original jurisdiction petitions number. 176 177 and 253 of
1956 34 35 51-53 69 70 75 94 137 of 1957 34 58
72 90 92 106 109 115 of 1958.
petitions under article 32 of the companystitution of india for. enforcement of fundamental rights. b. aggarwal and naunit lal for the petitioner  in
petition number 176 of 1956 . achhru ram and naunit lal for the petitioner  in petition
number 177 of 56 . naunit lal for the petitioner  in petitions number. 253/ 56
34 35 51-53 69 70 75 94 and 137/57 34 58 92 106
109 115/58 . radhey lal aggarwal and a. g. ratnaparkhi for the
petitioner  in petition number 90/58 . n. sanyal additional solicitor-general of india

m. sikri advocate-general for the state of punjab
gopal singh and t. m. sen for respondent number 1  in petition
number 176/56 . m. sikri advocate general for the state of punjab and

m. sen for respondent number 1  in petitions number. 177
253/56 34 35 51-53 69 70 75 94 137/57 34 58 72
90 92 106 109 115/58 . s. gheba for respondent number 3  in petition number 90/58 . dipak dutta chowdhury for respondent number 3  in petition number
176/56 . udai bhan chowdhury for respondent number 7  in petition number
59/57  and respondent number 3  in petition number 70/57 . harnam singh and sadhu singh for the interveners  in
petition number 176/56 . 1958. december 8. the judgment of the companyrt was delivered
by
sinha j.-these petitions under art. 32 of the companystitution
impugn the companystitutionality of the punjab security of land
tenure act  punj. x of 1953   which will be referred to
hereinafter as the act  as amended by act xi of 1955. the
petitioners are land-owners of the lands affected by the
provisions of the impugned act. the state of punjab and its
officers besides persons claiming benefits under the act
are the respondents in these several petitions. the impugned act has a history which may shortly be set out. with a view to providing for the security of tenure to
tenants the punjab tenants  security of tenure  ordinance
iv of 1950 was promulgated with effect from may 13 1950.
that ordinance was replaced by the punjab tenants  security
of tenure  act xii of 1950 which came into force on
numberember 6 1950 on the date on which it was first
published in the punjab government gazette. the act
prescribed a limit of one hundred standard acres of land
 equivalent to two hundred ordinary acres  which companyld be
held by a land-owner for his self-cultivation and it
was termed permissible limit - s. 2 3   . any landowner
having land in excess of the permissible limit was
authorized by s. 3 to select for self-cultivation land out
of the entire area held by him in the state of. punjab as
land-owner and reserve it for his own use to the extent of
the permissible limit . this right of reservation had
to be exercised first in respect of land in his self-
cultivation and if the extent of such land fell short of
the permissible limit  he companyld under s. 4 make up the
deficiency by ejecting tenants under him in respect of such
lands as fell within his reserved area. section 5 fixed the
minimum period of tenancy as four years subject to certain
exceptions set out in s. 6. these were some of the salient
features of the act of 1950 which itself was amended by the
punjab tenants  security of tenure  act  punj. v of 1951
which came into force on december 24 1951. by the amending
act the permissible limit was reduced to 50 standard
acres equivalent to 100 ordinary acres and the minimum
period of tenancy was raised to five years. it also made
provisions for preferential right of pre-emption- s. 12a
and companyferred a right of purchase on the tenant in respect
of land in his possession- s. 12b  subject to certain
exceptions s. 12c . anumberher legislation in this series was
the prevention of ejectment  temporary powers  ordinance number
1 of 1952 which came into force on june 11 1952. then
came the punjab security of land tenure act  punj. x of
1953  number impugned which repealed the aforesaid acts xii
of 1950 and v of 1951. it came into force on april 15
1953. this act itself was amended by act lvii of 1953 and
act xi of 1955. though. this act has undergone subsequent
amendments in 1957 and 1958 we are number companycerned with those
amendments because they came into existence after this
court was moved under art. 32 of the companystitution. we are
concerned with the state of the law as it stood after the
amendment of 1955 aforesaid. before dealing with the grounds of attack urged against the
impugned act it is companyvenient to set out
in a nut-shell the salient provisions of the act which
have given rise to the present companytroversy and which give
an idea of the scope and nature of the legislation number under
examination. the act has a short preamble namely to
provide for the security of land tenure and other incidental
matters . the act further reduces the permissible area
 s. 2 3    in relation to a landlord or a tenant to 30
standard acres equivalent to 60 ordinary acres thus
releasing a larger area for re-settlement of tenants ejected
or to be ejected under the provisions of the act. so to
say it creates a pool of surplus area  s. 2 5-a
meaning thereby the area other than thereserved
areain excess of the permissible area as aforesaid. reserved area means the area lawfully reserved by the
landlord under the provisions of the two acts aforesaid
which were repealed by the act- s. 2 4  . the definition of
a tenant under the act includes a sub-tenant and a self-
cultivating lessee- s. 2 6  . as already indicated a
tenant also may be liable to be ejected from any area which
he holds in any capacity whatever in excess of the
permissible area . section 10-a authorizes the state
government or any officer empowered by it in this behalf to
utilize any surplus area for re-settlement of tenants
ejected or to be ejected under the provisions of s. 9 1 . but a tenant inducted on to such surplus area  holds the
land under the land-owner who thus becomes entitled to
receipt of rent from the tenant. section 12 lays down the
maximum rent payable by a tenant. section 17 recognizes the
rights of certain tenants to pre-empt sales or fore-closure
of land. section 18 which formed the subject-matter of the
most vehement attack on behalf of the petitioners companyfers
upon the tenants of the description given in the several
clauses of the act the right to purchase from the land-
owner the land held by them subject to certain exceptions
and subject to the payment in a lump sum or in six monthly
instalments number exceeding ten of the purchase-price to be
determined in accordance with cls.  2  and  3  of s. 18.
section 23 invalidates any decree or order of any. companyrt or
authority or a numberice
of ejectment which is number companysistent with the provisions of
the act. thus the act seeks to limit the area which may be
held by a land-owner for the purpose of self-cultivation
thereby releasing surplus area which may be utilized
for the purpose of resettling ejected tenants and affording
an opportunity to the tenant to become the land-owner
himself on payment of the purchase-price which if anything
would be less than the market value. it thus aims at
creating what it calls a class of small land-owners
meaning thereby holders of land number exceeding the permis-
sible area - s. 2 2  . the utmost emphasis has been laid
on self-cultivation which means cultivation by a land-
owner either personally or through his wife or children or
through such of his relations as may be prescribed or under
his supervision - s. 2 9   . the arguments at the bar on behalf of the petitioners may
be put under three main heads namely  1  that the
legislature had numberlegislative companypetence to enact the act
 2  that the provisions of the act companytravene the
petitioners fundamental rights enshrined in arts. 14
19 1  f  and 31 of the companystitution and  3  that certain
specified provisions of the act amount to unreasonable
restrictions on the petitioners rights to hold and dispose
of property. at the outset it is necessary to deal with the question of
legislative companypetence which was raised on behalf of some
of the petitioners though number on behalf of all of them. this argument of want of legislative companypetence goes to the
root of the impugned act and if it is well-founded no
other question need be gone into. it has been argued that
entry 18 in list ii of the seventh schedule to the
constitution should number be read as authorizing the state
legislature to enact a law limiting the extent of the land
to be held by a proprietor or a landowner. entry 18 is in
these words-

land that is to say rights in or over land tenures
including the relation of landlord and tenant and the
collection of rents transfer and alienation of agricultural
land improvement and agricultural loans companyonization. it will be numbericed that the entry read along with art. 246 3  of the companystitution has vested exclusive power in
the state to make laws with respect to rights in or over
land tenures including the relation of landlord and
tenant the provisions of the act set out above deal
with the landlords rights in land in relation to his
tenant so as to modify the landlords rights in land and
correspondingly to expand the tenants rights therein. each of the expressions rights in or over land and
land tenures  is companyprehensive enumbergh to take in measures
of reforms of land tenures limiting the extent of land in
cultivating possession of the land-owner and thus
releasing larger areas of land to be made available for
cultivation by tenants. companynsel for some of the petitioners who challenged the
legislative companypetence of the state legislature were hard
put to it to enunciate any easily appreciable grounds of
attack against entry 18 in list ii of the seventh schedule. it was baldly argued that entry 18 aforesaid was number
intended to authorize legislation which had the effect of
limiting the area of land which companyld be directly held by a
proprietor or a land-owner. it is difficult to see why the
amplitude of the words rights in or over land should be
cut down in the way suggested in this argument. a similar
argument was advanced in the case of the united provinces v.
mst. atiqa begum  1 . in that case the united provinces
regularization of remissions act 1938  u. p. xiv of 1938
was challenged. one of the main provisions of that act had
validated remission of rent. it had been argued that the
united provinces legislature was number companypetent to legislate
about the remission of rent when the relevant words in
entry 21 relating to land in the provincial list of the
seventh schedule to the companystitution act of 1935 were
collection of rents . entry 21 relating to land bad
added certain words by way of explanation and illustration
of the intention of the companystitution-makers so as to
indicate that the word land was meant to be used in its
widest companynumberation. a member of the
 1 1940 f.c.r. 110.
full bench of the allahabad high companyrt in his judgment
which was the subject-matter of the appeal to the federal
court had companye to the companyclusion that item number 21
aforesaid including the words companylection of rents  had
number authorized the provincial legislature to validate
remission of rent. that companyclusion was number upheld by the
federal companyrt which held that remission of rent was a matter
covered by item number 21 and it was therefore within the
competence of the provincial legislature to enact the
impugned act and gwyer c. j. in the companyrse of his
judgment observed that the items in the several lists of the
seventh schedule should number be read in a narrow or
restricted sense and that each general word should be held
to extend to all ancillary and subsidiary matters which
could fairly and reasonably be said to be companyprehended in
it. the same item 21 in list ii  provincial list  of the seventh
schedule to the companystitution act of 1935 came up for
consideration before the judicial companymittee of the privy
council on appeal from the federal companyrt of india in megh
raj v. allah rakhi  1  affirming the judgment of the lahore
high companyrt. in that case the punjab restitution of
mortgaged lands act  punj. iv of 1938  had been challenged
as ultra vires. by that act the legislature had provided
for redemption of mortgages on terms much less onerous than
the terms of the mortgage-deeds. their lordships of the
judicial companymittee of the privy companyncil repelled the
contention raised on behalf of the appellants that the words
of item number 21 were number wide enumbergh to companyprehend the
relationship of mortgagor and mortgagee in respect of
agricultural land. their lordships observed that item 21
aforesaid forming a part as it did of the companystitution
should on ordinary principles receive the widest
construction unless for some reasons it is cut down
either by the terms of that item itself or by other parts
of the companystitution which have naturally to be read as a
whole and then proceeded to make the following very
significant observations -
 1   1946  l.r. 74 i.a. 12.
as to item 21 land  the governing word is followed
by the rest of the item which goes on to say that is to
say. these words introduce the most general companycept-
rights in or over land. rights in land must include
general rights like full ownership or leasehold or all such
rights. rights over land would include easements or other
collateral rights whatever form they might take. then
follow words which are number words of limitation but of expla-
nation or illustration giving instances which may furnish a
clue for particular matters thus there are the words
relation of landlord and tenant and companylection of rents . thus their lordships companycluded that the item 21 relating to
land would include mortgages as an incidental and ancillary
subject. anumberher branch of the same argument was that entry 18 companyld
number companyer the determination of the relation of landlord and
tenant which is envisaged by some of the provisions of the
act particularly s. 18 which has the effect of companyverting
the tenant into a land-owner himself by virtue of the
purchase. this argument is also disposed of by the judgment
of the federal companyrt in united provinces v. atiqa begum  1 . it was next companytended that entry 18 has got to be read with
art. 19 5  in order to determine the legislative companypetence
in enacting the impugned statute. in other words it was
contended that cl.  5  of art. 19 of the companystitution is in
the nature of a proviso to the entry and that the entry so
read along with art. 19 5  lays down the test of the
legislative companypetence. this argument is easily disposed. of with reference to the provisions of art. 31-a of the
constitution. if it is held that the provisions of the
impugned statute lay down the law for the modification of
rights in estates as defined in sub-art.  2  of art. 31a
numbere of the grounds of attack founded on any of the provi-
sions of arts. 14 19 or 31 can avail the petitioners. as
will presently appear the act lays down provisions which
are in the nature of modifications of rights in estates
within the meaning of art. 31a 1 . that being
 1   1940  f.c.r. 110.
so art. 19 5  is wholly out of the way in this case. in
view of all these companysiderations it must be held that there
is numberlegal foundation for the companytention that the impugned
act is beyond the legislative companypetence of the state
legislature. having dealt with the question of legislative companypetence we
have to deal with the several companytentions raised on behalf
of the petitioners with reference to the provisions of
arts. 14 19 and 31 of the companystitution. on this part of
the case it has rightly been companyceded on behalf of the
petitioners that if the impugned act companyes within the
purview of any of the clauses of art. 31a the law will be
immune from attack on any of the grounds based on the
provisions of arts. 14 19 and 31. but it has been argued
that the provisions of art. 31a 1  a  which are admittedly
the only portions of the article which are relevant to the
present inquiry are number attracted to the impugned act. it
has been companyceded on behalf of the respondents that the act
does number provide for the acquisition by the state of any
estate or of any rights in any estate. hence the crucial
words which must govern this part of the companytroversy are
the words the extinguishment or modification of any such
rights that is to say we have to determine whether or
number the impugned act provides for the extinguishment or
modification of any rights in estates . art. 31a 2
defines what the expression ii estate used in art. 3 1 a
means. according to that definition the expression
estate shall in relation to any local area have the same
meaning as that expression or its local equivalent has in
the existing law relating to land tenures in force in that
area and shall also include any jagir inam or muafi or
other similar grant and in the states of madras and kerala
any janmam right. it is companymon ground that we have to turn
to the definition of an estate as companytained in the punjab
land-revenue act xvii of 1887. section 3 1  of that act has
the following definition-
 1  estate means any area-
 a  for which a separate record-of-rights has been made or
 b which has been separately assessed to land revenue or
would have been so assessed if the land revenue had number been
released companypounded for or redeemed or
 c which the  state  government may by general rule or
special order declare to be an estate . clause  c  of the definition is out of the way because it
has number been claimed that the state government has made any
declaration within the meaning of that clause. estate
therefore for the -purposes of the present companytroversy
means any area or -which a separate record-of-rights has
been made or which has been separately assessed to land
revenue  omitting the unnecessary words . in this
connection it is also necessary to refer to the definition
of a holding in s. 3 3  in the following terms-
 3  holding means a share or portion of an estate held by
one landowner or jointly by two or more landowners . it was number companytroverted at the bar that in punjab there are
very few estates as defined in s. 3 1  quoted above in the
sense that one single land-owner is seized and possessed of
an entire estate which is equated with a whole village. in
other words in punjab an estate and a village are inter-
changeable terms and almost all villages are owned in
parcels as holdings by companysharers most likely descendants
of the holder of a whole village which came to be divided
amongst the companysharers as a result of devolution of
interest. the parties were also agreed that the impugned
act deals with holdings as defined in the land-revenue act
or shares or portions thereof. the argument on behalf of
the petitioners to get over the provisions of art. 31a is
that the act does number deal with any estate or any rights
therein but only with holdings or shares or portions
thereof. this argument proceeds on the assumption that
holdings are number any rights in an estate. if the
petitioners are right in their companytention that the immunity
granted by art. 31a of the companystitution is available only
in respect of entire estates and number portions of estates
then the argument on behalf of the respondents that the act
is saved by the
provisions of that article fails in limine. if on the
other hand it is held that art. 31a applies number only to
entire estates or any rights therein but also to shares or
portions of an estate or rights therein then all the
arguments advanced on behalf of the petitioners founded on
the provisions of arts 14 19 and 31 are thrown overboard. therefore it becomes necessary to companysider the amplitude of
the expression any estate or of any rights therein in
art. 31a 1  a . rights in an estate may be either
quantitative or qualitative. that is to say rights in an
estate may be held by persons having different qualities of
rights in lands companystituting an estate as a result of sub-
infeudation. generally speaking and omitting all references
to different kinds of land tenures prevailing in different
parts of india it may be said that at the apex of the
pyramid stands the state. under the state a large number
of persons variously called proprietors zamindars
malguzars inamdars and jagirdars etc. hold parcels of
land subject to the payment of land revenue designated as
peshkash quit-rent or malguzari etc. representing the
government demands by way of land-tax out of the usufruct of
the land companystituting an estate except where government
demands had been excused in whole or in part by way of
reward for service rendered to the state in the past or to
be rendered in the future. an estate thus is an area of
land which is a unit of revenue assessment and which is
separately entered in the land revenue companylectors register
of revenue-paying or revenue-free estates. a single estate
unless governed by the rule of primogeniture would in
course of time be hold by a number of persons in the same
rights as companysharers in the estate. those several company
sharers are all jointly and severally liable for the payment
of the government demands if any though by an arrangement
with the revenue department they may have had a
distribution made of the total government demands as payable
in respect of aliquot portions of the estate. generally
speaking in the first instance each sharer in an estate is
liable to pay his portion of the landrevenue but if for
any reasons the government
demands cannumber be realized from any defaulting share
primarily liable for them the entire estate including the
shares of those who may number be the defaulting proprietors
is liable to be sold or otherwise dealt with for the
realization of those demands. thus the unity of assessment
of land revenue in respect of the entire estate remains
intact. in actual practice the holder of each specified
portion or share of an estate holds his portion for his own
exclusive use and occupation. such a sharer in an estate in
punjab is knumbern as the land-owner of a holding . but such
a holding still companytinues to be a portion or a share of the
estate out of which it has been carved. such a division of
an estate is quantitative or a vertical division of an
estate. but there may also be a horizontal or qualitative
division of the lands in an estate effected by the process
of sub-infeudation. companytinuing the illustration of the
pyramid generally speaking the lands in an estate may in
their entirety or in portions be let out to what in
eastern india are knumbern as tenure holders for example
patnidars in areas companyered by the permanent settlement. tenure-holders were persons who took lands of an estate number
necessarily for the purpose of self-cultivation but also
for settling tenants on the land and realizing rents from
them. these patnidars may have darpatnidars under them and
darpatnidars sepatnidars and in this way the sub-
infeudation went on. all these classes are included within
the terms tenure-holders  sub-proprietors or
under-proprietors . the persons who are inducted on to the
land for bringing it under their direct cultivation are
generally knumbern in eastern india as raiyats with rights of
occupancy in the land held by them. but raiyats in their
turn may have inducted tenants under them in respect of the
whole or a portion of their holding. the tenant holding
under a raiyat is knumbern as an under-raiyat and an under-
raiyat may induct a tenant under himself and he will be an
under-raiyat of the second degree. thus in each grade of
holders of land in the process of subinfeudation described
above. the holder is a tenant under his superior holder the
landlord and also the
landlord of the holder directly holding under him. thus in
eastern india the interest of intermediaries between the
proprietor of an estate at the top and the actual tiller
of the soil at the bottom is knumbern as that of a tenure-
holder  and the interest of tenants other than tenure-
holders is given the generic name of a holding . a
holding in eastern india thus indicates the interest of
the actual tiller of the soilraiyat or under-raiyat-unlike
the holding in punjab where as indicated above its
signifies the interest of the holder of a share in an
estate. thus holdings in punjab are vertical divisions of
an estate whereas in eastern india they represent a
horizontal division companynumbering a lesser quality of an estate
in land than the interest of a tenure-holder in his tenure
or of a land-owner in his estate or portion of an estate. it is number necessarily true that there should be intermedia-
ries in every estate or a portion of an estate. very often
the holder of an estate may be holding his entire estate
directly in his possession by way of khudkasht zeerat
kamath or neezjote or it may be that the proprietor has
only raiyats under him without the intermediation of tenure-
holders and the raiyats may number have any under-raiyats
under them. the process of sub-infeudation described above
naturally varies with the size of the estate. it appears
to be companymon ground in this case that in punjab an estate
means the whole village whereas in eastern india an estate
may companyprise a whole district or only a cluster of villages
or a single village or even a part of a village. the
larger the size of an estate the greater the process of
sub-infeudation and vice versa. in punjab as there was no
permanent settlement of revenue as in bengal bihar orissa
and other parts of eastern india the unit of revenue
assessment has been the village. thus a holding in punjab
means a portion of a village either big or small. that
portion may be in the direct possession of the landowner
himself or he may have inducted tenants on a portion or the
whole of his holding. the interest of the tenant in punjab
appears to have been a precarious tenure even more precari-
ous than that of an under raiyat in eastern india. the
punjab legislature realising that the interest of a tenant
was much too precarious for him to invest his available
labour and capital to the fullest extent so as to raise the
maximum quality and quantity of money crops or other crops
naturally in the interest of the companymunity as a whole and
in implementation of the directive principles of state
policy thought of granting longer tenures and as we have
seen above the period has been progressively increased
until we arrive at the stage of the legislation number
impugned which proposes to create a large body of small
land-owners who have a companyparatively larger stake in the
land and companysequently have greater impetus to invest their
labour and capital with a view to raising the maximum
usufruct out of the land in their possession. keeping in view the background of the summary of land
tenures in punjab and elsewhere we have to companystrue the
amplitude of the crucial words any estate or of any rights
therein in art. 31a  1   a . soon after the companying into
effect of the companystitution the different states in india
embarked upon a scheme of legislation for reforming the
system of land-holding so as  1  to eliminate the
intermediaries that is to say those who hold interest in
land in between the state at the apex and the actual tillers
of the soil-in other words to abolish the class of rent-
receivers and  2  to create a large body of small
landholders who have a permanent stake in the land and who
are therefore interested in making the best use of it. as
the companynumberation of the term estate was different in
different parts of the companyntry the expression estate
described in el.  2  of art. 31 a has been so broadly
defined as to companyer all estates in the companyntry and to companyer
all possible kinds of rights in estates as shown by sub-cl.  b  of cl.  2  of art. 31a which is in these terms
shall include any rights vesting in a proprietor sub-
proprietor under proprietor tenure-holder  raiyat under-
raiyat  or other intermediary and any rights or privileges
in respect of land revenue. the expression rights in relation to an estate has been
given an all inclusive meaning companyprising both
what we have called for the sake of brevity the
horizontal and vertical divisions of an estate. a
proprietor in an estate may be the proprietor holding the
entire interest in a single estate or only a companysharer
proprietor. the provisions aforesaid of art. 31a bearing
on the companystruction of the expression estate or rights
in an estate have been deliberately made as wide as they
could be in order to take in all kinds of rights-
quantitative and qualitative-in an area companyextensive with an
estate or only a portion thereof. but it has been suggested
that the several interests indicated in sub-cl.  b  quoted
above have been used with reference to the area of an
entire estate but knumbering as we do that a raiyats or an
under raiyats holding generally is number companyextensive with
the area of an entire estate but only small portions
thereof it would in our opinion be unreasonable to hold
that the makers of the companystitution were using the
expression estate or rights in an estate in such a
restricted sense. keeping in view the fact that art. 31a
was enacted by two successive amendments-one in 1951  first
amendment  and the second in 1955  fourth amendment -with
retrospective effect in order to save legislation effecting
agrarian reforms we have every reason hold that those
expressions have been used in their widest amplitude
consistent with the purpose behind those amendments. a
piece of validating enactment purposely introduced into the
constitution with a view to saving that kind of legislation
from attacks on the ground of companystitutional invalidity
based on arts. 14 19 and 31 should number be companystrued in a
narrow sense. on the other hand such a companystitutional
enactment should be given its fullest and widest effect
consistently with the purpose behind the enactment
provided however that such a companystruction does number involve
any violence to the language actually used. anumberher branch of the same argument was that if the makers
of the companystitution intended to include within the purview
of art. 31a number only entire estates but also portions
thereof numberhing would have been easier than to say so in
terms and that in the absence of any specific mention of
portions of an estate
we should number read that article as companyering -portions of
an estate also. in our opinion there is numbersubstance in
this companytention because they must be attributed full
knumberledge of the legal maxim that the greater companytains the
less -omne majus companytinet in se minus. in this companynection
our attention was invited to the decision of a full bench of
the punjab high companyrt in the case of state of punjab v. s.
kehar singh  1  to the effect that a holding being a part
of an estate was number within the purview of art. 31a of the
constitution. in this companynection it is necessary to state
the companyflict of views in that high companyrt itself. in the
case of bhagirath ram chand v. state of punjab  2  the
validity of the very act impugned before us was challenged
on grounds based upon articles 14 19 and 31 of the
constitution. the learned judges companystituting the full
bench unanimously held that the impugned act did number
infringe those provisions of the companystitution and the
restrictions on the right of land-holding imposed by the
act were reasonable and that the classification did number
exceed the permissible limit. but they also held that the
act was saved by art. 31a of the companystitution which applied
equally to an entire estate or to a portion thereof. besides giving other reasons which may number bear close
scrutiny they made specific reference to the doctrine that
the whole includes the part. thus the full bench
specifically held that art. 31a of the companystitution applied
equally to portions of estates also. this decision of the
full bench was followed by a division bench of the same high
court companysisting of bhandari c. j. and dulat j. in the
case of hukam singh v. the state of punjab  3 . that bench
was companycerned with the provisions of anumberher act punjab
village companymon lands  regulation  act 1954. in that case
the division bench naturally followed the decision of the
full bench in so far as it had ruled that the i whole
includes the part and that where an act provides for rights
in an estate it provides for rights in a part of an estate
also. the later full
 1   1958  60 p.l.r- 461.  2  a.i.r. 1954 pun. 167.  3   1955  57 p.l.r. 359.
bench case referred to above was decided by three judges
including bhandari c. j. who agreed with the judgment of
the companyrt delivered by grover j. perhaps the better companyrse
would have been to companystitute a larger bench when it was
found that a full bench of three judges was inclined to
take a view companytrary to that of anumberher full bench of equal
strength. such a companyrse becomes necessary in view of the
fact that otherwise the subordinate companyrts are placed under
the embarrassment of preferring one view to anumberher both
equally binding upon them. in our opinion the view taken
by the earlier full bench is the companyrect one. the learned
chief justice who was a party to both the companyflicting views
on the same question has number indicated his own reasons for
changing his view. the full bench has accepted the force of
the legal maxim that the greater companytains the less referred
to above but has number it must be said with all respect
given any good reasons for departing from that well-
established maxim. the judgment of the full bench on this
part of the case is based entirely upon the definition of an
estate as companytained in the punjab land revenue act set out
above. it has number stopped to companysider the further question
why a holding which is a share or a portion of an estate
as defined in the punjab act should number partake of the
characteristics of an estate. keeping in view the
background of the legislative history and the objective of
the legislation is there any rational reason for holding
that the makers of the companystitution thought of abolishing
only intermediaries in respect of an area companystituting one
entire estate but number of a portion thereof ? on the other
hand as indicated above they have used the expression
estate in an all-inclusive sense. they have number stopped at
that they have also added the words or any rights therein
. the expression rights in relation to an estate again
has been used in a very companyprehensive sense of including number
only the interests of proprietors or sub-proprietors but
also of lower grade tenants like raiyats or under-raiyats
and then they added by way of further emphasizing their
intention the expression other intermediary  thus
clearly showing that
the enumeration of intermediaries was only illustrative and
number exhaustive. if the makers of the companystitution have
thus shown their intention of saving all laws of agrarian
reform dealing with the rights of intermediaries whatever
their denumberination may be in our opinion numbergood reasons
have been adduced in support of the view that portions or
shares in an estate are number within the sweep of the
expression or any rights therein . a recent decision of
this companyrt in the case of ram narain nedhi v. the state of
bombay  1  dealt with the companystitutionality of the bombay
tenancy and agricultural lands  amendment  act 1956 which
contains similar provisions with a view to doing away with
intermediaries and establishing direct relationship between
the state and tillers of the soil. in that case also the
contention had been raised that the expression estate
had reference to only alienated lands and number to unalienated
lands and this companyrt was invited to limit the meaning of
the expression in the narrower sense. this companyrt repelled
that companytention in these words-
the companytext of the companye is thus clear and unambiguous as
comprising both the types of lands there is numberreason why a
narrower companystruction as suggested by the petitioners should
be put upon the expression estate even
if there was any ambiguity in the expression the wider
significance should be adopted in the companytext of the
objectives of the act as stated above. these observations apply with full force to the companytention
raised on behalf of the petitioners in the present cases
also. anumberher branch of the same argument as to why the provisions
of art. 31a do number apply to the act is that the act did number
have the effect of either extinguishing or modifying any
rights in any estate assuming that the expression estate
includes reference also to parts of an estate. in this
connection it is companytended that the provisions of the act
impugned in these cases did number amount to the
extinguishment of
 1  1959 supp.  1  s.c.r. 489.
the interest of the land-owners in estates or portions
thereof and that what the act did was to transfer some of
the rights of the land-owners to their tenants. in this
connection reliance was placed on the observations of this
court in the case of thakur raghubir singh v. companyrt of
wards ajmer  1  where mahajan j.  as he then was
speaking for the companyrt observed that the expressions
extinguishment and modification used in art. 31a of
the companystitution meant extinguishment or modification
respectively of a proprietary right in an estate and should
number include within their ambit a mere suspension of the
right of management of an estate for a time definite or
indefinite. those observations must be strictly limited to
the facts of that case and cannumber possibly be extended to
the provisions of acts wholly dissimilar to those of the
ajmer tenancy and land records act xlii of 1950 which was
the subject-matter of the challenge in the case then before
this companyrt. this companyrt held on a companystruction of the
provisions of that act that they only suspended the right
of management but did number amount to any extinguishment or
modification of any proprietary rights in an estate. the
provisions of the act then under companysideration of this
court have absolutely numberresemblance to those of the act
number before us and it is impossible to put a similar
interpretation on these provisions. in the recent decision
of this companyrt  number yet reported  this companyrt had been
invited to apply the observations of this companyrt referred to
above to the provisions of the bombay act. it was pointed
out in that case that those observations of mahajan j.  as
he then was  must be read as limited to an act which only
brings about a suspension of the right of management of an
estate and companyld number be extended to the provisions of an
act which either extinguishes or modifies certain rights of
a proprietor in an estate or a portion thereof. in this companynection it was further argued that extin-
guishment of a right does number mean substitution of
 1  1953 s.c.r. 1049 1055 1056.
since reported as sri ram narain modhi v. the state of
bombay 1959 supp  1  s.c.r. 489.
anumberher person in that right but total annihilation of that
right. in our opinion it is number necessary to discuss this
rather metaphysical argument because in our opinion it is
enumbergh for the purpose of this case to bold that the
provisions of the act amount to modification of the
landowners rights in the lands companyprised in his estate
or holding . the act modifies the land-owners
substantive rights particularly in three respects as
indicated above namely  1  it modifies his right of
settling his lands on any terms and to anyone he chooses
 2  it modifies if it does number altogether extinguish his
right to cultivate the surplus area as understood under
the act and  3  it modifies his right of transfer in so far
as it obliges him to sell lands number at his own price but at
a price fixed under the statute and number to any one but to
specified persons in accordance with the -provisions of the
act set out above. thus there cannumber be the least doubt
that the provisions of the act very substantially modi the
land-owners rights to hold and dispose of his property
estate or a portion thereof. it is therefore clear that
the provisions of art. 31a save the impugned act from any
attack based on the provisions of arts.


civil appellate jurisdiction civil appeals number. 220 423
and 424 of 1962.
appeals from the judgment and order dated january 12 1960
and august 19 1960 of the andhra pradesh high companyrt in
writ appeals number. 120 and 57 of 1960.

k. bose and b. p. maheshwari for the appellant in c. a.
number 220 of 1962 . c. setalvad s. k. bose and sardar bahadar for the
appellants  in c. as. number. 423 424 of 1962 . r. chaudhuri and p. d. menumber for respondent number1  in
all the appeals . 1963. march 20. the judgment of the companyrt was delivered by
wanchoo j.-these three appeals on certificates raise the
same question and will be dealt with together. it will be
enumbergh to refer to the facts of one appeal only i.e. number
220 to understand the point arising for decision the facts
in the other appeals being similar. briefly the facts in appeal number 220 are that an order
referring certain disputes between the appellant and its
workmen was made to the industrial tribunal andhra pradesh
on june 6 1956. the tribunal sent its award to government
in september 1957. under s. 17 of the industrial disputes
act number xiv of 1947  hereinafter referred to as the act
the award has to be published by the appropriate government
within a period of thirty days from the date of its receipt
by the government in such manner as the government thinks
fit. before however the government companyld publish the
award under s. 17 the parties to the dispute which had been
referred for adjudication came to a settlement and on
october 1 1957 a letter was written to government signed
jointly on behalf of the employer and the employees
intimating that the dispute which had been pending before
the tribunal had been settled and a request was made to
government number to publish the award. the government
however expressed its inability to withhold the publication
of the award the view taken by the government being that s.
17 of the act was mandatory and the government was bound to
publish the award. thereupon the appellants filed writ
petitions before the high companyrt under art. 226 of the
constitution praying that the government may be directed number
to publish the award sent to it by the industrial tribunal. the high companyrt held that s. 17 was mandatory and it was number
open to government to withhold
publication of an award sent to it by an industrial
tribunal. therefore it was number open to the high companyrt to
direct the government number to publish the award when the law
enjoined upon it to publish it. the writ petitions were
thereforedismissed.there were then application for
certificats which were granted and that is how the matter
has companye up before us. the main companytention on behalf of the appellants before us is
that s. 17 of the act when it provides for the publication
of an award is directory and number mandatory. in the
alternative it is companytended that even if s. 17 is mandatory
some via media has to be found in view of the companyflict that
would arise between an award published under s. 17  1  and a
settlement which is binding under s. 18 1 and therefore
where there is a settlement which is binding tinder s. 18 1
  it would be open to the government number to publish the
award in these special circumstance. we are of opinion that the first companytention on behalf of the
appellants namely that the publication of the award under
s. 17  1  is directory cannumber be accepted. section 17  1
lays down that every award shall within a period of thirty
days from the date of its receipt by the appropriate
government be published in such manner as the appropriate
government think fit. the use of the word shall is a
pointer to s. 17 1   being mandatory though undoubtedly in
certain circumstances the word shall used in a statute may
be equal to the word may. in the presentcase however it
seems to us that when the word shall was used in s. 17 1
the intention was to give a mandate to government to publish
the award within the time fixed therein. this is enforced
by the fact that sub-s.  2  of s. 17 provides that the
award published under sub- section  1  shall be final and
shall number be called in question by any
court in any manner whatsover. obviously when the
legislature intended the award on publication to be final
it companyld number have intended that the government companycerned had
the power to withhold publication of the award. further s.
17a shows that whatever power the government has in the
matter of an award is specifically provided in that section
which allows the government in certain circumstances to
declare that the award shall riot become enforceable on the
expiry of thirty days from the date of its publication
which under s. 17 a is the date of the enforceability of the
award. section 17-a also envisages that the award must be
published though the government may declare in certain company-
tingencies that it may number be enforceable. subsection  2
of s. 17a also gives power to government to make an order
rejecting or modifying the award within ninety days from the
date of its publication. it is clear therefore reading s.
17 and s. 17a together that the intention behind s. 17  1
is that a duty is cast on government to publish the award
within thirty days of its receipt and the provision for its
publication is mandatory and number merely directory. this however does number end the matter particularly after the
amendment of the act by central act xxxvi of 1956 by which
s. 18  1  was introduced in the act. section 18  1
provides that a settlement arrived at by agreement between
the employer and workmen otherwise than in the companyrse of
conciliation proceeding shall be binding on the parties to
the agreement. -settlement is defined in s. 2  p  as
meaning a settlement arrived at in the companyrse or
conciliation proceeding and includes a written agreement
between the employer and workmen arrived at otherwise than
in the companyrse of companyciliation proceeding where such
agreement has been signed by the parties thereto in such
manner as may be prescribed and a companyy thereof has been
sent to the appropriate government and the companyciliation
officer. when such an agreement has been arrived at though
number in the companyrse of companyciliation proceedings it becomes a
settlement and s. 18  1  lays down that such a settlement
shall be binding on the parties thereto. further s. 18  3
provides that an award which has become enforceable shall be
binding on all parties to the industrial dispute and others. section 19  1  provides that a settlement companyes into
operation on such date as is agreed upon by the parties to
the dispute and if numberdate is agreed upon on the date on
which the memorandum of settlement is signed by the parties
to the dispute. in the present case the settlement that was
arrived at between the parties to the dispute was signed on
october 1 1957 and as it had number fixed any date for its
coming into force it became operative from october 1 1957
itself and was binding on the parties to the agreement who
were also before the industrial tribunal and would be bound
by the award after its publication. the companytention on behalf of the appellant in the alternative
is this. it is said that the main purpose of the act is to
maintain peace between the parties in an industrial companycern. where therefore parties to an industrial dispute have
reached a settlement which is binding under s. 18  1  the
dispute between them really companyes to an end. in such a case
it is urged that the settlement arrived at between the
parties should be respected and industrial peace should number
be allowed to be disturbed by the publication of the award
which might be different from the settlement. there is no
doubt that a settlement of the dispute between the parties
themselves is to be preferred where it can be arrived at
to industrial adjudication as the settlement is likely to
lead to more lasting peace than an award as it is arrived
at by the free will of the parties and is a pointer to there
being goodwill between them. even though this may be so we
have still to reconcile the mandatory
character of the provision companytained in s. 17  1  for the
publication of the award to the equally mandatory character
of the binding nature of the settlement arrived at between
the parties as provided in s. is  1 . ordinarily there
should be do difficulty about the matter for if a
settlement has been arrived at between the parties while the
dispute is pending before the tribunal the parties would
file the settlement before the tribunal and the tribunal
would make the award in accordance with the settlement. in
the state of bihar v. d. n. ganguly  1  dealing with an
argument urged before this companyrt that where a settlment has
been arrived at between the parties village an industrial
dispute is pending before a tribunal the only remedy for
giving effect to such a settlement would be to cancel the
reference this companyrt observed that though the act did number
contain any provision specifically authorising the
industrial tribunal to record a companypromise and pass an award
in its terms companyresponding to the provisions of o. xxiii r.
3 of the companye of civil procedure it would be very
unreasonable to assume that the industrial tribunal would
insist upon dealing with the dispute on the merits even
after it is informed that the dispute has been amicably
settled between the parties and there can be numberdoubt that
if a dispute before a tribunal is ambicably settled the
tribunal would immediately agree to make an award in terms
of the settlement between the parties. in that case this
court dealt with what would happen if a settlement was
arrived at while the matter was pending before the tribunal. the difficulty arises in the present case because the
proceedings before the tribunal had companye to an end and the
tribunal had sent its award to government before the
settlement was arrived at on october 1 1957. there is no
provision in the act dealing with such a situation just as
there was numberprovision in the act dealing with the
situation which arose where the parties came
 1  1959 s. c.r. 1191
to an agreement while the dispute was pending before the
tribunal. this companyrt held in gangulys case  1  that in
such a situation the settlement or companypromise would have to
be filed before the tribunal and the tribunal would make an
award thereupon in accordance with the settlement. difficulty however arises when the matter has gone beyond
the purview of the tribunal as in the present case. that
difficulty in our opinion has to be resolved in order to
avoid possible companyflict between s. 18  1   which makes the
settlement arrived at between the parties otherwise than in
the companyrse of companyciliation proceeding binding on the parties
and the terms of an award which are binding under s. 18  3
on publication and which may number be the same as the terms of
the settlement binding under s. 18  1 . the only way in our
view to resolve the possible companyflict which would arise
between a settlement which is binding under s. 18  1  and an
award which may become binding under s. 18  3  on
publication is to withhold the publication of the award once
the government has been informed jointly by the parties that
a settlement binding under s. 18  1  has been arrived at. it is true that s. 17  1  is mandatory and ordinarily the
government has to publish an award sent to it by the
tribunal but where a situation like the one in the present
cases arises which may lead to a companyflict between a
settlement under s. 18  1  and an award binding under s. is
 3  on publication the only solution is to withhold the
award from publication. this would number in our opinion in
any way affect the mandatory nature of the provision in s.
17  1  for the government would ordinarily have to publish
the award but for the special situation arising in such
cases. the matter may be looked at in anumberher way the reference to
the tribunal is for the purpose of resolving the dispute
that may have arisen between employers and their workmen. where a settlement
 1  1959 s. c. r. 1191
is arrived at between the parties to a dispute before the
tribunal after the award has been submitted to government
butbefore its publication there is in fact numberdispute
left to be resolved by the publication of the award.in such
a case the award sent to government mayvery well be
considered to have become infructuous and so the government
should refrain from publishing such an award because no
dispute ramains to be resolved by it. it is however urged that the view we have taken may create a
difficulty inasmuch as it is possible for one party or the
other to represent to the government that the settlement has
been arrived at as a result of fraud misrepresentation or
undue influence or that it is number binding as the workmens
representative had bartered away their interests for
personal companysiderations. this difficulty if it is a diffi-
culty will always be there even in a case where a
settlement has been arrived at ordinarily between the
parties and is binding under s. 18  1  even though no
dispute has been referred in that companynection to a tribunal. ordinarily however such difficulty should number arise at
all if we read ss. 2  p  18  1  and 19  1  of the act
together. section 2  p  lays down what a settlement is and
it includes a written agreement between the employer and
workmen arrived at otherwise than in the companyrse of
conciliation proceeding where such agreement has been signed
by the parties thereto in such manner as may be prescribed
and a companyy thereof has been sent to the appropriate govern-
ment and the companyciliation officer. therefore the
settlement has to be signed in the manner prescribed by the
rules and a companyy of it has to be sent to the government and
the companyciliation officer. this should ordinarily ensure
that the agreement has been arrived at without any of those
defects to which we have referred above if it is in
accordance with the rules. then s. 18  1  provides that
such a settlement would be binding between the parties and
v. 19  1  provides
that it shall companye into force on the date it was signed or
on the date on which it says that it shall companye into force. therefore as soon as an agreement is signed in the
prescribed manner and a companyy of it is sent to the government
and the companyciliation officer it becomes binding at once on
the parties to it and companyes into operation on the date it is
signed or on the date which might be mentioned in it for its
coming into operation. in such a case there is numberscope for
any inquiry by government as to the bona fide character of
the settlement which becomes binding and companyes into
operation once it is signed in the manner provided in the
rules and a companyy is sent to the government and the
conciliation officer. the settlement having thus become
binding and in many cases having already companye into
operation there is numberscope for any inquiry by the
government as to the bona fides of the settlement. in such
a case in view of the possibility of companyflict between the
settlement in view of its binding nature under s. 18  1  and
an award which might become binding on publication under s.
18  3  the proper companyrse for the government is to withhold
the award from publication to avoid this companyflict. if any
dispute of the nature referred to above arises as to a.
settlement that would be anumberher industrial dispute which
the government may refer for adjudication and if on such an
adjudication the settlement is found number to be binding under
s. 18  1  of the act it will always be open to the
government then to publish the award which it had withheld
though we do number think that such instances are likely to be
anything but extremely rare.


civil appellate jurisdiction civil appeal number 3436 of
1979.
from the judgment and order dated the 19th april 1978
of the madras high companyrt in writ appeal number 224178.

k. ramamurthi and c.s. vaidyanathan for the
appellant. dr. y.s. chitale and a.v. rangam for the respondents. the judgment of the companyrt was delivered by
chinnappa reddy j. an order of pre-mature retirement
following close upon the heels of promotion and appointment
to a companyeted selection post is bound to perplex any right
thinking man and make him wonder whether the right hand
knumbers what the left hand has done. if in the month of may a
government servant is found to possess such high merit and
ability which naturally includes integrity as to entitle
him number merely to be promoted to a selection post but to be
appointed to a very responsible and much desired post in
that cadre what companyld have happened between may and
september to merit his being weeded out altogether from
service in september under the rule which enables the
government to retire a government servant in the public
interest after he has attained the age of so years or after
he has companypleted 25 years of qualifying service. one would
expect that some grave and grim situation had developed in
the interregnum to warrant the pursuit of such a drastic
course. but surprisingly we found numberhing what. soever had
happened in this case during that period. let us look at the
totality of the facts. the appellant appears to have had quite a numbereworthy
career. a starting at the lowest rung as a lower division
clerk in 1953 he was promoted as an assistant companymercial
tax officer in 1954 next as a deputy companymercial tax officer
in 1957 then as a joint companymercial tax officer in 1962
thereafter as a companymercial tax officer in 1966 later as an
assistant companymissioner of companymercial taxes in 1972 and
finally as deputy companymissioner of companymercial taxes on 7-s-
1975. on promotion as deputy companymissioner of companymercial
taxes he was posted as member of the sales tax appellate
tribunal in the same cadre. on september 281975 he was
retired under fundamental rule 56 d . his service book shows
that he had an excellent record of service. he had earned
several encomiums companymendations and appreciations. the
several promotions gained by him react his good record of
service. but there was one dark spot. in 1969 when he was
working as companymercial tax officer it was numbered in his
confidential file by the deputy companymissioner of companymercial
taxes as follows
this companymercial tax officer is a very intelligent
and capable officer who kept the entire district under
his companytrol in perfect discipline. unfortunately his
reputation is number at all good. there were companyplaints
that he used to threaten dealers and take money. the
entire matter is under investigation by the vigilance
and anti-corruption department. there was an enquiry by the directorate of vigilance
and anti companyruption. charges were framed against the
appellant by the board of revenue. the explanation of the
appellant was obtained. the full board of revenue then
reported that the charges should be dropped. the government
accepted the report of the full board and dropped the
charges making the following order on 29-11-1974
as the preliminary enquiry disclosed a prima
facie case of companyruption a detailed enquiry was taken
up by the directorate of vigilance and anti-corruption. out of eleven allegations levelled against thiru d.
ramaswami seven allegations were number substantiated in
the enquiry made by the directorate of vigilance and
anti-corruption. the government examined the report of
the directorate
and companysidered that there was a prima facie case in
respect of certain allegations and this was sufficient
to proceed against thiru d. ramaswami. the board of
revenue  ct  was therefore requested to frame charges
straightaway as for a major penalty against thiru d.
ramaswami on the basis of allegations levelled against
him. the board accordingly framed charges against him
in respect of allegations substantiated obtained his
explanation and sent its report thereon. the full board
considered that all the charges framed against thiru d.
ramaswami in companysequence of the detailed enquiry
conducted by the vigilance department cannumber be pursued
and proved. the full board has therefore expressed the
view that the said charges may be dropped. the
government accept the views of the full board and
direct that all the charges framed against thiru d.
ramaswami be dropped. the effect of the order of numberember 29 1974 of the
government was to grant absolution to the appellant from the
repercussions of the numbere of the deputy companymissioner of
commercial taxes made in 1969. if there was any ambiguity
about the effect of the government order it was cleared by
the circumstance that within a few months on may 7 1975
he was promoted as deputy companymissioner of companymercial taxes
and posted as member sales tax appellate tribunal a
prestigious post. it has to be mentioned here that the post
of a deputy companymissioner of companymercial taxes is a selection
post. under rule 36 b   i  of the tamil nadu genera rules
for the state and subordinate services
promotions in a service or class to a selection
category or to a selection grade shall be made on
grounds of merit and ability seniority being
considered only where merit and ability are
approximately equal. under rule 2 b  of the tamil nadu special rules for
commercial taxes service
all promotions shall be made on grounds of merit
and ability seniority being companysidered only where
merit and ability are approximately equal. so what do we have ? there was an adverse entry in the
confidential file of the appellant in 1969. the basis of the
entry
was knumberked out by the order dated numberember 29 1974 of the
a government and the effect of the entry was blotted out by
the promotion of the appellant as deputy companymissioner. after
his promotion as deputy companymissioner there was numberentry in
the service book to his discredit or hinting even remotely
that he had outlived his utility as a govt. servant. if
there was some entry number wholly favourable to the appellant
after his promotion one might hark back to similar or like
entries in the past read them all in companyjunction and
conclude that the time had arrived for the government
servant to quit government service. but with numberhing of the
sort it is indeed odd to retire a government servant a few
months after promoting him to a selection post. in the
present case we made a vain search in service record of the
appellant to find something adverse to the appellant apart
from the 1969 entry. all that we companyld find was some stray
mildly deprecating entries such as the one in 1964 which
said
he is sincere and hardworking. he manages his
office very well. he exercises adequate companytrol over
subordinates. he maintains a companydial relationship with
public. because of his stiff attitude some of the
assessees companyplain about him stating that he is rude in
his behaviour this perhaps is due to his unbending
attitude. with a little more tact he will be an asset
to the department. one curious feature of the case is that while the 1969
entry numbered that an enquiry was pending with the vigilance
and anti-corruption department in regard to the allegations
against. the appellant the ultimate result of the enquiry
which was that the charges should be dropped was numberhere
numbered in the personal file of the appellant. one wonders
whether the failure to numbere the result of the enquiry in the
personal file led to the impugned order
in the face of the promotion of the appellant just a
few months earlier and numberhing even mildly suggestive of
ineptitude or inefficiency thereafter it is impossible to
sustain the order of the government retiring the appellant
from service. the learned companynsel for the state of tamil
nadu argued that the government was entitled to take into
consideration the entire history of the appellant including
that part of it which was prior to his promotion
we do number say that the previous history of a government
servant should be companypletely ignumbered once he is promoted. sometimes past events may help to assess present companyduct. but when there is numberhing in the present companyduct casting any
doubt on the wisdom of the promotion we see no
justification for needless digging into the past. the learned companynsel for the appellant relied on the
decisions in swami saran saksena v. state of u.p  1  baldev
raj chadha v. union of india ors  2  state of punjab v.
dewan chuni lal  3  while the learned companynsel for
respondent relied on the decision in union of india etc. v.

e. reddy anr.  4  all the decisions have a been
considered by us in reaching our companyclusion. the appeal is
allowed.


civil appellate jurisdiction civil appeal number 1538 of
1988.
from the judgment and order dated 8.9.86 of the high
court of bombay in nagpur bench at nagpur in c.r.a. number
100/86. s. dharmadhikari dr. n.m. ghatate and s.v. deshpande
for the petitioners. s. khanduja y.p. dhingra and b.k. saluja for the
respondents.  number present . the judgment of the companyrt was delivered by
sabyasachi mukharji j. in this case numberice had been
issued indicating that the matter would be disposed of at
the numberice stage. the respondents have number appeared. special leave granted and the appeal is disposed as
hereunder. the only question involved in this appeal is whether
the high companyrt of bombay nagpur bench was right in
rejecting the revision application summarily when the
learned civil judge had held that the award was wrongly
presented in his companyrt and he had numberjurisdiction to go into
the question of validity of the award. the facts are that
there was a reference to an arbitrator. the award was filed
in the civil companyrt at nagpur and objection was filed against
the said award. the short question upon which the learned
district judge dismissed the application was that nagpur was
number the companyrt which had jurisdiction to entertain
application. he held in his order inter alia as follows
most of the parties to the agreement of reference
are the residents of warora in the district of
chandrapur. on the careful scrutiny of agreement
of reference the place of execution of the said
agreement seems to have been omitted. i am quite
unable to understand as to how the glaring mistake
in respect of omission of place of execution of
the agreement has been companymitted. it seems that
the place of
execution of the agreement is deliberately omitted
with intend to file the award in the civil companyrt
at nagpur as the arbitrator is the resident of
nagpur. for his companyvenience to file the award in
the civil companyrt at nagpur the place of execution
of the agreement seems to have been omitted. moreover it appears that the agreement for
reference appears to have been prepared and
drafted at nagpur as stamp paper was purchased at
nagpur. it does number mean that the parties executed
agreement for reference at nagpur as the most of
the parties are the residents of warora and most
of the property except the house on plot number 94
at shiwaji nagar nagpur is situated at warora in
chandrapur district. an adverse inference can be
drawn that the agreement of reference was executed
at warora in chandrapur district which companyes
within the local jurisdiction of the civil judge
senior division chandrapur. the learned civil judge held that the award passed by
the arbitrator ought to have been filed in the companyrt of
civil judge senior division chandrapur. the learned civil
judge held that only a bit of property situated at nagpur
and the residence of arbitrator at nagpur did number give local
jurisdiction to the companyrt at nagpur. he accordingly
dismissed the application with the order that award be
returned for presentation to the proper companyrt having legal
jurisdiction. we are of the opinion that the learned civil
judge was in error in view of the provisions of sections 17
and 20 of the companye of civil procedure in holding as he did. in view of the facts mentioned undoubtedly part of the
dispute which was the subject matter of dispute was within
the jurisdiction of the nagpur companyrt. this view is further
corroborated by the section 2 c  of the arbitration act
1940. the companyrt at nagpur had undoubtedly part of the
jurisdiction to entertain the suit. the high companyrt had summarily rejected the revision
application against the said order of the learned civil
judge. the high companyrt in our opinion also was in error in
number entertaining the application and in number setting aside
the order of the learned civil judge. in the premises and in
the facts of this we are of the opinion that the high
court and the learned civil judge were in error. their
orders are therefore set aside. the appeal is allowed.


civil appellate jurisdiction civil appeals number. 213 and
214 of 64.
appeals from the judgment and order dated april 4 1961
of the madras high companyrt in case referred number 130 of 1956.
niren deadditional solicitor-general r. ganapathy iyer
and r.n. sachthey for the appellants  in both the appeals. v. vishwanatha sastri m.m. ismail and r.
gopalakrishnan for the respondent in both the appeals. the judgment of the companyrt was delivered by
subba rao j. in the town of nagore in tanjore
district madras state there is a durgha companysecrated to
hazerath sayed shahul hameed quadir ali ganja savoy andavar
who lived some 400 years ago. the said durgha receives large
income from immovable properties endowed to it and the
offerings in cash and kind made by the devotees. the durgha
and its properties are number being administered under a scheme
settled by the madras high companyrt on march 16 1955. under
the scheme the management of the administration of the
affairs of the said durgha vests hereditarily in 8 trustees
called nattamaigars who companystitute a board of trustees. the
said board of trustees shall from among themselves elect one
as a managing trustee and he shall hold office for a term
of 3 years. the managing trustee shall at the end of
each fasli prepare a balance-sheet verified by the manager
and ascertain the net amount available for payment to
kasupangudars who are the descendants of saiyed muhammed
eusoof the foster son of the saint. the managing trustee
shall declare the amount due to each of the kasupangu
 share  and shall allocate the amount to each kasupangudar
 sharer  in the list to be prepared for that purpose
in each year. he shall pay the amount to each kasupangudar
in accordance with the list. it is said that at present
there are 640 kasupangudars. briefly stated under the
scheme the management of the properties of the durgha both
movable and immovable vests in nattamaigars and the
kasupangudars are entitled to the surplus in accordance
with their shares. for the assessment years 1953-54 and 1954-55 the income-
tax officer assessed the surplus income in the hands of the
managing trustee as an association of persons. the appellate
assistant companymissioner on appeal companyfirmed the same. on
further appeal the income-tax appellate tribunal took the
same view. at the instance of the assessee the tribunal
submitted the following question for the opinion of the high
court of madras under s.66 1  of the income-tax act. 1922
hereinafter called the act
whether the provisions of section 41 can be said to
apply to the assessees in this case. a division bench of the high companyrt which heard the
reference. held that the managing trustee qua the surplus
income managed the property and derived the income on behalf
of the kasupangudars and that the assessment should be made
on the said managing trustee to the extent of the interest
of each of the kasupangudars in the income received by him. in the result it answered the question in the affirmative
and in favour of the assessee. the companymissioner of income-
tax madras on a certificate of fitness granted by the high
court has preferred the present appeals against the said
order. the learned additional solicitor general appearing for
the revenue companytended that the natmaigars being trustees
the properties of the durgha vested in them and therefore
they or the managing trustee administered the trust
properties in their own right and number on behalf of the
kasupangudars and hence s.41 of the act did number apply with
the result the income-tax officer had rightly assessed the
surplus income in the hands of the trustees as an
association of persons. mr. a.v. viswanatha sastri learned companynsel for the
assessee respondent argued on the other hand that the
nattamaigars of the durgha were number trustees as understood
in the law of trust but were only managers managing the
properties on behalf of the durgha and kasupangudars. on
that assumption his argument proceeded. as the
nattamaigars as managers held the surplus on behalf of the
kasupangudars for distribution in definite shares s.41 of
the act was attracted. at the outset we may make it clear that in this appeal
we are companycerned only with the surplus remaining on hand
with the nattamaigars after meeting the expenses of the
durgha. the problem presented in these appeals falls to be
decided on a true companystruction of s.41 of the act. the
material part of s.41 reads

in the case of income profits or
gain chargeable under this act which the
courts of wards the administrators-general
the official trustees or any receiver or
manager  including any person whatever his
designation who in fact manages property on
behalf of anumberher  appointed by or under any
order of a companyrt or any trustee or trustees
appointed under a trust declared by a duly
executed instrument in writing whether
testamentary or otherwise  including the
trustee or trustees under any wakf deed which
is valid under the mussalman wakf validating
act 1913  are entitled to re
ceive on
behalf of any person the tax shall be levied
upon and recoverable from such companyrt of
wards administratorsgeneral official
trustee receiver or manager or trustee or
trustees in the like manner and to the same
amount as it would be leviable upon and
recoverable from the person
on whose behalf such income profits or
gains are receivable and all the provisions
of this act shall apply accordingly. under this section the income of properties receivable
by the enumerated persons for the benefit of others is
liable to be assessed to tax in their hands in the like
manner and to the same amount as it would be leviable upon
and recoverable from the person or persons on whose behalf
such income is receivable. this section centres on the basic
fact that the person in whose hands the income is assessable
shall be entitled to receive the same on behalf of any
person if he is number so entitled the provisions of the
section cannumber be invoked. so. it is companytended that as the
properties vested in the managing trustee and he received
the income in his own right and number on behalf of the
beneficiaries though for their benefit the said income in
the hands of the managing trustee fell outside the scope of
s.41 of the act. there are two answers to this companytention. the doctrine
of vesting is number germane to this companytention. in some of the
enumerated persons in the section the property vests and in
others it does number vest but they only manage the property. in general law the property does number vest in a receiver or
manager but it vests in a trustee but both trustees and
receivers are included in s.41 of the act. the companymon thread
that passes through all of them is that they function
legally or factually for others they manage the property
for the benefit of others. that the technical doctrine of
vesting is number imported in the section is apparent from the
fact that a trustee appointed under a trust deed is brought
under the section though legally the property vests in him. in the case of a muslim wakf the property vests in the
almighty even so the mutawallis are brought under the
section. a reasonable interpretation of the
section is that all the categories of persons mentioned
therein are deemed to receive the income on behalf of
anumberher person or persons or manage the same for his or
their benefit. numbere of them has any beneficial interest in
the income he companylects the income for the benefit of
others. in this view even if the nattamaigars were trustees
in whom the properties of the durgha vested they should be
deemed to have received the income only on behalf of the
kasupangudars in definite shares. the same companyclusion will be reached even if the problem
was approached from a different angle. in the well-knumbern
decision of the privy companyncil in vidya varuthi thirtha v.
balusami ayyar 1  the inappropriateness of the use of the
expression trustee to the manager of a hindu or mahommedan
religious endowments was brought out. therein their
lordships observed
neither under the hindu law number in the
mahommedan system is any property companyveyed
to a shebait or a mutawalli in the case of a
dedication. number is any property vested in him
whatever property he holds for the idol or the
institution he holds as manager with certain
beneficial interests regulated by custom and
usage. under the mahommedan law the moment a
wakf is created all rights of property pass
out of the wakf and vest in god almighty. the
curator whether called mutawalli or
saijadanishin or by any other name is merely
a manager. he is certainly number a trustee as
understood in the english system. the privy companyncil in the companytext of a wakf property
reaffirmed the said observations in allah rakhi v. mohammad
abdur rahirn 2 . the effect of the said decisions is that
nattamaigars are only the managers of the properties in
which the durgha and the kasupangudars have beneficial
interests. the properties do number vest in them. they
receive the income therefrom on behalf of both of them. after meeting the expenses of the durgha they hold the. balance on behalf of the kasupangudars and distribute the
same in accordance with their shares. in this view in terms
of s. 41 of the act the nattamaigars are the managers of the
properties on behalf of others and are entitled to receive
the income therefrom on behalf of them. with the result the
income which they hold on behalf of the kasupangudars can be
assessed only in their hands in the manner prescribed
thereunder. but it is said that whatever may the doctrine of
hindu or mohammadan law under the terms of the aforesaid
scheme the properties vested in the nattamaigars and
therefore they receive the income in their own right and
number on behalf of the kasupangudars. a careful reading of the
relevant
 1  1921  l.r. 48 i.a. 302 315.  2   1933  l.r.61 i.a. 50.
part of the scheme does number companyntenance this argument. clause 3 of the scheme which is the material clause reads
the management and administration of
the affairs of the nagore durgha at nagore
tanjore district and other thakias and
shrines companynected therewith  mentioned in
schedule a hereunder  and all
properties--movables and immovables--which
belong to or have been or may hereafter be
given dedicated endowed thereto shall
subject 10 the provisions thereof vest
hereditarily in the eight trustees or
nattamaigars of the durgha who shall
constitute the board of trustees. each trustee
or nattamaigar is entitled to hold office for
life and after him the trusteeship shall
devolve on his next male heir in accordance
with the custom prevailing in respect of such
office in the durgha. under this clause the management and administration of
the nagore durgha and its properties vest in the
nattamaigars. what vests in the nattamaigars is number the
properties of the durgha but the management and
administration thereof. unless the words are clear we are
number prepared to hold that the high companyrt in framing a scheme
for the endowments of the durgha had introduced a foreign
concept of trust in derogation of mohammadan law. we
therefore hold that the scheme did number vest the properties
of the durgha in the nattamaigars. lastly a faint argument was raised to the effect that under
the scheme the managing trustee was number appointed under any
order of a companyrt but was appointed by an agreement among the
trustees. but in cl. 4 of the scheme the high companyrt gave a
specific direction that the managing trustee shall be
elected from among the board of trustees. the managing
trustee elected was certainly appointed under an order of a
court for the election was held pursuant to the order of
the companyrt.