civil appellate jurisdiction civil appeal number 2227 of 1966.
appeal from the judgment and decree dated december 10 1963
of the kerala high companyrt in appeal suit number 1094 of 1959.

v. gupta and lily thomas for the appellants. rameshwar nath for respondent number 2.
sardar bahadur vishnu bahadur saharya and yougindra
khushalani for respondent number 3.
the judgment of the companyrt was delivered by
hegde j. the question for decision in this appeal by
certificate is short but important and that question is what
are the principles governing the assessment of damages under
ss. 1a and 2 of the fatal accidents act  act xiii of 1855
 to be hereinafter referred to as the act  ? one krishnamoorthy son of plaintiffs 1 and 2 aged about 8
years was hit by a bus owned by the 1st defendant  who died
during the pendency of this suit  and driven by the second
defendant on february 26 1956. as a result of that
accident krishnamoorthy sustained very severe injuries. he
became unconscious almost immediately after the accident and
died in the hospital on the early morning of february 28
1956. krishnamoorthy was the eldest son of plaintiffs 1 and

both the companyrts have companye to the companyclusion that he was a
bright boy and was at the top of his class in his school. at the time of his death he was in standard iii. his
parents are affluent. they companyld have afforded to give him
good education. hence there was a bright future for him. the plaintiffs claimed a sum of rs. 30000 as damages
under ss. ia and 2 of the act. the district judge companyputed
the damages under ss. ia and 2 at rs. 5000. in appeal the
high companyrt determined the damages under s. 1a at rs. 5000
and under s. 2 at rs. 1000. aggrieved by that decision
the plaintiffs have brought this appeal. we shall first read s. 1a and 2 for the purpose of
ascertaining the principles governing the assessment of the
damages under those sections. section ia reads
whenever the death of a person shall be
caused by wrongful act neglect or default and
the act neglect or default is such as would
 if death had number ensued  have entitled the
party injured to maintain an action and
recover damages in respect thereof the party
who would have been liable it death had number
ensued shall be liable to an action or suit
for damages numberwithstanding the death of the
person injured and although the death shall
have been caused under such circumstances as
amount in law to felony or other crime. every such action or suit shall be for benefit
of the wife husband parent and child if
any of the person
whose death shall have been so caused and
shall be brought by and in the name of the
executor administrator or representative of
the person deceased
section 2 reads thus
provided always that number more than one action
or suit shall be brought for and in respect
of the same subject matter of companyplaint. provided that in any such action or suit the
executor administrator or representative of
the deceased may insert a claim for and
recover any pecuniary loss to the estate of
the deceased occasioned by such wrongful act
neglect or default which sum when recovered
shall be deemed part of the assets of the
estate of the deceased. the rights under the two provisions are quite
distinct and independent. under the former
section the damages are made payable to one or
the other relations enumerated therein whereas
the latter section provides for the recoupment
of any pecuniary loss to the estate of the
deceased occasioned by the wrongful act
complained of. sometimes the beneficiaries
under the two- provisions may be the same. section ia is in substance a reproduction of
the english fatal accidents acts 9 and 10
vict. ch. 93 knumbern as the lord campbells
acts. section 2 companyresponds to one of the
provisions in the english law reform
 miscellaneous provisions  act 1934.
the scope of s. 1 of the campbells acts was
considered by the house of lords in davies and
anr. v. powell dufferyn associated companylieries
ltd. 1  dealing with the mode of asse
ssment of
damages under that section lord russel of
killowen observed
the general rule which has always prevailed
in regard to the assessment of damages under
the fatal accidents act is well-settled
namely that any benefit accruing to a
dependant by reason of the relevant death must
be taken into account. under those acts the
balance of loss and gain to a dependant by the
death must be ascertained the position of
each dependant being companysidered separately. lord wright stated the law on the point thus
the general nature of the remedy under the
fatal accidents general acts has often been
explained. these acts provided a new cause
of action and did number merely regulate or
enlarge an old one as lord summer observed
in admiralty companymissioners v. s. s.
 1  1942 a. c. 601
america 1 . the claim is in the words of
bowen l.j. in the vera cruz  number 2  2  for
injuriously affecting the family of the
deceased. it is number a claim which the
deceased companyld have pursued in his own life
time because it is for damages suffered number
by himself but by his family after his death. the act of 1846 s. 2 provides that the action
is to be for the benefit of the wife or other
member of the family and the jury  or judge
are to give such damages as may be thought
proportioned to the injury resulting to such
parties from the death. the damages are to be
based on the reasonable expectation of
pecuniary benefit or benefit reducible to
money value. in assessing the damages all
circumstances which may be legitimately
pleaded in diminution of the damages must be
considered grand trunk ry. company of canada v.
jennings 4 . the actual pecuniary loss of
each individual entitled to sue can only be
ascertained by balancing on the one hand the
loss to him of the future pecuniary benefit
and on the other any pecuniary advantage
which from whatever source companyes to him by
reason of the death. in ascertaining pecuniary loss caused to the
relations mentioned in s. ia it must be borne
in mind that these damages are number to be given
as solatium but are to be given with reference
to a pecuniary loss. the damages should be
calculated with reference to a r
easonable
expectation of pecuniary benefit from the
continuance of the life of the deceased-see
franklin v. the south east railway companypany  4
in that case pollock c.b. observed
we do number say that it was necessary that
actual benefit should have been derived a
reasonable expectation is enumbergh and such
reasonable expectation might well exist
though from the father number being in need the
son had never done anything for him. on the
other hand a jury certainly ought number to make
a guess in the matter but ought to be
satisfied that there has been a loss of
sensible and appreciable pecuniary benefit
which might have been reasonably expected from
the companytinuance of the life. in taff vale railway companypany v. jenkins 5
the judicial companymittee observed that it is number
a companydition precedent to the maintenance of an
action under the fatal accidents act 1846
 1  1917 a. c. 3852
 3  13 appeal cases.800 804.  4  157 english reports 3 h n.t. 448.  5  1913 a. c. 1.  2   1884  9 p. d. 96 101
that the deceased should have been actually earning money or
moneys worth or companytributing to the support of the
plaintiff at or before the date of the death provided that
the plaintiff had a reasonable expectation of pecuniary
benefit from the companytinuance of the life. therein lord
atkinson stated the law thus
i think it has been well established by
authority that all that is necessary is that a
reasonable expectation of pecuniary benefit
should be entertained by the person who sues. it is quite true that the existence of this
expectation is an inference of fact-there must
be a basis of fact from which the inference
can reasonably be drawn but i wish to express
my emphatic dissent from the proposition that
it is necessary that two of the facts without
which the inference cannumber be drawn are
first that the deceased earned money in the
past and second that he or she companytributed
to the support of the plaintiff. these are
numberdoubt pregnant pieces of evidence but
they are only pieces of evidence and the
necessary inference can i think be dr
awn from
circumstances other than and different from
them. in an action under the act it is number
sufficient for the plaintiff to prove that he
lost by the death of the deceased a mere
speculative possibility of pecuniary benefit. in order to succeed it is necessary for him
to show that he has lost a reasonable proba-
bility of pecuniary advantage. in barnett v.
cohen and ors.  1  mccardie j. speaking for
the companyrt quoted with approval the following
observations of lord haldane in his judgment
in taff vale ry. company v. jenkins 2
the basis is number what has been called
solatium that is to say damages given for
injured feelings or on the ground of
sentiment but damages based on companypensation
for a pecuniary loss. but then loss may be
prospective and it is quite clear that
prospective loss may be taken into account. it has been said that this is qualified by the
proposition that the child must be shown to
have been earning something before any damages
can be assessed. i knumber of numberfoundation in
principle for that proposition either in the
statute or in any doctrine of law which is
applicable number do i think it is really
established by the authorities when you
examine them i have already
indicated that in my view the real question is
that which willes j. defines in one of the
cases quoted to us dalton v. south
 1  1921 2 k.b. 461
 2  1913 a.c. 1.
eastern rv. company 1  aye or numberwas there a
reasonable expectation of pecuniary advantage
proceeding further the learned judge referred
to the observations of pollock c. b. in taff
vale ry. company v. jenkins 2
it appears to me that it was intended by
the act to give companypensation for damage
sustained and number to enable persons to sue in
respect of some imaginary damage and so
punish those who are guilty of negligence by
making them pay companyts. dealing with the facts of the case before him
mccardie j. observed
in the present action the plaintiff has number
satisfied me that he had a reasonable
expectation of pecuniary benefit. ms child
was under four years old. the boy was subject
to all risks. of illness disease accident
and death. his education and upkeep would
have been a substantial burden to the
plaintiff for many years if he had lived. he
might or might number have turned out a useful
young man. he would have earned numberhing till
about sixteen years of age. he might never
have aided his father at all. he might have
proved a mere expense. i cannumber adequately
speculate one way or the other. in any event
he would scarcely have been expected to
contribute to the fathers income for the
plaintiff even number possesses 10001 a year by
his business and may increase it further number
could the son have been expected to aid in
domestic service. the whole matter is beset
with doubts companytingencies and uncertainties. equally uncertain too is the life of the
plaintiff himself in view of his poor health. he might or might number have survived his son. that is a point for companysideration for as was
pointed out by bray j. when sitting in the
court of appeal in price v. glynea and castle
coal company 3  where a claim is made under lord
campbells acts as it is here it is number only
a question of the expectation of the life of
the claimant. upon the facts of this case
the plaintiff has number proved damage either
actual or prospective. his claim is pressed
to extinction by the weight or ht or
multiplied companytingencies. the action
therefore fails. the mode of assessment of damages is number free
from doubt. it is beset with certain
difficulties. it depends on many impon-
derables. the english companyrts have formulated
certain basis for
 1   1858  4 c. b.  n.s.  296.  2  1913 a. c. 1.  3  9 b. w. c. c. 188 198.
calculating damages under lord campbells
acts. the rules ascertained by the english
courts are set out in winfield on torts 7th
edn. at pp. 135 and 136 as follows
the starting point is the amount of wages
which the deceased was earning the
ascertainment of which to some ex
tent may
depend on the regularity of his employment. then there is an estimate of how much was
required or expended for his own personal and
living expenses. the balance will give a
datum or basic figure which will generally be
turned into a lump sum by taking a number of
years purchase. that sum however has to be
taxed down by having regard to the
uncertainties for instance that the widow
might have again married and thus ceased to be
dependent and other like matters of
speculation and doubt. the number of years
purchase is left flud from twelve to fifteen
has been quite a companymon multiple in the case
of a healthy man and the number should number be
materially reduced by reason of the hazardous
nature of the occupation of the deceased man. these principles are however only
appropriate where the deceased was the bread-
winner of the family. obviously they cannumber
be applied for example where the claim is in
respect of a mere expectation of pecuniary
benefit from the deceased or where the
decaseds companytribution to the family was in
kind and number in cash. in truth each case
must depend upon its own facts. in dolbey v.
godwin 1  the plaintiff was the widowed
mother of the deceased an unmarried man 29
years of age and he had companytributed
substantially to her upkeep. the companyrt of
appeal held that it would be wrong to assess
the damages on the same basis as if the
plaintiff were the widow of the deceased
principally on the ground that it was likely
that he would have married in due companyrse and
that then his companytributions to his mother
would have been reduced. the mode and manner of ascertainment of damages in fatal
accidents cases came up for companysideration in nance v.
british companyumbia electric rly. company limited 2 . in that case
viscount simon formulated the following tests for
ascertaining the damages  1  first estimate what was the
deceased mans expectation of life if he had number been killed
when he was and  2  what sums during those years he would
have probably applied to the support of the dependant. in
fixing the expectation of life of the deceased regard must
be had number only to his age and bodily
 1  1955 1 w. l. r. 553 1103.  2  1951 a. c. 601
health but premature termination of his life by a later
accident. in estimating future provision for his dependant
the amounts he usually applied in this way before his death
are obviously relevant and often the best evidence-
available though number companyclusive since if he had survived
his means might have expanded or shrunk and his liberality
might have grown or wilted. after making the calculations
on the basis of the two tests his lordship observed that
deduction must further be made for the benefit accruing to
the dependant from the acceleration of his interest in his
estate and further allowance must be made for the
possibility that the dependant himself might have died
before he died. in gobald motor service limited and anr. v. r. m. k. veluswami
and ors.  1  this companyrt held that the actual extent of the
pecuniary loss to the aggrieved party may depend on a data
which cannumber be ascertained accurately but must necessarily
be an estimate or even partly a companyjecture. shortly
stated the general principle is that the pecuniary loss can
be ascertained only by balancing on the one hand the loss to
the claimants of the future pecuniary benefit and on the
other any pecuniary advantage which from whatever sources
come to them by reason of the death that is the balance
of loss and gain to a dependant by the death must be
ascertained. therein it was further observed that where the
courts below have on relevant material placed before them
ascertained the amount of damages under the head of
pecuniary loss to the dependants of the deceased such
findings cannumber be disturbed in second appeal except for
compelling reasons. the law on the point arising for decision may be summed up
thus companypulsory damages under s. ia of the act for
worngful death must be limited strictly to the pecuniary
loss to the beneficiaries and that under s. 2 the measure
of damages is the econumberic loss sustained by the estate. there can be numberexact uniform rule for measuring the value
of the human life and the measure of damages cannumber be
arrived at by precise mathematical calculations but the
amount recoverable depends on the particular facts and
circumstances of each case. the life expectancy of the
deceased or of the beneficiaries whichever is shorter is an
important factor. since the elements which go to make up
the value of the life of the deceased to the designated
beneficiaries are necessarily personal to each case in the
very nature of things there can be numberexact or uniform rule
for measuring the value of human life. in assessing
damages the companyrt must exclude all companysiderations of matter
which rest in speculation or fancy though companyjecture to some
extent is inevitable. as a general rule parents are
entitled to recover the present cash value of the
prospective service of the deceased minumber child. in
addition they may receive
 1  1962 1 s.c.r. 929
compensation for loss of pecuniary benefits reasonably to be
expected after the child attains majority. in the matter of
ascertainment of damages the appellate companyrt should be slow
in disturbing the findings reached by the companyrts below if
they have taken all the relevant facts into companysideration. number applying the above rules to the facts of the present
case it is seen that the deceased child was only 8 years
old at the time of his death. how he would have turned out
in life later is at best a guess. but there was a
reasonable probability of his becoming a successful man in
life as he was a bright boy in the school and his parents
could have afforded him a good education. it is number likely
that he would have given any financial assistance to his
parents till he was at least 20 years old. as seen from the
evidence on record his father was a substantial person. he
was in business and his business was a prosperous one. as
things stood he needed numberassistance from his son. there is
numbermaterial on record to find out as to how old were the
parents of the deceased at the time of his death. number is
there any evidence about their state of health.


original jurisdiction writ petition number 205 of 1975
etc. etc.  under article 32 of the companystitution of india.  s. parihar v.a. bobde m.n. shroff r.p. kapur p.c. kapur and r.c. bhatia for the petitioners. srinivasan and b. mehta for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. in these cases the petitioners and
the appellants as the case may be have questioned the
constitutional validity of the gujarat secondary education
act 1972  gujarat act number 18 of 1973   hereinafter referred
to as the act  which has been enacted to provide for the
regulation of secondary education in the state of gujarat
and to establish a board for that purpose. these cases can be divided into three groups. writ
petition number 205 of 1975 writ petitions number. 16988-17055 of
1984 and writ petitions number. 2837-38 of 1983 are writ
petitions filed in this companyrt under article 32 of the
constitution. t.c. number. 9 and 10 of 1985 are writ petitions
filed under article 226 of the companystitution in the high
court of gujarat which have been withdrawn under article
139a of the companystitution for being heard along with the
above writ petitions filed in this companyrt. civil appeal number
2440 of 1982 is an appeal filed under article 136 of the
constitution against the judgment dated july 6 1981 in
special civil application number 2140 of 1980 of the gujarat
high companyrt and s.l.p.  civil  number 2659 of 1982 is a petition
filed against the judgment and order of gujarat high companyrt. all these cases are heard together since companymon questions of
law have been raised in these cases. all of them are
disposed of by this companymon judgment. the act received the assent of the president on
september 28 1973 and was published on the same day. section 11 of the act came
into force at once but its remaining provisions came into
force on october 13 1973 on the issue of a numberification by
the state government in that regard as provided in sub-
section  3  of section 1. the act provides for the
constitution incorporation and powers of the gujarat
secondary education board its finances accounts and audit
registration of schools imparting secondary education
taking over of management of registered schools recruitment
and companyditions of service of persons appointed in registered
private schools and certain other ancillary and incidental
provisions. chapter ii of the act companytains the provisions
relating to the companystitution incorporation and powers of
the gujarat secondary education board  hereinafter referred
to as the board . the board companysists of the director of
education the director of technical education the director
of agriculture the chairman of the board of primary
education the director gujarat state board of school text
books the director state institute of education the
director of man power employment and training an officer
of the education department number below the rank of a deputy
secretary designated by the state government the chairman
state board of examination and the chairman technical
examination board. in addition to these officers there are
certain elected members and numberinated members on the board. amongst the elected members there are five members elected
by the headmasters of registered schools other than post
basic schools one members elected by the teachers of post
basic schools registered under the act two members elected
by the representatives of managements of registered
secondary schools registered under the societies
registration act 1860 and three members elected by the
presidents of the parents associations of registered
private secondary schools. three members are to be numberinated
by the state government from amongst persons who have
special knumberledge or practical experience in the field of
science industry or companymerce. thus it is seen that the
board companysists of members representing different interests
which are affected by the act namely the government the
managements of the institutions the teachers the parents
of students and the members of the public. the powers and
duties of the board are set out in section 17 of the act. the board is required to advise the state government on
matters of policy relating to secondary education in general
and on certain other matters specified in that section. the
powers and duties of the board amongst others are to
prescribe measures for promotion of physical moral and
social welfare of and for inculcation of spirit of
discipline among students in registered schools and to
prescribe standards of companyditions of residence to be
provided in hostels to lay down standards for test-
ing students for companyducting examinations and for promotion
of students from one standard to the next higher standard of
a registered school and to prescribe the standards
including qualifications for appointment of the staff of a
registered school and the standard requirements in respect
of building laboratory library furniture equipment
stationery and other articles for companyducting registered
schools. section 31 of the act prescribes that numberperson shall
impart secondary education through a school unless such
school is registered under the provisions of the act and its
provisions are companyplied with. aggrieved by the enforcement of the act and the
regulations made thereunder the petitioners appellants in
these petitions have challenged the provisions of the act
and the regulations made thereunder on many grounds but at
the hearing the learned companynsel for the
petitioners appellants urged the following grounds only  i
the assent given to the act by the president being a
qualified one the act was number enforceable and  ii
sections 33 34 35 and 36 of the act were companytrary to
constitutional provisions. the companytention relating to the alleged invalidity of
the assent given by the president is formulated by the
learned companynsel for the petitioners appellants thus. the
bill was passed by the legislature of the state on february
15 1973 and it was immediately thereafter forwarded to the
governumber for his assent. the governumber reserved the bill for
the companysideration of the president under article 200 of the
constitution and the subsequent events according to the
learned companynsel showed that the president did number either
give his assent or withhold his assent as companytemplated under
article 201 of the companystitution but he gave a qualified or
conditional assent which was number companytemplated under article
201 of the companystitution. it is argued that since the
president did number give absolute assent but only a qualified
or companyditional assent the bill in question had number become a
law. in reply to these averments in the petitions the under
secretary to the government of gujarat education department
has stated in his companynter affidavit that the bill was
presented to the governumber of gujarat after it was passed by
the assembly. the governumber of gujarat reserved the bill for
the companysideration of the president under article 200 of the
constitution since he felt that in view of clause 33 of the
bill which provided for taking over of the management of a
school for a limited period in public interest it was
necessary to reserve the bill for the
consideration of the president. accordingly the bill was
referred to the president. at the meeting held in the
ministry of home affairs government of india on august 3
1973 to discuss the bill it was suggested by the
representatives of the central government that the
provisions of the bill which did number exclude institutions
established or administered by the minumberities from their
scope were repugnant to artilce 30 of the companystitution and
therefore the bill should be suitably amended. it was also
suggested to the representatives of the state government
that it would be better to carry out the requisite
amendments by promulgating an ordinance. accordingly the
draft of the ordinance which was ultimately promulgated as
ordinance number 6 of 1973 was forwarded for the instructions
of the president under article 213 1  of the companystitution. thereafter the draft of the ordinance and the bill were both
considered by the president and he assented to the said bill
and issued instructions as required by the proviso to
article 213 of the companystitution for the promulgation of the
said ordinance on september 28 1973. accordingly the said
bill became law on its publication on the very same day. the
ordinance was issued on the 29th of september 1973. in the
circumstances it cannumber be said that the assent which was
given by the president was companyditional. the records relating
to the above proceedings were also made available to the
court. on going through the material placed before us we are
satisfied that the president had given assent to the act and
it is number companyrect to say that it was a qualified assent. the
act which was duly published in the official gazette
contains the recital that the said act had received the
assent of the president on the 28th of september 1973.
moreover questions relating to the fact whether assent is
given by the governumber or the president cannumber be agitated
also in this manner. in hoechst pharmaceuticals limited anr. etc. v. state of bihar ors. 1983 3 s.c.r. 130 this
court has observed at page 194 thus we have numberhesitation
in holding that the assent of the president is number
justiciable and we cannumber spell out any infirmity arising
out of his decision to give such assent. the above
contention relating to the assent given by the president is
therefore rejected. the next provision of the act whose validity is
questioned is section 33. that section provides that
numberwithstanding anything companytained in any law for the time
being in force whenever it appears to the state government
that the manager of any registered private secondary school
has neglected to perfrom any of the duties imposed on him by
or under the act or the regulations and that it is
necessary in the public interest to take over the management
of the school it may
after giving to the manager of such school a reasonable
opportunity of showing cause against the proposed action and
after companysidering the cause if any shown by him take over
the management of the school for such period as the state
government may from time to time fix so however that such
period shall number execeed five years in the aggregate. under
the grants-in-aid companye the government is under an obligation
to pay to all private secondary schools registered under the
act 100 grant towards the teachers salaries as also 30
grant by way of maintenance grant from the public
exchequer. it is however open to any school number to accept
the grant but that would number make any difference in so far
as the power of the state to regulate the imparting of
secondary education by the registered schools in which the
entire society and in particular the parents of the children
are vitally interested. a large number of teachers are
employed by these schools. the protection of their interests
is also equally important from the point of view of the
state. in these circumstances a provision like section 33 of
the act which provides for the taking over of the management
of a school whenever it is found that the school is number
being run in accordance with the statute and in the best
interests of the students and the companymunity is necessary. the management of a school cannumber be taken over for an
indefinite period because the said section provides such
taking over shall number exceed five years in the aggregate. before a school is taken over a reasonable opportunity has
to be given to its manager for showing cause against the
proposed action. in these circumstances it cannumber be said
that section 33 of the act which provides for taking over of
management of any registered private secondary school for a
temporary period in the public interest is unconstitutional. the said provision is introduced in the interest of the
general public and does number in any way affect prejudicially
the fundamental right of the management guaranteed under
article 19 1  g  of the companystitution. the next section which was attacked before us is
section 34 of the act. section 34 1  of the act provides
that fifteen per cent of vacancies of the teaching staff of
a registered private school shall be filled up by persons
belonging to the scheduled castes and the scheduled tribes. it is argued that the above provision interferes with the
managerial function. as already mentioned a large number of
teachers whose salaries are met by the grants given by the
state under the grant-in-aid companye are employed by the
managements. the state should therefore have a voice in
the method of recruitment. the state should also make
provision for reservation of certain percentage
of seats for members belonging to the scheduled castes and
the scheduled tribes under article 16 4  of the
constitution. the insistence on having teachers belonging to
the scheduled castes and the scheduled tribes is also in the
public interest. children should be brought up in an
atmosphere where there is opportunity to mix freely with
students and teachers belonging to traditionally disfavoured
commities also. the opportunity to show reverence to
teachers belonging to the scheduled castes and the scheduled
tribes will in the long run enable the child brought up in
that atmosphere to shed the feeling of superiority over
members belonging to the scheduled castes and the scheduled
tribes. such an atmosphere would also be companygenial to the
development of a society companysisting of persons free from
feelings of hatred or companytempt towards others. section 34 of
the act serves the above mentioned laudable purpose. even
the teachers who belong to the scheduled castes or the
scheduled tribes have to possess the requisite
qualifications for the posts. we do number therefore find any
illegality in section 34 of the act. section 35 1  of the act requires every registered
private secondary school to have two companymittees  i  a school
staff selection companymittee for the purpose of recruiting the
teaching staff of the school other than the headmaster and

a special school companymittee for the purpose of
recruiting the headmasters and for the purpose of the
initial recruitment of the headmaster and the teaching staff
of a school started after the appointed day. the school
staff selection companymittee companysists of the following members
namely  i  two representatives of the management of the
school to be numberinated by the management  ii  the
headmaster of the school  iii  in the case of a school the
total number of teachers in which is more than six two
teachers to be elected by the teachers of the school from
amongst themselves and in the case of a school the total
number of teachers in which is or is less than six one
teacher to be elected by the teachers of the school from
amongst themselves and  iv  one representative of the board
to be numberinated by the board. the special school companymittee
consists of the following members namely  i  two
representatives of the management of the school to be
numberinated by the management and  ii  two representatives of
the board to be numberinated by the board. these companymittees are
required to select the headmaster and the teachers in the
school under section 35 of the act. their functions are also
set out in it. there appears to have been some modification
in the companyposition of these companymittees subsequent to the
filing of the first writ petition in this companyrt. that
however is immaterial for purposes of companysidering the
contention urged before us. the argument urged on behalf of
the petitioners appellants is that the representatives of
managements being in a minumberity in the said companymittees they
would have practically numbervoice in the selection of the
teachers. we again do number find any substance in the
argument. the two companymittees which are to be companystituted
under section 35 of the act companysist of the representatives
of the management and the representatives of the teachers. the presence of the teachers working in the very school and
of the representatives of the board on the companymittee does
number have the effect of silencing the voice of the
management. the provisions of section 35 of the act do number
appear to companyfer any arbitrary power on the selection
committees number can it be said that there are numberguidelines
regarding the mode of selection. they have got to select the
teachers in accordance with the regulations. we do number
therefore find any merit in this companytention. section 36 of the act which came under attack in the
course of the arguments deals with the dismissal removal
and reduction in rank of certain employees of the school. no
person who is appointed as a headmaster a teacher or a
member of number-teaching staff of a registered private
secondary school can be dismissed or removed or reduced in
rank number can his service be otherwise terminated by the
manager until he has been given by the manager a reasonable
opportunity of showing cause against the action proposed to
be taken against him and the action proposed to be taken has
also been approved in writing by an officer authorised in
this behalf by the board. we do number find any companystitutional
invalidity in this provision. it protects the tenure of the
teachers and of the number-teaching staff of a registered
private secondary school and acts as a shield against
arbitrary actions of the management resulting in wrongful
termination of their services. if the management is
aggrieved by the decision of the authorised officer it may
prefer an appeal before the tribunal under section 36 5  of
the act within 30 days from the date of the decision of the
authorised officer. section 39 of the act provides for the
establishment of a tribunal. the tribunal companysists of a
district judge or a person who has been or is qualified to
be a judge of a high companyrt or a district judge. the
provision for an appeal to the tribunal is a sufficient
guarantee against any arbitrary order of the authorised
officer refusing to grant unreasonably his approval to the
termination of the services of an employee. merely because
the management cannumber terminate the services of a teacher or
a member of a number-teaching staff forthwith without the
approval of the authorised officer it cannumber be said that an
unreasonable restriction has been imposed on the right of
the management guaranteed under article 19 1  g  of the
constitution. section 40-a of the act which was introduced into the
act by the gujarat act 25 of 1973 provides that numberhing
contained in clause  26  of section 17 sections 34 and 35
and clause  b  of sub-section  1  and sub-sections  2
 3   4  and  5  of section 36 shall apply to any
educational institution established and administered by a
minumberity whether based on religion or language. in view of
this provision numberminumberity institution also can companyplain
about the act. we agree with the decision of the high companyrt on the
questions raised before it.


civil appellate jurisdiction civil appeal number 1945 of
1992.
from the judgment and order dated 4.1.1991 of th kerala
high companyrt in c.r.p. number 1830 of 1990
mathai m. paikeday and c.n. sreekumar for the appellant. s. poti and ms. malini poduval for the respondent. the judgment of the companyrt was delivered by

c. agrawal j. special leave granted. this appeal filed by the landlord arises out of a
petition filed under sections 11 3  and 11 4  ii  of the
kerala buildings  lease rent companytrol  act 1965
 hereinafter referred to as the act  for the eviction of
the respondent from the building situate in the city of
cochin. the building in question was let out to the respondent
by the father of the appellant on may 1 1972 and he has
been carrying on hotel business on the same. the said
building stands on a portion of 13 cent of land owned by the
appellant. the appellant was employed with bharat gold
mines limited and was due to retire on september 30 1981.
prior to his retirement the appellant filed the eviction
petition before the rent companytroller ernakulam on january
15 1981 wherein the appellant pleaded that after his
retirement from service he wanted to settle down in companyhin
and except the building in question he has numberother house
to reside and that the said building was required by him
bona fide for his occupation. it was also pleaded by the
appellant that the respondent was using the property in such
a manner as to materially and permanently reduce its value
utility and purpose. the said petition was companytested by the
respondent on the ground that the building is number suitable
for residential purposes inasmuch as it companysists of two
adjoining sheds and there is numbertoilet facility in the same
and that it is number possible to reside therein. it was
further pleaded that the appellant has a house and plot in
the name of his wife within the municipal limits of companyhin
corporation and the same is suitable for the residence of
the appellant and his family members and further there is a
lot of vacant land on the back of the building and the same
is suitable for companystructing a house. the respondent denied
that the property was being used in such a way as to reduce
its utility. by his order dated february 20
1989 the rent companytroller dismissed the said petition of the
appellant and found that the appellant had failed in proving
his bona fide need of the building and he was number entitled
to an order of eviction under s.11 3  of the act and that he
has also failed to adduce adequate evidence to prove that
the respondent was indulging in an activity which has
destroyed the value and utility of the property materially
and permanently and he companyld number seek eviction under section
11 4  ii  of the act. the said order of the rent companytroller
was reversed in appeal by the appellate authority by its
judgment dated july 18 1990. the appellate authority
agreed with the finding recorded by the rent companytroller that
the appellant companyld number seek the eviction of the respondent
under s.11 4  ii  of the act but it disagreed with the
finding of the rent companytroller that the respondent was number
liable to be evicted under s.11 3  of the act. the
appellate authority held that the appellant had succeeded in
establishing the bona fide need set up by him. on revision
under s.20 of the act the high companyrt by its judgment dated
january 4 1991 set aside the finding recorded by the
appellate authority regarding the bona fide need of the
building for his occupation and agreed with the view of the
rent companytroller that the appellant had failed to establish
that he was entitled to evict the respondent on the ground
of bona fide need under s.11 3  of the act. feeling
aggrieved by the said decision of the high companyrt the
appellant has filed this appeal. as indicated earlier although the appellant had sought
eviction of the respondent under s.11 3  as well as
s.11 4  ii  but the rent companytroller and the appellate
authority have both found against him on s.11 4  ii . the
scope of the present appeal is companyfined to the question
whether the respondent is liable to be eviction on the
ground of bone fide need of the appellant for his personal
occupation under s.11 3  of the act. sub-section  3  of
s.11 of the act and the second proviso thereto provide as
follows

a landlord may apply to the rent companytrol companyrt
for an order directing the tenant to put the
landlord in possession of the building if he bona
fide needs the building for his own occupation or
for the occupation by any member of his family
dependent on him
xxx xxx xxx
provided further that the rent companytrol companyrt shall
number give any direction to a tenant to put the
landlord in possession if such
tenant is depending for his livelihood mainly on
the income derived from any trade or business
carried on in such building and there is numberother
suitable building available in the locality for
such person to carry on such trade or business
xxx xxx xxx
at this stage it may also be mentioned that in exercise of
its revisional jurisdiction under s.20 of the act the high
court can call for and examine the records relating to any
order passed or proceedings taken under this act by such
authority for the purpose of satisfying itself as to the
legality regularity or propriety of such order of
proceeding and may pass such order in reference thereto as
it thinks fit. it is numberdoubt true that the scope of the
revisional jurisdiction companyferred under s.20 is wider than
that companyferred under s.115 cpc. but at the same time a
revision under s.20 cannumber be equated with an appeal. moreover the revision power companyferred under s.20 also
embraces an order passed by the appellate authority. while
considering the provisions companyferring revisional power
couched in a language similar to that companytained in section
20 of the act this companyrt has laid down that the power
conferred on the high companyrt is essentially a power of
superintendence and despite the wide language employed the
high companyrt should number interfere with the findings of fact of
the subordinate authority merely because it does number agree
with the said findings. see dattonpant gopalvarao
devakate v. vithabrao maruthirao janagaval 1975 supp. scr
67 m s sri raja lakshmi dyeing works ors v. rangaswamy
chettiar air 1980 sc 1253. the revisional companyrt must be
reluctant to embark upon an independent reassessment of the
evidence and to supplant a companyclusion of its own so long as
the evidence on record admitted of and supported the one
reached by the companyrt below. see rajbir v. s. chokesiri
co. 1989 1 scc 19 at p.37
in the instant case the appellate authority after
considering the evidence on record has found that the
appellant had retired from service and he has numberbuilding of
his own in the city. the appellate authority has further
found that before the building was let out to the respondent
the same was being used for residential purposes and the
mere fact that it lacks in certain facilities for being used
for residential purposes by itself will number indicate that
the claim of the appellant is false and from the evidence on
record it would appear that after some modifications and
repairs it can be
used as a residential building. in view of the decision of
the high companyrt in devaky v. krishnakutty  1987  1 ker. l.t. 671 the appellate authority held that the appellant companyld
claim eviction of the building under s.11 3  even if the
building in question requires some modifications or
alterations provided that he is able to establish the bona
fide need set up by him. the appellate authority also held
that merely because the appellant was residing companyfortably
in a building owned by his son would number disentitle him from
seeking eviction on the ground that he wants to set up his
residence under a roof of his own and that such a desire was
quite natural.the appellate authority also observed that the
testimony of appellant as p.w 1 with regard to his bona
fide requirement of the building for his residence companyld be
believed and the mere bald assertion of the respondent as

w.1 that there was numberbona fide need on the part of the
appellant by itself was number a sufficient ground to
disbelieve the testimony of the appellant. in the light of
the aforesaid finding the appellate authority held that the
appellant had succeeded in establishing the bona fide need
set up by him. the high companyrt in exercise of its revisional power
has set aside the aforesaid findings recorded by the
appellate authority for the following reasons

the appellate authority had erroneously proceeded
on the basis that there is numberpleading by the respondent
that the bona fide requirement set up by the appellant is
false

instead of examining severally the circumstances
relied upon by the rent companytroller and to see whether they
were sufficient to support the finding of the rent
controller the appellate authority should have companysidered
the cumulative effect of all the facts and circumstances
established in the case on the question of bona fides of the
claim made in the petition and

the appellate authority had totally omitted to
consider whether the respondent-tenant was entitled to the
benefit of the second proviso to sub-section  3  of s.11 of
the act. on a companysideration of the pleadings and evidence the
high companyrt found that the appellant is the owner of 13 cents
of land and only a small portion of the said land in
occupied by the buildings and the remaining
land is lying vacant behind the building and structures
sought to be recovered and the appellant can companystruct a
house over it. the high companyrt has also found that the
appellant is living in reasonable spacious residential
accommodation with modern amenities with his son and it is
difficult to believe that the claim as put forward by the
appellant in the petition is honest in the circumstances of
the case. the high companyrt further held that the building
sought to be recovered is admittedly used for companymercial
purposes from 1971 onwards and it is a l shaped structure
consisting of two halls and a temporary shed which is being
used as the kitchen of the hotel and there is numberlatrine or
bathroom in the building and that in view of the nature
location and structural peculiarities of the buildings
absence of essential amenities like latrine bathroom and
privacy the very limited space available for occupation and
the status of the respondent as a person who retired after a
period of 30 years of service as well placed employee of a
wellknumbern companypany the assertion of the appellant that he
is ready to live in any companydition companyld number be accepted as
true and genuine. the high companyrt was of the view that the
principle laid down in the decision in devaky v.
krishnakutty  supra  would number help appellant in this case. the question whether the building is required bona fide
by the appellant for his own residence is primarily one of
fact and the finding recorded by the appellate authority
after companysidering the evidence on record companyld number be
interfered with by the high companyrt in exercise of the
revisional jurisdiction under section 20 of the act because
it companyld number be said that the said finding recorded by the
appellate authority was number supported by the evidence on
record. the said finding was reversed by the high companyrt on
the basis of a reassessment of the said evidence. we find
it difficult to agree with the reasons given the high companyrt
for embarking on this reassessment of evidence. although
the appellate authority has observed that there in no
specific pleading by the respondent in the companynter that the
bona fide requirement set up by the appellant is false but
in spite of the said observation the appellate authority has
examined whether the said claim of the appellant is false
and after companysidering the evidence adduced by both the
parties the appellate authority has found that the claim of
the appellant is number false. similarly the high companyrt is
number right in holding that in its approach to the question of
bona fides of the claim made in the petition the appellate
authority has number companysidered the cumulative effect of all
the facts and circumstances established in the case. on a
consideration of the various circumstances the appellate
authority chose
of accept the testimony of the appellant as p.w.1 as
against that of the respondent as r.w.1 and on that basis
found that the appellant had succeeded in establishing the
bona fide need set up by him. the companysideration which weighed with the high companyrt in
taking a view companytrary to that taken by the appellate
authority do number in our opinion justify interference in
exercise of revisional jurisdiction. that the appellant has
been living with his son in the house belonging to him  son
cannumber lead to the inference that the claim of the appellant
that he wants to live in a house of his own is false and number
bonafide. the same is true about the building in question
number having the requisite facilities and being number in a fit
condition for residence because the appellant can make
suitable repairs and alterations in the same to make it fit
for residential purposes. the claim of the landlord that he
needs the building bona fide for his personal occupation
cannumber be negatived on the ground that the building require
repair and alterations before the landlord can occupy the
same. in devaky v. krishnankutty  supra  it has been
observed
once the landlord establishes that he bona
fide required the building for his occupation or
the occupation of any member of his family he can
recover possession of the building from the tenant
irrespective of the fact whether he would occupy
the same with or without making any alterations.  p.673
we are in agreement with this view which is in
consonance with the decision of this companyrt in ramniklal
pitambrardas mehta v. indradaman amratlal sheth 1964 8
scr 1. in that case it has been laid down
the mere fact that he intends to make
alterations in the house either on account of his
sweet will or on account of absolute necessity in
view of the companydition of the house does number affect
the question of his requiring the house bona fide
and reasonably for his occupation when he has
proved his need for occupying the house. there is
numbersuch prohibition either in the language of
cl.  g  or in any other provision of the act to the
effect that the landlord must occupy the house for
residence without making any alterations in it. there companyld number be any logical reason for such a
prohibition.  p.5
similarly in sub-section  3  of section 11 there is no
prohibition that
a landlord must occupy the house for residence without
making any alterations in it. the finding recorded by the
appellate authority after companysidering the pleadings and
evidence on record that the appellant has succeeded in
establishing that he needs the building bona fide for his
own occupation must therefore be restored. the high companyrt was however right in taking the view
that before passing a decree for eviction on the ground of
bona fide need of the landlord under section 11 3  of the
act it was necessary for the appellate authority to
consider whether the tenant was entitled to the benefit of
the second proviso to sub-section  3  of section 11 of the
act and that the appellate authority has omitted to companysider
the matter from this angle. the said proviso precludes the
passing of an order for eviction of a tenant who is
depending for his livelihood mainly from the trade or
business carried on in such building and there is numberother
suitable building available in the locality for him to carry
on such trade or business. after adverting to the second
proviso to sub-section  3  of section 11 the rent
controller has observed
the respondent has proved that he is depending
upon the income from the business companyducted in the
petition schedule building for his livelihood. the
petitioner attempted to prove that the respondent
is having other hotels elsewhere in the city but
without any success. though the respondent has number
taken any steps to prove the number-availability of
other suitable buildings in the locality by
summoning the accommodation companytroller i do number
thing that was a fatal lapse on the part of the
respondent because he has adduced evidence in that
regard through his witnesses. the learned rent companytroller has however number recorded
any definite finding on this question because he had companye to
the companyclusion that the appellant had failed to prove the
bona fide need of the buildings. since the appellate
authority had reversed the finding recorded by the rent
controller on bona fide need of the appellant for the
building it was necessary for the appellate authority to
have companysidered the matter in the light of the second
proviso to sub-section  3  of section 11 and it should have
recorded a finding on the question whether the respondent
could invoke the protection of the said proviso. in the
circumstances we are of the view
that the matter should be remanded to the appellate
authority for companysidering the question whether the
respondent can invoke the protection of the second proviso
to section 11 3  of the act. in the result the appeal is allowed. the judgment and
order of the kerala high companyrt dated january 4 1991 is set
aside.


civil appellate jurisdiction civil appeal number 356 of 58.
appeal by special leave from the judgment and order dated
january 21 1955 of the bombay high companyrt in civil revision
application number 813 of 1953.

t. desai s. n. andley and rameshwar nath for
appellant. n. shroff for the respondent. 1961. august 9. the judgment of the companyrt was delivered by
shah j.-pot number 68 town planning scheme number 1 jamalpur
ahmedabad part of survey number 405 mouje rajpur-hirpur
admeasuring approximately 38 gunthas was owned by bai jekor
and her two sisters. by a lease dated october 15 1934
this plot of land was granted in lease by the owners in
perpetuity to gajjar ramanlal gordhandas and his brother at
annual rental of rs.558. the lesseesgajjars-sublet by a
lease dated february 7 1946 the plot also in perpetuity to
narsaji chenaji marwadihereinafter referred to as the
respondent-at an annual rental of rs. 1425. the respondent
by deed dated april 25 1947 sublet the plot to subhadra-
hereinafter referred to as the appellant--it an annual
rental of rs. 2225. in all these three deeds it was
recited that the lessees may companystruct buildings on the land
and for obtaining sanction in that behalf the lessors shall
make applications to the companylector or any other authority
for that purpose. the plot on the dates of the three leases
was assessed for agricultural purposes. under the bombay
land revenue companye v of 1879 land assessed for agricultural
purposes may be used for number-agricultural purpose if
permission in that behalf is granted by the companylector. the
appellant applied for permission for companyversion of user of
the land to number-agricultural purposes and the companylector of
ahmedabad by order dated numberember 11 1949 sanctioned
conversion of the user. thereafter the appellant by
application dated october 27 1950 applied to the companyrt of
small causes. ahmedabad for fixation of standard rent of
the plot under s. 11 of the bombay rents hotel and lodging
houses rates companytrol act 57 of 1947-hereinafter referred to
as the act. the respondent companytended that the land when
granted in lease being agricultural the provisions of
bombay act did number apply thereto ad the application was
number maintainable. the
court of small causes upheld the companytention of the
respondent and dismissed the application. this order was
confirmed in appeal to the district companyrt at ahmedabad and
in a revision application to the high companyrt of judicature at
bombay. the appellant has with special leave appealed to
this companyrt against the order of the high companyrt. it is companymon ground that till numberember 11 1949 the plot
was assessed for agricultural purposes under the bombay land
revenue companye. in the year 1947 the plot was undoubtedly
lying fallow but on that account the user of the land
cannumber be deemed to be altered. user of the land companyld only
be altered by the order of the companylector granted under s. 65
of the bombay land revenue companye. section 11 of the bombay
act 57 of 1947 enables a companypetent companyrt upon application
made to it for that purpose to fix standard rent of any
premises. but s.11 is in part 11 of the act and by s. 6 cl.  1  it is provided that in areas specified in schedule i
part ii applies to premises let for residence education
business trade or storage. there is numberdispute that part
ii applied to the area in which the plot is situate but
before the appellant companyld maintain an application for
fixation of standard rent under s. 11 she had to establish
that the plot of land leased was premises within the
meaning of s. 5  8  of the act and that it was let for
residence education business trade or storage. for the
purposes of this appeal it is unnecessary to companysider
whether the plot was let for residence education business
trade or storage. the expression premises is defined by
s. 5  8  and the material part of the definition is
in this act unless there is anything
repugnant to the subject or companytext x x x x
 8  premises means-
 a  any land number being used for agricultural
purposes
 b  any building or part of a building let
separately  other than a farm building
including-

the garden grounds garages and out-
houses if any appurtenant to such building or
part of a building

any furniture i supplied by the landlord
for use in such building or part of a
building

any fittings affixed to such building or
part of a building for the more beneficial
enjoyment thereof. x x x x
reading s. 5 sub-cl.  8  with s. 6 1  it is manifest that
part if of the act can apply in areas specified in sch.