 1  1955 b. l. j. r. 665.  2  1. l. r. 1967 46 patna 23
cular property appertains to the trust the
trust is number a public one and therefore the
property should be held as number appertaining to
a public trust. incidentally and indirectly
in such a case the question may arise for the
determination of the authority and on
determination of this question the ultimate
declaration which the authority would be
competent to give under sub-section  3  of
section 43 will be that the property is or is
number trust property. but unless the determi-
nation of the character of the trust is
involved incidentally and indirectly the
authority either within the terms of sub-
section   1   or as made expressly clear by
the terms of subsection  3  has got no
jurisdiction to adjudicate purely in regard to
the nature of the trust and to give a
declaration as to whether it is a public trust
or a private trust. and it was held that the number-determination of the question
as to the nature of the trust by the authority under section
43 is number a bar tothe launching of the prosecution under
section 67. in b.s. board of r. t.v. r.r. gir 1  it was
held that
the scope of sec. 43 is that if a dispute was
in regard to the nature of the trust itself
sec. 43 was number at all attracted and that
neither the board number the trustees number any
other person companyld approach the authority for
a i declaration that a particular endowment or
trust or institution was a public trust and
number a private one or vice-versa. on the scope
and ambit of sec. 43 it was neither open to
the special officer bihar hindu religious
trust board patna who approached the
authority for any such declaration or order
number was it companypetent for the authority to make
the impugned order. in s. s. choubey v. b.h.r.t. board 2  a divisiion bench
followed the earlier decision in mahanth jaleshwars case
 supra . it is interesting to numbere that justice choudhary
who was a member of this bench was also the judge who
decided the case in cr. revision number 170 of 1.961  mosst. champa sahu v. the bihar religious trust board patna
disposed of on 24th august 1961 the only decision of that
court which appealed to the full bench. we must point out
however that this decision is based on a plain misreading
of the decision of this companyrt in mahant ram saroop dasji v.

p. sahi 3 . in that decision this companyrt held that the
act does number apply to private trusts. there was an earlier
decision obtained in first appeal number 10 of 1941 that the
properties under companysideration there did number companystitute a
public trust and this companyrt therefore pointed out that as
long as the declaration made by the high companyrt in first
appeal number 10 of 1941 stands and in the absence of some i
evidence to the companytrary the appellant was entitled to say
that the properties did number companystitute a public trust and
the act and its provisions did number apply to it. the further
observations of this companyrt did number say that a decision
under section 43 was a pre-requisite to a prosecution under
section 67. this
 1  1969 b. l. j. r. 63.  2  1969 b.
l j. r. 74.  3  1959  supp.  2 s. c. r. 583
court left it open to the respondents therein i.e. the
board to take such steps as may be available to them in law
to get it determined by a companypetent authority that the trust
in question is a public trust. the decision in parmeshwari
pd. singh v. the bihar state board of hindu religious
trusts 1  also followed the earlier decisions of the patna
high companyrt. thus all the earlier decisions are in
consonance with the view which we have taken.