civil appellate jurisdiction civil appeals number. 2221-
2225 and 2524 of 1972.
from the judgment and orders dated the 18-11-71 29-3-
1972 and 5-2-1972 of the delhi high companyrt in l.p. number 53/71
and civil writ petitions number. 612 640 643 and 649/71
281/72 and 1052 of 1971 respectively. k. sen sarjoo prasad balram senghal and c. p. lal
for the appellants in cas 2221-2225/72

sen s.p. nayar and m.n. shroff for respondents 2-3
 in cas. 2221-2225/72  for respondents 1-4 in. c.a. 1801 . v. gupte mrs. leila sait and u. k. kaithan for
interveners  in cas. 2221-2225/72  and appellants  in cas. 2524/72 . c. bhandare sardar bahadur saharya b. n. kirpal
and v. b. saharya for the appellant in ca 1801/72. the judgment of the companyrt was delivered by
sarkaria j. whether the numberification number sro-2908
dated december 7 1957 issued by the central government in
purported exercise of its powers under s. 2 of the union
territories  laws
act 1950 is ultra vires the central government is the
principal question that arises in these appeals which will
be disposed of by a companymon judgment. the question has arisen in these circumstances
section 2 of the part states  laws  act 1950
empowered the central government to extend by numberification
in the official gazette to any part state or to any part of
such state with such restrictions and modifications as it
thinks fit any enactment which is in force in a part a
state. in exercise of this power the central government by
a numberification number sro 615 dated the 28th april 1951
extended to the then part state of delhi the bengal finance
 sales-tax  act 1941  for short the bengal act  with
inter alia these modifications
in sub-section  2  of section 6-
 a  . . .  b  for the words add to the schedule the words
add to or omit or otherwise amend the schedule shall
be substituted
for the schedule of the bengal act this numberification
substituted a modified schedule of goods exempted under s.

the relevant items in the modified schedule were as
follows

fruits fresh and dried  except when sold in
sealed companytainers . pepper tamarind and chillies. turmeric. ghee. cloth of such description as may from time to
time be specified by numberification in the
gazette companyting less per yard than rs. 3/- or
such other sum as may be specified. . 21a. knitting wool. section 6 of the bengal act after its extension to
delhi as modified by the said numberification reads thus
6 1 numbertax shall be payable under this act on the
sale of goods specified in the first companyumn
of the schedule subject to the companyditions and
exceptions if any set out in the
corresponding entry in the second companyumn
thereof. the state government after giving by
numberification in the official gazette number less
than 3 months numberice of its intention so to
do may by like numberification
add to or omit from or otherwise amend the
schedule and thereupon the schedule shall be
deemed to be amended accordingly.  emphasis
supplied
by a numberification dated 1-1-1951 in sub-section  1
of s. 6 the words the first companyumn of were omitted and
for the words in the companyresponding entry in the second
column thereof the word therein was substituted. by a numberification companyntry liquor was included in the
schedule as item number 40 of exempted goods with effect from
19 1 1952.
on 1-11-1956 as a result of the companying into force of
the states reorganization act 1956 and the companystitution
 seventh amendment  act 1956 part states were abolished. part state of delhi became a union territory and the delhi
legislative assembly was also abolished. in 1956 part
state  laws  act 1950  hereinafter referred to as laws act
also became me union territories  laws  act 1950 with
necessary adaptations. on 1-12-1956 parliament passed the bengal finance
 sales-tax   delhi amendment  act 1956 which introduced
amendments in different sections of the bengal act as
applicable to delhi. it made only two changes in s. 6
firstly the word schedule wherever it occurred was
replaced by the words second schedule. secondly the words
central government were substituted for the words state
government. on december 7 1951 in the gazette of india
extraordinary there appeared a numberifications which reads as
below

r.o 3908-in exercise of the powers companyferred
by section 2 of the union territories  laws  act 1950
 30 of 1950  the central government hereby makes the
following amendment in the numberification of the
government of india in the ministry of home affairs number

r.o 615 dated the 28th april 1951  extending to
the union territory of delhi and the bengal finance
 sales tax  act 1941 subject to certain
modifications  namely -
in the said numberification in the modifications to
the bengal act aforesaid in item 6  relating to sub-
section  2  of section  6  after sub-item  a  the
following sub-item shall be inserted namely -
 aa  for the words number less than three months
numberice the words such previous numberice as it
considers reasonable shall be substituted. the vires of this numberification dated 7-12-1957 is me
subject of primary challenge in these appeals  hereinafter
it will be referred to as the impugned numberification . item 17 in the second schedule of the bengal act was
amended with effect from december 14 1957 by numberification
number sro 3958 as under

all varieties of companyton woollen rayon or
artificial silk fabric but number including real silk
fabrics. companyditions subject to which tax shall number be
payable
in respect of tobacco-cotton fabrics rayon or
artificial silk fabrics and woollen fabrics as defined
in item 9 12 12a 12b at the first schedule to the
central excises and salt act 1944  i of 1944  included
in entries  a  and  c  above numbertax under the bengal
finance  sales tax  act 1941 shall be payable in the
union territory of delhi only if additional duties of
excise have been levied on them under the additional
duties of excise  goods of special importance  act
1957.
the aforesaid companydition was withdrawn by numberification
number gsr 203 dated 1-4-1958.
by numberification number gsr 202 dated 1-4-1958 the
central government withdrew the exemption of companyntry liquor
from tax by omitting item number 40 from the second schedule. by numberification number gsr 1076 dated 19-9-1959 the
central government withdrew the exemption from tax of items
8 11 14 and 21a by omitting them from the second schedule
with effect from 1-10-1959.
on 1-10-1959 the bengal.  sales-tax delhi amendment
act 1959  act xx of 1959  came into force whereby
parliament made some amendments in different sections of the
bengal act but left s. 6 untouched. by a numberification number gsr 964 dated 16-6-1966 numberice
was given that item 17 of the second schedule would be
substituted with effect from 1-7-1966 as follows
item-17-all varieties companyton woollen nylon
rayon pure silk or artificial silk fabrics but
excluding durries druggets and carpets. the proposed amendment was given effect to from 1-7-
1966 by numberification number gsr 1061 dated 29-6-66. one result
of this amendment was that exemption of durries from tax was
withdrawn while such exemption was among others extended
to pure-silk. by a numberification gsr 1038 dated 14-7-1970 numberice was
given that item 17 in the second schedule would be
substituted with effect from 1-8-1970 as follows

all varieties of companyton fabrics rayon or
artificial silk fabrics and woollen fabrics but number
including durries druggets and carpets. such substitution of item 17 was made with effect from
1-8-70 by numberification gsr 1119 dated 31-7-1970. one result
of this numberification was that the exemption of pure-silk
from tax was withdrawn. the appellants in civil appeal number 2221 of 1972 are
dealers in durries. they feel aggrieved by the numberification
gsr 1061 dated 29-6-1966 whereby exemption of durries from
sales-tax was withdrawn. the appellants in civil appeals 2222 2223 and 2225 of
1972 deal in knitting wool. their cause of action arose when
exemption of knitting wool was withdrawn by numberification
dated 19-9-1959 w.e.f. 1-10-1959. the appellants in civil
appeals 2524 of 1972 deal inter alia in pure silk. they are
aggrieved by numberification dated 31-7-1970 by which
exemption of pure-silk was withdrawn w.e.f. 1-8-1970.
the appellants in civil appeal number 2224 of 1972 is a
kiryana dealer. he feels aggrieved by the numberification dated
19-9-1959 whereby items 8 11 and 14 were deleted from the
second schedule with effect from 1-10-1959.
the appellants in civil appeal number 1801 of 1972 are
licensed vendors of companyntry liquor. they feel adversely
affected by numberification gsr 1076 dated 19-9-1959 whereby
exemption of companyntry liquor from tax was withdrawn with
effect from 1-10-1959.
several writ petitions were filed in the high companyrt to
question the validity of the government action withdrawing
the exemptions with numberice far less than three months. a
learned judge of the high companyrt allowed eight of these
petitions by a companymon judgment recorded in civil writ 574-d
of 1966 lachmi narain v. union of india and others. against
that judgment the revenue carried appeals under clause 10
of the. delhi high companyrt act 1966 to a bench of the high
court. in the meanwhile more writ petitions  c. ws. 593 to
652 792 to 806 of 1971  were instituted in which the same
question was involved. the division bench by a companymon
judgment allowed the appeals and dismissed the writ
petitions. the writ petitioners have number companye in appeal to this
court on the basis of a certificate granted by the high
court under article 133  1   a  and  c  of the companystitution. in the high companyrt the validity of the withdrawal of the
exemptions was challenged on these grounds

the power given by s. 2 of the laws act to
the central government to extend enactments
in force in a state to a union territory with
such restrictions and modifications as it
thinks fit companyld be exercised only to make
such modifications in the enactment as were
necessary in view of the peculiar local
conditions. the modification in s. 6 2  of
the bengai act made by sro 3908 dated
7-10-1957 was number necessitated by this
reason. it was therefore ultra vires s. 2 of
the laws act

such a modification companyld be made only once
when the bengal act was extended to delhi in
1951. numbermodification companyld be made after
such extension. the modification companyld number change the policy
of the legislature reflected in the bengal
act. the impugned modification was companytrary
to it and

the modifications giving numberice to withdraw
the exemptions and the numberifications issued
pursuant thereto withdrawing the exemptions
from sales-tax with respect to durries ghee
 and other items relevant to these petitions
were void as the statutory numberice of number less
than three months as required by s. 6 2
prior to its modification by the impugned
numberification of 7th december 1957 had number
been given. finding on all the four grounds in favour of the writ
petitioners lie learned single judge declared that the
purported modification of s. 6 2  of the bengal finance
 sales-tax  act 1941 by the government of indias
numberification number sro 3908 dated 7th december 1957 was
ineffective and s. 6 2  companytinues to be the same as before
as if it was number so modified at all. in companysequence he
quashed the government numberifications gsr 964 dated 16-6-
1966 and gsr 1061 dated 29-6-1966 because they were number in
compliance with the requirement of s. 6 2  of the bengal
act. the companytentions canvassed before the learned single
judge were repeated before the appellate bench of the high
court. the bench did number pointedly examine the scope of the
power of modification given to the central government by
s. 2 of the laws act with specific reference to the purpose
for which it was companyferred and its precise limitations. it
did number squarely dispel the reasoning of the learned single
judge that the power of modification is an integral part of
the power of extension and cannumber therefore be exercised
except for the purpose of the extension. it refused to
accept that reasoning with the summary remark-from the
extracts quoted by the learned single judge from the
judgment of the supreme companyrt in re delhi laws act and from
the judgment in rajnarain singh v. the chairman patna
administration companymittee patna and anr. the principle
deduced by the learned judge does number appear to follow. we
are therefore number inclined as at present advised to support
the above observations. the bench however hastened to add
however since the matter was number argued at great
length and the appellants companynsel rested his
submissions on the other aspects of the case we would
number like to express
any definite opinion on the question as to whether the
power of making any modifications or restrictions in
the act can only be exercised at the time of extending
the act and that it cannumber be done subsequently by the
central government in exercise of its power. seeking support from the observations of this companyrt in
raza buland sugar company limited v. municipal board rampur 1
the bench held that what is mandatory in s. 6 2  is the
requirement as to the giving of reasonable numberice of the
governments intention t  amend the second schedule for
the information of the public and that numberspecial
significance or sanctity is attached to the span of time of
three months provided in subsection  2  of s. 6. the bench
found that since the withdrawals of the exemptions in
question had been made after reasonable numberice the same
were number invalid. however the main ground on which the decision of the
bench rests is that the infirmity if any in the impugned
numberification dated 7-12-1957 had been cured and rectified
when parliament while enacting the amendment act 1959  act
number 70 of 1959  put its seal of approval to the curtailed
period of numberice. as such the curtailed period of numberice
shall be taken to have been provided by parliament on the
ratio of supreme companyrts decision in venkatrao esajirao
limberkars case. apart from the grounds taken in their writ petitions
the learned companynsel for the appellants have tried to raise
before us anumberher ground under the garb of what they styled. as merely an additional argument. they number seek to
challenge the vires of the numberification sro 615 dated the
28th april 1951 in so far as it relates to the insertion in
sub-section  2  of s. 6 of that act between the words add
to and the schedule of the words or omit or otherwise
amend. it is argued that this insertion was beyond the
power of modification companyferred on the central government by
s. 2 of the laws act. the point sought to be made out is
that if the insertion made by the numberification dated 28-4-
1951 in sec. 6 2  was ineffective and number est in the eye of
law the central government would have numberpower to omit
anything from the exempted goods itemised in the schedule. it is argued that under s. 6 2  sans this insertion the
central government was empowered only to add to and number
omit from the exempted items enumerated in the schedule
and companysequently the withdrawal of the exemptions in
question was ultra vires the central government. the entertainment of this plea at this stage is stoutly
opposed by shri b. sen learned companynsel for the revenue. we are number inclined to permit the appellants to add to
the list of impugned numberifications number in section appeal. in their writ petitions the appellants did number challenge
the validity of the numberification dated 28-4-51. they never
raised this point before the learned
single judge. of companyrse before the appellate bench an
argument was addressed on this point but it does number appear
to have been pressed. the bench numbered
in the present appeal the bengal act as extended
by sro 615 dated the 28th april 1951 did number suffer
from any infirmity. it is companyceded by the learned
counsel for the respondent that the central
government at the time it extended e the bengal act
was companypetent to introduce such modification and
restrictions as it thought fit. the certificate under art. 133 of the companystitution was
neither sought number granted on any ground touching the
validity of the numberification dated 28-4-1951. in the face
of all this it is number too late for the appellants to companymit
a volte face. accordingly we decline to entertain this new
ground of challenge. the learned companynsel for the parties have more or less
reiterated the same companytentions which they had advanced in
the high companyrt. on behalf of the appellants it is companytended that the
power of modification companyferred on the central government by
s. 2 of the laws act is number an unfettered power of delegated
legislation but a subsidiary power companyferred for the limited
purpose of extension and application to a union territory
an enactment in force in a state. it is maintained that only
such modifications are permissible in the exercise of that
power which are necessary to adapt and adjust such enactment
to local companyditions. according to shri ashok sen the power given by s. 2 is
a power of companyditional legislation which is different from
the power of delegated legislation. it is submitted that it
is number a recurring power it exhausts itself on extension
and in numbercase this power can be used to change the basic
scheme and structure of the enactment or the legislative
policy ingrained in it. the submission is that the impugned
numberification dated 7-12-1957 is bad because it has been
issued more than 61 years after the extension of bengal act
and it attempts to change the re- rquirement of s. 6 2  as
to number less than three months numberice which p is the
essence of the whole provision. reference has been made to this companyrts opinion in re
delhi laws act  supra  and the decision in raj narain singh
case  supra . shri ashok sen further submits that by the amending act
20 of 1959 parliament did number put its seal of approval on
the impugned numberification or the changes sought to be made
by it in s. 6 of the bengal act. it is stressed that the
amending act of 1959 did number touch s. 6 at all and
therefore it companyld number be said with any stretch of
imagination that parliament had referentially or impliedly
incorporated or approved the purported change made by the
impugned numberification in the bengal act. as against the above shri b. sen the learned companynsel
for the revenue submits that the impugned numberification does
number change the essential structure or the policy embodied in
s. 6 2  of the bengal act. according to companynsel the policy underlying s. 6 2  is that
reasonable numberice of the governments intention to add to or
omit anything from the second schedule must be given by
publication in the official gazette. it is maintained that
the requirement as to number less than three months numberice
in the section was number a matter of policy but one of detail
or expedience it was only directory and the modification
made by the impugned numberification did number go beyond
adjusting and adapting it to the local companyditions of delhi. bengal it is pointed out is a big far-flung state while
the territory of delhi is a small companypact area and
therefore it would number be necessary or unreasonable to give
a numberice of less than three months for every amendment of
the schedule. reliance has been placed on this companyrts
dictum in raza buland sugar companys case  supra . it is argued
that the power to add or omit from the second schedule
conferred on the government is in companysonance with the
accepted practice of the legislature that it is usual for
the legislature to leave a discretion to the executive to
determine details relating to the working of taxation laws
such as the selection of persons on whom the tax is to be
levied or rates at which it is to be charged in respect of
different classes of goods and the like. reference has been
made to the observations of this companyrt in pt. benarsi das
bhanumber v. state of madhya pradesh in the companytext of s. 6 2
of the central provinces and berar sales tax act 1947.
shri b. sen further companytends that the power of
modification given by s. 2 of the laws act does number exhaust
itself on first exercise it can be exercised even
subsequently if through oversight or otherwise at the time
of extension of the enactment the central government fails
to adapt or modify certain provisions of the extended
enactment for bringing it in accord with local companyditions. in this companynection support has been sought from the
observations of fazal ali j. at p. 850 of the report in re
delhi laws act  supra . our attention has also been invited
to s. 21 of the general clauses act which according to
counsel gives power to the central government to add to
amend vary or rescind any numberification etc. if the power to
do so does number run companynter to the policy of the legislature
or affect any change in its essential features. learned companynsel has further tried to support the
reasoning of the appellate bench of the high companyrt that
whatever infirmity may have existed in the impugned
numberification and the modification made there by in s. 6 2
it was rectified and cured by parliament when it passed the
amendment act 20 of 1959. it is urged that the bengal act
together with the modifications made by numberifications dated
28-4-51 and 7-12-1957 must have been before parliament
when it companysidered and passed the amendment act of 1959. our
attention has been invited to its preamble which is to the
effect an act further to amend the bengal finance  sales-
tax  act 1941 as in force in the union territory of
delhi and also to the words as in forcer in the union
territory of delhi in s. 2 of the amending act. reference
has been made to this companyrts decisions in venkatrao
esajiraos case  supra  and gwalior rayon silk mfg.  wvg.  company limited the assistant companymissioner of sales-tax and ors. an alternative argument advanced by shri b. sen is that
if in s. 6 2  the requirement as to number less than three
months numberice was mandatory and a matter of legislative
policy then the exemptions from tax granted to durries
pure silk etc. after the issue o the impugned numberification
must be treated number est and void ab initio inasmuch as the
amendments of the second schedule whereby those exemptions
were granted were made without companyplying with the
requirement of number less than three months numberice. it is
argued that if this requirement was a sine qua number for
amendment of the second schedule it companyld number be treated
mandatory in one situation and directory in anumberher. if it
was mandatory then companypliance with it would be absolutely
necessary both for granting an exemption and withdrawing an
exemption from tax. in this view of the matter according to
shri b. sen the withdrawal of the exemption through the
impugned numberification was a mere formality the
numberifications simply declared the withdrawal of something
which did number exist in the eye of law. appellants cannumber
therefore have any cause of grievance if the invalid and
still-born exemptions were withdrawn by the questioned
numberifications. in reply to this last argument learned companynsel for the
appellants submit that this ground of defence was number
pleaded by the revenue in its affidavit before the learned
single judge. this according to the companynsel was a question
of fact which required evidence for its determination and
was therefore required to be pleaded. since the respondents
did number do so they should number have been allowed to take it
for the first time at the time of arguments. even otherwise-
proceeds the argument-the respondents are number companypetent to
take this stand which is violative of the basic canumber of
natural justice according to which numberparty can be allowed
to take advantage of its own wrong. it is stressed that the
object of the requirement of number less than three months
numberice was to afford an opportunity to persons likely to be
adversely affected to raise objections against the proposed
withdrawal or curtailment of an exemption from tax. that
being the case only the persons aggrieved companyld have the
necessary locus standi to companyplain of a number-compliance with
this requirement. in re delhi laws  supra  this companyrt inter alia
examined the companystitutional validity of s. 2 of the laws act
in the light of general principles relating to the nature
scope and limits of delegated legislation. section 2 as it then stood was as follows
the central government may by numberification in
the official gazette extend to any part state  other
than companyrg and the andaman and nicobar islands  or to
any part of such state with such restrictions and
modifications as it thinks fit any enactment which is
in force in a part a state at the date of the
numberification and provision may be made in any enactment
so extended for the repeal or amendments of any
corresponding law  other than a central act  which is
for the time being applicable to that part state. the companyrt by a majority held that the first part of
this section which empowers the central government to extend
to any part state or to any part of such state with such
modifications and restrictions as it
thinks fit any enactment which is in force in a part a
state is intra vires and that the latter part of this
section which empowers the central government to make
provision in any enactment extended to a part state for
repeal or amendment of any law  other than a central act
which is for the time being applicable to that part state
is ultra vires. companysequent upon this opinion the latter
part of the section was deleted by s. 3 of the repealing and
amending act 195  act xlvili of 1952  with effect from
2-8-1951.
the majority opinion in upholding the validity of the
first portion of s. 2 of the laws act drew a good deal from
the observations of the privy companyncil in queen v. burah
wherein it was said
if what has been done is legislation within the
general scope of the affirmative words which give
the power and if it violates numberexpress companydition
or restrictions by which that power is limited
it is number for any companyrt of justice to enquire
further or to enlarge companystructively those
conditions and restrictions. x x x
where plenary powers of legislation exist as to
particular subjects whether in an imperial or in
a provincial legislature they may  in their
lordships judgment  be well exercised either
absolutely or companyditionally. legislation
conditional on the use of particular powers or on
the exercise of a limited discretion entrusted by
the legislature to persons in whom it places
confidence is numberuncommon thing and in any
circumstances it may be highly companyvenient.  emphasis supplies
before proceeding further it will be proper to say a
few words in regard to the argument that the power companyferred
by s. 2 of the laws act is a power of companyditional
legislation and number a power of delegated legislation. in our
opinion numberuseful purpose will be served to pursue this
line of argument because the distinction propounded between
the two categories of legislative powers makes no
difference in principle. in either case the person to whom
the power is entrusted can do numberhing beyond the limits
which circumscribe the power he has to act-to use the words
of lord selborne-within the general scope of the
affirmative words which give the power and without
violating any express companyditions or restrictions by which
that power is limited. there is numbermagic in a name. whether
you call it the power of companyditional legislation as privy
council called it in burahs case  supra  or ancillary
legislation as the federal companyrt termed it in choitram v.
commissioner of income-tax bihar or subsidiary
legislation as kania c.j. styled it or whether you
camouflage it under the veiling name of administrative or
quasi-legislative power-as professor cushman and other
authorities have done it-necessary for
bringing into operation and effect an enactment the fact
remains that it has a companytent howsoever small and
restricted of the law making power itself. there is ample
authority in support of the proposition that the power to
extend and carry into operation an enactment with necessary
modifications and adaptations is in truth and reality in the
nature of a power of delegated legislation. in re delhi
laws act  supra  s.r. das j. said that on strict analysis it
was numberhing but a delegation of a fractional legislative
power. anglin j. in grays case regarded this what is
called companyditional legislation as a very companymon instance
of limited delegation. more or less to the same effect is
the view taken by evatt j. of australia in dignams case. prof. kennedy  vide his treatise companystitution of canada
2nd edn. p. 463  is also of opinion that companyditional
legislation is a form of delegation. we do number want to multiply authorities number wish to
carry this academic discussion to a final companyclusion because
it is number necessary for solution of the problem in hand. in the instant case the precise question with which we
are faced is whether the purported substitution of the words
such previous numberice as is companysiders reasonable for the
words number less than three months numberice in s. 6 2  by the
impugned numberification dated 7th december 1957 was in
excess of the power of modification companyferred on the
central government by s. 2 of the laws act. this question has to be answered in the light of the
principles enunciated by this companyrt in re delhi laws act
relating to the nature and scope of this power. out of the majority who upheld the validity of this
provision of s. 2 of the laws act with which we are
concerned fazal ali j. explained the scope of the words
much modifications as it thinks fit in s. 2 thus
these are number unfamiliar words and they are often used
by careful draftsmen to enable laws which are
applicable to one place or object to be so adapted as
to apply to anumberher. the power of introducing necessary
restrictions and modifications is incidental to the
power to apply or adapt the law and in the companytext in
which the provision as to modification occurs it cannumber
bear the sinister sense attributed to it. the
modifications are to be made within the framework of
the act and they cannumber be such as to affect its
identity or structure or the essential purposes to be
served by it. the power to modify certainly involves a
discretion to make suitable changes but it would be
useless to give an authority the power to adapt a law
without giving it the power to make suitable changes. vivian bose j. also observed in a similar strain at p.
1124
the power to restrict and modify does number import the
power to make essential changes. it is companyfined to
alterations of a minumber character such as are necessary
to make an act intended for one area applicable to
anumberher and to bring it into harmony with laws already
in being in the state or to delete portions which are
meant solely for anumberher area. to alter the essential
character of an act or to change it in material
particulars is to legislate and that namely the
power to legislate all authorities are agreed cannumber
be delegated by a legislature which is number unfettered. mukherjea j. was of the view that the essential
legislative function which companysists in the determination or
choosing of the legislative policy and of formally enacting
that policy into a binding rule of companyduct cannumber be
delegated. dealing with the companystruction of the words
restrictions and modification in the laws act the
learned judge said at pages 1004-10o6
the word restrictions  companynumberes limitation
imposed on a particular provision so as to restrain its
application or limit its scope it does number by any
means involve any change in the principle. it seems to
me that in the companytext and used alongwith the word
restriction the word modification has been
employed also in a companynate sense and it does number
involve any material or substantial alteration. the
dictionary meaning of the expression to modify is to
tone down or to soften true rigidity of the thing
or to make partial changes without any radical
alteration. it would be quite reasonable to hold that
the word modification in s. 7 of the delhi laws act
 which is almost identical with the present s. 2 laws
act  means and signifies changes of such character as
are necessary to make the statute which is sought to be
extended able to the local companyditions of the province. i do number think that the executive government is
entitled to change the whole nature or policy
underlying any particular act or to take different
portions from different statutes and prepare what has
been described before us as amalgam of several laws. these things would be beyond the scope of the section
itself.  emphasis supplied . r. das j.  as he then was  delineated the scope of
the power of modification given under s. 7 of the delhi
laws act 1912  for short the delhi act  at p. 1089 as
follows
it may well be argued that the intention of section 7
of the delhi laws act was that the permissible
modifications were to be such as would after
modification leave the general character of the
enactment intact. one of the meanings of the word
modify is given in the oxford dictionary vol. i page
1269 as to alter without radical transformation. if
this meaning is given to the word modification in
section 7 of the delhi laws act. then the modifications
contemplated
thereby were numberhing more than adaptations which were
included in the expressions mutatis mutandis and the
restrictions limitations or proviso mentioned in the
several instances of companyditional legislation referred
to by the privy companyncil  in burahs case .  emphasis supplied parenthesis added
it is to be numbered that the language of s.7 of the delhi
act was substantially the same as that of the first portion
of s. 2 of the part c state laws act as it then stood. what
das j. said about the scope of restrictions and
modifications in the companytext of s. 7 of the delhi act
substantially applies to the ambit and meaning of these
words occurring in s. 2 of the laws act. again in rajnarainsinghs case  supra  vivian bose j.
speaking for the companyrt summed up the majority view in
regard to the nature and scope of delegated legislation in
re delhi laws  supra  thus
in our opinion the majority view was that an executive
authority can be authorised to modify either existing
or future laws but number in any essential feature. exactly what companystitutes an essential feature cannumber be
enunciated in general terms and there was some
divergence of view about this in the former case but
this much is clear from the opinions set out above it
cannumber include a change of policy. bearing in mind the principles and the scope and
meaning of the expression restrictions and modifications
explained in delhi laws act let us number have a close look at
s. 2. it will be clear that the primary power bestowed by
the section on the central government is one of extension
that is bringing into operation and effect in a union
territory an enactment already in force in a state. the
discretion companyferred by the section to make restrictions
and modifications in the enactment sought to be extended
is number a separate and independent power. it is an integral
constituent of the powers of extension. it cannumber be
exercised apart from the power of extension. this is
indubitably clear from the preposition with which
immediately precedes the phrase such restrictions and
modifications and companyjoins it to the principal clause of
the section which gives the power of extension. according to
the shorter oxford dictionary one meaning of the word
with  which accords here with the companytext  is part of
the same whole. the power given by s. 2 exhausts itself on extension of
the enactment it cannumber be exercised repeatedly or
subsequently to such extension. it can be exercised only
once simultaneously with the extension of the enactment. this is one dimension of the statutory limits which
circumscribe the power. the second is that the power cannumber
be used for a purpose other than that of extension. in the
exercise of this power only such restrictions and
modifications can be validly engrafted in the enactment
sought to be extended which are necessary to bring it into
operation and effect in the union territory. modifications
which are number necessary for or ancillary and subservient to
the purpose
of extension are number permissible. and only such
modifications can be legitimately necessary for such
purpose as are required to adjust adapt and make the
enactment suitable to the peculiar local companyditions of the
union territory for carrying it into operation and effect. in the companytext of the section the words restrictions and
modifications do number companyer such alterations as involve a
change in any essential feature of the enactment or the
legislative policy built into it. this is the third
dimension of the limits that circumscribe the power. it is true that the word such restrictions and
modifications as it thinks fit if companystrued literally and
in isolation appear to give unfettered power of amending
and modifying the enactment sought to be extended. such a
wide companystruction must be eschewed lest the very validity of
the section becomes vulnerable on account of the vice of
excessive delegation. moreover such a companystruction would be
repugnant to the companytext and the companytent of the section
read as a whole and the statutory limits and companyditions
attaching to the exercise of the power. we must therefore
confine the scope of the words restrictions and
modifications to alterations of such a character which keep
the inbuilt policy essence and substance of the enactment
sought to be extended intact and introduce only such
peripheral or insubstantial changes which are appropriate
and necessary to adapt and adjust it to the local companyditions
of the union territory. the impugned numberification dated 7-12-1957
transgresses the limits which circumscribe the scope and
exercise of the power companyferred by s. 2 of the laws act at
least in two respects. firstly the power has number been exercised
contemporaneously with the extension or for the purposes of
the extension of the bengal act to delhi. the power given by
s. 2 of the laws act had exhausted itself when the bengal
act was extended with some alterations to delhi by
numberification dated 28-4-1951. the impugned numberification has
been issued on 7-12-1957 more than 6 1/2-years after the
extension. there is numberhing in the opinion of this companyrt rendered
in re delhi laws act  supra  to support mr. b. sens
contention that the power given by s. 2 companyld be validly
exercised within one year after the extension. what appears
in the opinion of fazl ali j. at page 850 is merely a
quotation from the report of the companymittee on ministers
powers which companysidered the propriety of the legislative
practice of inserting a removal of difficulty clause in
acts of british parliament empowering the executive to
modify the act itself so far as necessary for bringing it
into operation. this device was adversely companymented upon. while some critics companyceded that this device is partly a
draftsmans insurance policy in case he has overlooked
something  e.g. sir thomas carr page 44 of his book
concerning english administrative law  others frowned
upon it and nicknamed it as henry viii clause after the
british monarch who was a numberorious personification of
absolute despotism. it was in this perspective that the
committee on ministers powers examined this practice and
recommended
 first that the adoption of such a clause
ought on each occasion when it is on the initiative of
the minister in charge of the bill proposed to
parliament to be justified by him upto the essential. it can only be essential for the limited purpose of
bringing an act into operation and it should
accordingly be in most precise language restricted to
those purely machinery arrangements vitally requisite
for that purpose and the clause should always companytain
a maximum time-limit of one year after which the power
should lapse. it may be seen that the time-limit of one year within
which the power under a henry viii clause should be
exercisable was only a recommendation and is number an
inherent attribute of such power. in one sense the power of
extension-cum-modification given under s. 2 of the laws act
and the power of modification and adaptation companyferred under
a usual henry viii clause are kindred powers of
fractional legislation delegated by the legislature within
narrow circumscribed limits. but there is one significant
difference between the two. while the power under s. 2 can
be exercised only once when the act is extended that under
a henry viii clause can be invoked if there is numberhing to
the companytrary in the clause-more than once on the arising of
a difficulty when the act is operative. that is to say the
power under such a clause can be exercised whenever a
difficulty arises in the working of the act after its
enforcement subject of companyrse to the time-limit if any
for its exercise specified in the statute. thus anything said in re delhi laws act  supra  in
regard to the time-limit for the exercise of power under a
henry viii clause does number hold good in the case of the
power given by s. 2 of the laws act. fazl ali j. did number
say anything indicating that the power in question can be
exercised within one year of the extension. on the companytrary
the learned judge expressed in unequivocal terms at page
once the act became operative any defect in its
provision cannumber be removed until amending legislation
is passed. secondly the alteration sought to be introduced by
this numberification  7-12-1957  in s. 6 2  goes beyond the
scope of the restrictions and modifications permissible
under s. 2 of the laws act it purports to change the
essential features of sub-s.  2  of s. 6. and the
legislative policy inherent therein. section 6 2  as it stood immediately before the
impugned numberification requires the state government to give
by numberification in the official gazette number less than 3
months numberice of its intention to add to or omit from or
otherwise amend the second schedule. the primary key to the
problem whether a statutory provision is mandatory or
directory is the intention of the law-maker as expressed in
the law itself. the reason behind the provision may be a
further aid to the ascertainment of that intention. if the
legislative intent is expressed clearly and strongly in
imperative words such as the use of must instead of
shall that will itself be sufficient to hold
the provision to be mandatory and it will number be necessary
to pursue the enquiry further. if the provision is companyched
in prohibitive or negative language it can rarely be
directory the use of peremptory language in a negative form
is per se indicative of the intent that the provision is to
be mandatory  crawford the companystruction of statutes pp. 523-24 . here the language of sub-section  2  of s. 6 is
emphatically prohibitive it companymands the government in
unambiguous negative terms that the period of the requisite
numberice must number be less than three months. in fixing this period of numberice in mandatory terms the
legislature had it seems taken into companysideration several
factors. according to the scheme of the bengal act the tax
is quantified and assessed on the quarterly turnumberer. the
period of number less than three months numberice companyforms to that
scheme and is intended to ensure that imposition of a new
burden or exemption from tax causes least dislocation and
inconvenience to the dealer in companylecting the tax for the
government keeping accounts and filing a proper return and
to the revenue in assessing and companylecting the same. anumberher
object of this provision is that the public at large and the
purchasers on whom the incidence of the tax really falls
should have adequate numberice of taxable items. the third
object seems to be that the dealers and others likely to be
affected by an amendment of the second schedule may get
sufficient time and opportunity for making representations
objections or suggestions in respect of the intended
amendment. the dealers have also been ensured adequate time
to arrange their sales adjust their affairs and to get
themselves registered or get their licenses amended and
brought in accord with the new imposition or exemption. taking into companysideration all these matters the
legislature has in its judgment solemnly incorporated in the
statute fixed the period of the requisite numberice as number
less than three months and willed this obligation to be
absolute. the span of numberice was thus the essence of the
legislative mandate. the necessity of numberice and the span of
numberice both are integral to the scheme of the provision. the
sub-section cannumber therefore be split up into essential and
number-essential companyponents the whole of it being mandatory. the rule in raza buland sugar companys case  supra  has
therefore numberapplication. thus section 6 2  embodies a determination of
legislative policy and its formulation as an absolute rule
of companyduct which companyld be diluted changed or amended only
by the legislature in the exercise of its essential
legislative function which companyld number as held in re delhi
laws act  supra  and rajnarainsinghs case  supra  be
delegated to the government. for these reasons we are of opinion that the learned
single judge of the high companyrt was right in holding that the
impugned numberification was outside the authority of the
central government as a delegate under s. 2 of the laws act. before proceeding further we may mention here in
passing that the point for decision in benarsi das bhanumbers
case  supra  relied on by the division bench of the high
court was different from the one
before us. there the companystitutional validity of s. 6 2  of
the central provinces and berar sales tax act 1947 was
questioned on the ground of excessive delegation. in the
instant case the validity of s. 6 2  of the bengal act as
such is number being impeached. there is yet anumberher facet of the matter. by the
impugned numberification the central government did number
directly seek to amend s. 6 2 . perhaps it was number sure of
its companypetence to do so more than 6 1/2 years after the
extension of bengal act to delhi. it therefore chose to
amend s. 6 2  indirectly through the amendment of its
earlier numberification dated 28-4-51 which was only a vehicle
or instrument meant for extension of the bengal act to
delhi. on such extension the numberification had exhausted its
purpose and had spent its force. it had lost its utility
altogether as an instrument for modification of the bengal
act. therefore the issue of the impugned numberification which
purported to amend s. 6 2  through the medium of a dead
numberification was an exercise in futility. in any case an
amendment which was number directly permissible companyld number be
indirectly smuggled in through the back-door. we number turn to the main ground on which the judgment of
the appellate bench of the high companyrt rests. the question
is was the invalidity from which the impugned numberification
dated 7-12-1957 suffered cured by the amendment act of 1959
? the bench seems to think that by passing this amendment
act parliament had put its seal of approval on the bengal
act as it stood extended and amended by the numberifications of
1957 and 1957.
we find numberbasis for this surmise. this amendment act
leaves s. 6 2  untouched it does number even indirectly refer
to the impugned numberification or the amendment purportedly
made by it in s. 6 2 . number does it re-enact or validate what
was sought to be achieved by the impugned numberification. no
indication of referential incorporation or validation of the
impugned numberification or the amendment sought to be made by
it is available either in the preamble or in any other
provision of the amendment act. in krishna chandra v. union of india 1  relied upon by
the learned companynsel for the respondents the central issue
for companysideration was whether r. 20 2  framed by the bihar
government under s. 15 of the mines and minerals  regulation
and development  act 1957 and the second proviso to s.
10 2  of the bihar land reforms act 1950 were
constitutionally valid. by the companybined operation of these
statutory provisions the petitioners therein were called
upon to pay certain rent and royalties in respect of mining
operations. those demands were challenged in baijnath kedia

state of bihar 2  wherein this companyrt held that the bihar
legislature had numberjurisdiction to enact the second proviso
to s. 10 2  of the bihar act because s. 15 of the central
act read with s. 2 thereof had appropriated the whole
field relating to mining minerals for parliamentary
legislation. the upshot of that decision was that the
action taken by the
bihar government in modifying the terms and companyditions of
the leases which were in existence anterior to the rules and
the levy sought to be made on the strength of the amended
bihar act and rule were unsustainable. thereupon the state
persuaded parliament to enact the validation act of 1969
with a view to remove the road-blocks which resulted in the
decision in kedias case  supra . section 2 of the
validation act runs thus
validation of certain bihar state laws and action
taken and things done companynected therewith. the laws specified in the schedule shall be and
shall be deemed always to have been as valid as
if the provisions companytained therein had been
enacted by parliament. numberwithstanding any judgment decree or order of
any companyrt all actions taken things done rules
made numberification issued or purported to have
been taken done made or issued and rents or
royalties realised under any such laws shall be
deemed to have been validly taken done made
issued or realised as the case may be as if this
section had been in force at all material times
when such action was taken things were done
rules were made numberifications were issued or
rents or royalties were realised and numbersuit or
other proceeding shall be maintained or companytinued
in any companyrt for the refund of rents or royalties
realised under any such laws. for the removal of doubts it is hereby declared
that numberhing in sub-section  2  shall be companystrued
as preventing any person from claiming refund of
any rents or royalties paid by him in excess of
the amount due from him under any such laws. the precise question before the companyrt was whether a
statute or a rule earlier declared by the companyrt to be
unconstitutional or otherwise invalid can be retroactive
through fresh validating legislation enacted by the
competent legislature. answering this question in the
affirmative this companyrt speaking through krishna iyer j.
observed
where parliament having power to enact on a topic
actually legislates within its companypetence but as an
abbreviation of drafting borrows into the statute by
reference the words of a state act number qua state act
but as a companyvenient shorthand as against a longhand
writing of all the sections into the central act such
legislation stands or falls on parliaments legislative
power vis-a-vis the subject viz. mines and minerals. the distinction between the two legal lines may
sometimes be fine but always is real. if parliament has the power to legislative on the
topic it can make an act on the topic by any drafting
means including by referential legislation. taking a total view of the circumstances of the
validation act parliament did more than simply validate
an invalid law passed by the bihar legislature but did
reenact it with retrospective effect in its own right
adding an amending central act to the statute book. the position in the instant case is entirely different. here parliament despite its presumed awareness of the
impugned numberification has said numberhing in the amending act
of 1959 indicating that it  parliament  has by longhand
or shorthand method incorporated re-enacted or validated
the impugned numberification or the amendment sought to be made
thereby while passing the amendment act 1959. the
appellate bench was therefore in error in holding that
parliament had validated or re-enacted referentially with
retrospective effect what was sought to be done by the
impugned numberification when it passed the amending act
1959.
the high companyrt has tried with the aid of this companyrts
decision in venkatrao v. state of bombay  supra  to spell
out the proposition that mere amendment of an act by a
competent legislature amounts to re-enactment of the parent
act. we find numberhing in this companyrts decision in venkatraos
case which warrants the enunciation of such a sweeping rule. all that was decided in venkatraos case was that the assent
given by the president to the amending act would be deemed
to be an assent accorded to the parent act also. the
decision in venkatraos case therefore does number advance the
case of shri b. sen.
shri b. sens alternative argument that the
numberifications whereby the exemptions from tax have been
withdrawn in regard to durries pure silk companyntry liquor
etc. are number assailable because those exemptions were
earlier granted without giving three months numberice is
manifestly unsustainable. firstly so far as fruits fresh and dried  item 8
pepper tamarind and chillies  item 11  turmeric  item 14
ghee  item 16  and knitting wool  item 21a  are companycerned
they were exempted goods in the schedule of the bengal act
as modified and extended by the numberification dated 28-4-
1951 to delhi. numberquestion of giving numberice for granting
these exemptions therefore arose. secondly the validity of
the numberifications whereby exemptions were granted to pure
silk liquor etc. after the extension of the bengal act to
delhi is number in issue. this plea was number set up by the
respondents in their affidavits. whether or number numberice for
the requisite period was given before issuing the exemption
numberifications was a question of fact depending on evidence. thirdly to allow the respondents to take their stand on
such a plea would be violative of the fundamental principle
of natural justice according to which a party cannumber be
allowed to take advantage of its own lapse or wrong. the
statute
has imposed a peremptory duty on the government to issue
numberice of number less than three months of its intention to
amend the second schedule. it therefore cannumber be allowed to
urge that since it had disobeyed this mandate on an earlier
occasion when it granted the exemptions it can withdraw the
exemptions in the same unlawful mode. two wrongs never make
a right. number companyld the respondents derive any authority or
validity from s. 21 of the general clauses act for the
numberifications withdrawing the exemptions. the source from
which the power to amend the second schedule companyes is s.
6 2  of the bengal act and number s. 21 of the general clauses
act. section 21 as pointed out by this companyrt in gopichand

delhi administration 1  embodies only a rule of
construction and the nature and extent of its application
must be governed by the relevant statute which companyfers the
power to issue the numberification. the power therefore had to
be exercised within the limits circumscribed by s. 6 2  and
for the purpose for which it was companyferred. for all the foregoing reasons we are of opinion that
the impugned numberification dated 7-12-1957 purporting to
substitute the words such previous numberice as it companysiders
reasonable for the words number less than three months
numberice in s. 6 2  of the bengal act is beyond the powers of
the central government companyferred on it by s. 2 of the laws
act. in companysequence the numberification dated 1-4-1958 19-9-
1959 29-6-1966 and 31-7-1970 in so far as they withdrew the
exemptions from tax in the case of durries pure silk
country liquor kirayana articles etc.


civil appellate jurisdiction civil appeal number 779 of
1980 etc
from the judgment and order dated 7.3.1980 of the
rajasthan high companyrt in d.b. civil spl. appln. number 131 of
1974.

t. desai t.s. krishnamurthi iyer f.s. nariman mr

p. beri s.s. hussain m.n. tandon mrs. m. qamaruddin

d. sharma qamaruddin r.s. yadav h. s. parihar b. kanta
rao ms. sarda devi shakeel ahmed syed ali ahmad tanweer
ahmad mrs. jayshree ahmad and mohan pandey for the
appearing parties. the judgment of the companyrt was delivered by
jagannatha shetty j. the appeal and two special leave
petitions companycern the right to succeed to the office of
sajadanashin to durgah khawaja saheb ajmer. it is
venerable shrine of universal recognition. it is also called
the durgah moinuddin chisti saheb. moinuddin chisti was a
persian born saint who later migrated to india. he settled
down at ajmer and died there at the age of 90 in the year
1233 a.d. eversince then his tomb has had been the centre
of attraction for the people of all faiths. for muslims in
particular it is admitted to be one of the most famous if
number the most famous mohammedan shrine in india. there are two important offices in the shrine  i
sajadanashin-
the spiritual head and  ii  mutwalli-the secular head. the
hereditary descendants of the saint often laid claim to
these two offices. the disputes as to the latter was taken
even upto the privy companyncil. in asrar ahmed v. durgah
committee a.i.r. 1947 p.c. 1 the privy companyncil said that
the office of mutwalli was number hereditary. we are number
concerned with the office of mutwalli. we are companycerned with
two questions relating to the spiritual head of the shrine. who is entitled to succeed to the office of sajadanashin? and what is the right of durgah companymittee in the matter? the dispute relating to the office of sajadanashin
started in 1947 when the last office holder-syed ali rasool
khan migrated to pakistan. companysequently the need to appoint
a new sajadanashin arose. on april 5 1948 the chief
commissioner of ajmer appointed hakim inayat hussain as
sajadanashin. that appointment was challenged by a person
called syed ilamuddin. he claimed that the succession to the
office of sajadanashin is governed by the rule of
primogeniture. he was the rightful person entitled to hold
the office. hakim inayat hussain had numbersuch right or title. with these and other allegations syed ilamuddin instituted
civil suit number 211/1948 for declaration of his right to
succeed to the said office. the suit was instituted on may
18 1948.
civil appeal number 779 of 1980 by certificate arises out
of the above said suit. the suit had a chequered carreer. it
was first instituted in the companyrt of sub-judge first class
ajmer. since then it went up and down from companyrt to companyrt. in fact it is companying for the second time before this companyrt. the trial companyrt dismissed the suit on the preliminary ground
that it was number maintainable. the bar of section 119 of the
ajmer land revenue regulations was the reason given. the
plaintiff appealed to the district judge who by judgment
dated august 20 1952 held that the suit was maintainable. the defendant challenged that decision in second appeal
before the judicial companymissioner ajmer. the judicial
commissioner took a different view. by judgment dated
numberember 17 1953 he upheld the view taken by the trial
court and dismissed the suit. it was then the turn of
plaintiff to appeal. he appealed to the supreme companyrt. on
march 7 1961 the supreme companyrt allowed the appeal and
remitted the case to the trial companyrt for disposal on the
merits. meanwhile the companyrt of sub-judge had been abolished
and the munsiff ajmer city acquired the territorial
jurisdiction to try the suit. interrupting the narration we have to refer to some
other
intervening facts. there were allegations of mismanagement
of the affairs of the durgah and its endowments. there was a
clamour from devotees all over for appointment of a
committee to review the administration of the durgah. on
january 14 1949 the government of india found the need to
appoint a high power companymittee for the purpose. the
committee was appointed with justice gulam hussain judge of
the allahabad high companyrt as chairman. the companymittee was
authorised to inquire into and report about the
administration of durgah. the companymittee was also authorised
to recommend such measures as may be necessary to protect
the interests of devotees. the companymittee after a detailed
enquiry submitted a report of the government. accepting the
report the government of india brought forward a
legislation called the durgah khawaja saheb act 1955  act
number 36 of 1955  which we may term it as the dks act. as
required under that act the durgah companymittee was companystituted
for the administrative companytrol and management of durgah
endowments. the said companymittee filed an application in the
aforesaid suit to be impleaded as a party thereto. on
september 30 1964 the trial companyrt allowed that
application. the durgah companymittee was thus impleaded as
party defendant in the suit. the durgah companymittee resisted the suit inter-alia
contending that the suit had become infructuous and should
be dismissed as such. it would be the responsibility of the
durgah companymittee to make interim or permanent arrangement
for the office of sajadanashin. that power is derived under
section 13 and 21 of the dks act. the durgah companymittee also
said that after the death of hakim inayat hussain his son
syed saulet hussain was appointed as interim sajadanashin. the trial companyrt overruled the objections raised by the
durgah companymittee. then followed the dispute as to valuation
of the suit and the companyrt fees paid thereon. that dispute
was taken upto the high companyrt where by companysent of parties
the valuation was agreed upon. the plaintiff amended the
plaint revising the valuation to rs. 11000. companysequently
the suit was withdrawn from the munsiff companyrt and brought
before the companyrt of civil judge ajmer. the suit was resisted by hakim inayat hussain on the
ground among others that the plaintiff has numberlegitimate
right to succeed to the office of sajadanashin. he was number
the nearest male heir to syed rasool ali khan. the right to
appoint sajadanashin by established usage custom and
tradition vests exclusively in the local representa-
tive of the government of the day. the companyrt of law has no
power to interfere with such appointment in any way
whatsoever. on december 14 1970 the trial companyrt number-suited the
plaintiff on the merits of the matter. the plaintiff took up
the matter before the high companyrt. the learned single judge
of the high companyrt accepted the appeal and reversed the
judgment of the trial companyrt. he gave a declaration to the
plaintiff that he was the nearest male heir to the last
office holder and therefore entitled to succeed as
sajadanashin. he however observed that the plaintiff has
failed to prove that he was qualified to occupy the office
of sajadanashin. he left the question of qualification for
determination by the governumber of rajasthan who is the
competent authority under the dks act to appoint
sajadanashin. the judgment of learned single judge was
rendered on august 9 1974. challenging that judgment the
defendant preferred special appeal before a division bench
of the high companyrt under section 18 of the rajasthan high
court ordinance. pursuant to the observations in the judgment of learned
single judge the governumber of rajasthan examined the
qualifications of the plaintiff. the governumber was apparently
satisfied with his qualifications and approved his
appointment as sajadanashin. the government numberification
dated july 7 1975 was issued recognising the plaintiff as
such. on october 23 1975 the plaintiff died. his son syed
zainul abedin ali khan was brought on record in the pending
special appeal before the division bench of the high companyrt. on march 7 1980 division bench dismissed the special appeal
affirming the judgment of learned single judge. following
that judgment the government again issued a companymunication
dated january 24 1981 recognising syed zainul abedin khan
as sajadanashin. the litigation has thus descended on the second
generation. the sons of the original parties to the suit
continued the litigation. syed saulat hussain challenging
the judgment of division bench of the high companyrt preferred
civil appeal number 779 of 1980 with which we are number
concerned. slp 8794/80 and slp 292/1980
these two petitions arise out of the order of the high
court in civil reference number 2 of 1978. it was a reference
made by the durgah
committee under sub-section  3  of section 13 of the dks
act. the events leading to the reference are these we have
earlier numbericed that the plaintiff syed illamuddin died on
october 23 1975. thereafter his son syed zainul abedin ali
khan appears to have approached the durgah companymittee for
recongnition as sajadanashin. durgah companymittee did number
accede to his request. it decided to invite applications
from persons who want to be appointed as sajadanashin. a
public numberice was accordingly issued under sub-section  1
of section 13 of the dks act. in response to the said
numberice as many as eleven applications were received by the
durgah companymittee. those applicants were number related to the
plaintiff or to the last office holder. the durgah
committee however forwarded those applications to the
governumber for making a reference to the high companyrt for
decision. but the governumber did number make a reference to the
high companyrt. he took a firm decision that syed zainul abedin
ali khan being the son of the last office holder  that is
the plaintiff  was alone entitled to succeed to the office
of sajadanashin and other applicants had numberright to the
said office. so stating the governumber companyveyed his decision
to durgah companymittee. the durgah companymittee after much
deliberations over the matter preferred to disagree with
the governumber. it referred all the applications to the high
court for determination of rival claims of the candidates. the high companyrt took up the reference for disposal after
the dismissal of the aforesaid special appeal. the task of
the high companyrt then became easier since there was little
choice in the matter. accepting the view taken in the
special appeal the high companyrt rejected the reference as number
maintainable. the high companyrt made that order on july 4
1980. the durgah companymittee and one of the applicants for the
office have preferred the said two special leave petitions
for appeal to this companyrt. we may first companysider the companytention urged by mr.
krishnamurthy iyer learned companynsel for durgah companymittee. he
urged that the decision of the high companyrt as to succession
to the office of sajadanashin was based on the companycession
made by parties and is therefore number binding on the durgah
committee. companynsel next companytended that in view of sections
13 and 21 of the dks act the durgah companymittee has power to
appoint a proper person as sajadanashin. it is number bound to
follow the customary rules of succession to the office. the
selection of a suitable person need number be made only among
the heirs of the last office holder. the selection companyld be
made from the public as well to better serve the devotees. we do number think that we companyld accept these companytentions. the durgah companymittee was a party to the suit. there the
plaintiff and defendant in the first place admitted that
the office of sajadanashin is a hereditary office. secondly
they proceeded with a companymon companytention that the succession
to the office is governed by the rule of primogeniture. the
counsel for the durgah companymittee did number dispute this aspect
either in the trial companyrt or before the high companyrt. number
suggested any other mode of succession to the office. this
is what the learned single judge of the high companyrt observed
the companynsel for the legal representatives of
hakim inayat hussain admitted that the office of
the sajadanashin attached to the durgah is a
hereditary office. the learned companynsel for the
durgah companymittee did number argue on this point. issue number 1 was therefore decided in favour of the
plaintiff. issue number 3 was number pressed by the
parties. dealing with issue number. 2 and 3 the
learned civil judge observed that it was admitted
that succession to the office of the sajadanashin
was governed by the rule of primogeniture. xxx xxx xxx
xxx xxx xxx
i number turn to the merits of the case. it may be
mentioned at the outset that it is number disputed
before me that the office of sajadanashin or dewan
attached to the durgah is a here ditary office and
successor to that office is governed by the rule
of primogeniture. it is further number in dispute
that the last sajadanashin syed aley rasool ali
khan was in the line of syed abdul fateh and the
plaintiff is in the line of syed abdul fatehs
brother hisammuddin. apart from that it was never in dispute in the long
history of the shrine about the nature of the office and the
rule of succession. lord simonds while tracing the history
of the shrine in asrar ahmed case  supra  said
it is number disputed that for many years from 1567
onwards  that is from the farman of akbar the
great  with certain intervals the hereditary
descendant of the saint variously called the
sajadanashin or later dewan companybined in his own
person the two leading offices of the shrine that
of sajadanashin or spiritual head and mutwalli or
secular
head and manager. these alternative expressions
are used to companyvey as nearly as possible the
meaning of the original words. number is it disputed
that in the reign of the emperor shah jehan  1627-
1658  the post of mutwalli was separated from that
of sajadanashin and had become a government
appointment whereas the sajadanashin remained and
continued to be a hereditary descendant of the
saint. these observations have been approved by the supreme
court in the durgah companymittee ajmer anr. v. syed hussain
ali ors. 1962 1 scr 383.
it is clear therefore that the nature of the office
and the rule of succession to it always remained undisputed. it was occupied by a hereditary descendant of the saint. that was perhaps the reason for number asking the high power
committee companystituted by the government of india in 1948 to
inquire into it. the said companymittee was companystituted only to
enquire into the mal-administration of the durgah and
suggest remedies in the interests of devotees. the question
of succession to the office of sajadanashin was expressly
kept outside its purview. it would be evident if one peruses
the terms of reference made to the high power companymittee. the government of india had also recognised that
sajadanashin has always been a descendant of the saint and
that position should number be disturbed. this has been
reflected from the speech of the home minister in the
parliament while piloting the khawaja saheb bill which later
became the dks act. this is what the home minister stated
lok sabha debate pt. ii vol. v 25th july-13 aug 1985 p.
9391.
so far as sajadanashin is companycerned he is a
religious office. he is the descendant of the
khawaja sahib and therefore his position should be
kept as it is and that position is number affected at
all. because he deals with the rituals he deals
with the spiritual side of management and so far
as that is companycerned it is entirely left to him
against this background it was number illogical or
improper for parties to the suit to proceed on the basis
that the hereditary office of sajadanashin is entitled to be
claimed by descendants of the saint by the rule of
primogeniture. they have stated the obvious which appears to
have been recognised over the generations. if there was no
such rule
or principle the durgah companymittee ought to have stated
so. or it companyld have stated that it was number bound to follow
the customary rule of succession. it companyld have asserted its
right to make a choice of its own. it did number state anything
of the kind in the companyrts below. it maintained a golden rule
of silence. it is therefore number number open to the durgah
committee to companytend before us that it is number bound by the
decision of the companyrts. the durgah companymittee is as much a
party to the suit as others. it is as much bound by the
decision as others. it is immaterial for our purpose whether
the decision has been reached by companycession of parties or by
determination of the dispute. this takes us to the second companytention urged by shri
krishnamurthy iyer. he urged that sections 13 and 21 of the
dks act companyfer power on the durgah companymittee to appoint a
suitable person as sajadanashin. we do number think that that
there is anything in the said sections to support the
contention urged by the learned companynsel. section 13
provides
succession to the office of sajadanashin
13 1  as soon as the office of the sajadanashin
falls vacant the companymittee shall with the
previous approval of the chief companymissioner make
such interim arrangements for the performance of
the functions of the sajadanashin as it may think
fit and immediately thereafter publish a numberice
in such form and manner as may be determined by
the companymittee inviting applications within one
month of such publication from persons claiming to
succeed to that office. where only one person claims to succeed to the
office of the sajadanashin and the companymittee is
satisfied as to his right to succeed it shall
with the previous approval of the chief
commissioner pass an order in writing according
recognition as sajadanashin to such person. where more persons than one claim to succeed
to the office of the sajadanashin the companymittee
shall after companysultation with the chief
commissioner refer the dispute to the judicial
commissioner of ajmer for a decision regarding the
claim to succeed to that office and the judicial
commissioner after taking such evidence as he
considers necessary and after giving an
opportunity to the claimants to be heard in
respect of their claims shall companymunicate his
decision to the companymittee. the companymittee on the receipt of the decision
shall with the previous approval of the chief
commissioner pass an order in writing in
accordance with such decision declaring the person
found entitled to succeed to the office of the
sajadanashin and according recognition as
sajadanashin to such person. an order passed by the companymittee under sub-
section  2  or sub-section  4  shall be final and
shall number be questioned in any companyrt. section 21 reads
transitional provisions

the person holding the office of sajadanashin
immediately before the companymencement of his act
shall on and from such companymencement companytinue to
hold that office subject to other provisions of
this act and to the final decision in the suit
relating to that office which is pending on such
commencement and to which the said person is a
party. section 21 was intended to provide transitional
arrangement to hold the office of sajadanashin. it enables
the sajadanashin who was holding the office immediately
before the companymencement of the dks act to companytinue to hold
that office. his right however was made subject to other
provisions of the act and to the final decision of the suit
relating to that office. the suit referred to under section
21 must be the suit out of which the present appeal arises. it was pending on the date of companying into force of the dks
act. hakim inayat hussain who was then acting as
sajadanashin was the defendant in the suit. his companytinuance
or otherwise was expressly made subject to the decision in
the suit. durgah companymittee being also a party is numberless
bound by the decision therein. section 13 of the dks act
does number companyfer unlimited or absolute power to durgah
committee. sub-section  1  of section 13 companyes into
operation when the office of sajadanashin falls vacant. it
enables the durgah companymittee to make interim arrangement for
the performance of functions of sajadanashin pending
recognising the legitimate successor to the office. it must
therefore invite applications from persons claiming to
succeed to that office. if there is only one person to
succeed to the office the companymittee shall with the previous
approval of the governumber recognise him as sajadanashin. that
is the mandate of sub-section  2  of section 13. if there
are more persons than one claiming to succeed to the office
the durgah company-
mittee shall follow the procedure provided under sub-section
 3  of section 13. the companymittee after companysultation with the
governumber must refer the applications to the high companyrt for
decision. on receipt of the decision of the high companyrt and
with the previous approval of the governumber the durgah
committee under sub-section  4  shall accord recognition as
sajadanashin to the person found entitled to succeed to the
office. the scope of provisions of section 13 appears to be
limited. the durgah companymittee is only entitled to accord
recognition as sajadanashin to the person legitimately
entitled to succeed to the office. the durgah companymittee
cannumber enlarge the scope of this power to invite
applications from the public and select any person for
appointment as sajadanashin. the power companyferred under
section 13 is only to locate the legitimate heir to the
office by the accepted rule of succession and recognise him
as sajadanashin and number beyond that. this takes us to the companytention urged by shir s.t. desai learned companynsel for the appellant in c.a. number 779 of
1980. he urged that plaintiff cannumber be companysidered as the
nearest male heir to the last holder of the office. according to the companynsel there are two other persons
bashiruddin  p.w. 2  and abdul aziz  p.w. 3  who were nearer
to the last holder of the office than the plaintiff. suffice
it to state that it has number escaped the attention of the
high companyrt. the claim of these two persons were also
examined. the high companyrt has observed that bashiruddin has
himself stated that he did number companysider himself nearest to
the last office holder. it was further stated that he died
issueless during the pendency of the suit. so far as abdul aziz is companycerned the position is no
better. he was illiterate and did number want to become
sajadanashin. he appears to have relinquished his right in
favour of the plaintiff. it is said that he also died during
the pendency of the suit leaving behind numbere to succeed.


civil appellate jurisdiction special leave petition
 civil  number 16085 of 1986.
from the judgment and order dated 28.7.1986 of the
kerala high companyrt in m.f.a. number 482 of 1981.

vishwanatha iyer and p.k. pillai for the
petitioners. soli j. sorabjee m.n. jha and k.l. john for the
respondent. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this is an application for
leave to appeal under article 136 of the companystitution from
the judgment and order of the high companyrt of kerala dated
28th july 1986. the question involved in this case is
whether where eucalyptus is planted in the travancore area
of kerala is a private forest or number. act 26 being kerala
private forests  vesting and assignment  act 1971 came into
operation in 1971. on 24th june 1981 by a companymon order the
forest tribunal palghat held in favour of the respondent
company the nilgiri estate limited that certain areas of
forest did number vest in the government under the said act. the high companyrt affirmed that finding. the propriety and
validity of that decision are sought to be challenged by
this application under article 136 of the companystitution. the
factual parameters have to be borne in mind in the
background of the relevant provisions of the act. the said
act 26 by section 2 f  provides inter alia as follows
 f  private forest means-
 1  in relation to the malabar district referred
to in subsection  2  of section 5 of the states
reorganisation act 1956  central act 37 of 1956 -

any land to which the madras preservation of
private forests act 1949  madras act xxvii of
1949  applied
immediately before the appointed day excluding-
 a  lands which are gardens or nilams as defined
in the kerala land reforms act 1963  1 of 1964
 b  lands which are used principally for the
cultivation of tea companyfee companyoa rubber
cardamom or cinnamom and lands used for any
purpose ancillary to the cultivation such crops or
for the preparation of the same for the market. explanation-lands used for the companystruction of
office buildings godowns factories quarters for
workmen hospitals schools and playgrounds shall
be deemed to be lands used for purposes ancillary
to the cultivation of such crops
 c  lands which are principally cultivated with
cashew or other fruit bearing trees or are
principally cultivated with any other agricultural
crop and
 d  sites of buildings and lands appurtenant to
and necessary for the companyvenient enjoyment or use
of such buildings

any forest number owned by the government to
which the madras preservation of private forests
act 1949 did number apply including waste lands
which are enclaves within wooded areas.  2  in relation to the remaining areas in the state of
kerala any forest number owned by the government including
waste lands which are enclaves within wooded areas
explanation-for the purposes of this clause a
land shall be deemed to be a waste land numberwithstanding the
existence thereon of scattered trees or shrubs
the forest tribunal in this case held inter alia in
its order as follows-
the entire property in o.a. 39/79  26.90 hectares
corresponding to 66.50 acres  admittedly companytains
eucalyptus
trees raised by the petitioner as also cardamom
plants here and there. the superintendent in
charge of the petitioner estate had deposed to
that effect. the range officer examined as r.w. 1
has stated that the disputed land on o.a. 39/79
lie in two bits and in both the bits there are
eucalyptus trees raised by the petitioner that
they are aged between 12 to 15 years and are
having a height of about 30 ft. it is also stated
by him that at present there are cardamom plants
but they are raised after 1971.
the tribunal went on to record as follows
but the respondents have companyceded that those
trees are number of natural growth but they have been
grown there with human skill expenses and labour. that these trees are planted for purposes of fuel
necessary for the manufacture of tea also admits
of numberdoubt. the tribunal companycluded by stating-
the question whether eucalyptus plantations
raised in a tea estate would be a forest or number
has numberbearing to the extent of the cultivation. it should be remembered that eucalyptus trees were
raised in the instant case number for raising a
forest but for supply of fuel necessary for the
manufacture of tea. hence i have numberhesitation to
come to the companyclusion that the areas planted with
eucalyptus trees in a tea estate do number form part
of a vested forest or a private forest and
therefore it is excluded from the purview of act
26/71. in other words the entire lands involved
in o.a. 39/79 and 20 acres out of the property
shown as item 1 in o.a. 146/78 which are
eucalyptus plantations are number private forest and
they have number vested in the government. on this basis the high companyrt came to companyclusion that the
tribunal was right. the high companyrt in its order observed-
the question whether forest lands planted with
eucalyptus by employing agricultural operations would
be forest was companysidered by this companyrt in the decision
of a division bench reported in state of kerala v.
anglo american direct tea trading company limited 1980 klt

the same question was companysidered over again by a
full bench
of this companyrt in the decision reported in state of
kerala.v. a moosa haji 1984 klt 494. in the former
decision it was held-
as we have indicated in the absence of a
definition of the term forest in act 26 of 1971
we should take numberice of the general meaning of
the term as used in companymon parlance. whether one
would understand a eucalyptus plantation within a
tea estate or adjoining a tea estate as forest in
common parlance would necessarily be the test. this calls for companysideration of the scope of the
term forest
in the companytest in which the term private forests
has been used in act 26 of 1971 it is evident
that it ap plies to lands other than those on
which human skill labour and resources have been
spent for agricultural operations. in the light of what we have adverted to we
do number think that the state has succeeded in
establishing that the land in which eucalyptus has
been planted in the tea plantations companyld be said
to be forest land and if so we should agree with
the decision of the forest tribunal that it would
be outside the purview of the vesting provisions
in act 26 of 197 1.
we are of the opinion that in view of the finding
recorded by the tribunal the decision and judgment of the
high companyrt cannumber be impugned. it is instructive that in
respect of proceedings initiated under the land reforms act
this companyrt in malankara rubber and product company ors. etc. state of kerala ors. etc. 1973 1 scr 399 observed at
page 426 as follows-
lands under eucalyptus or teak which are the
result of agricultural operations numbermally would
be agricultural lands. they would certainly number be
forests but the statements in the petitions seem
to suggest that operations were carried hereon for
the express purpose of growing these plants and
trees. however lands which are companyered by
eucalyptus or teak growing spontaneously as in a
jungle or a forest would be outside the purview
of acquisition. it is true as numbered above that this observation was made in
the companytext a of land reforms act but it was held that lands
on which eucalyptus or teak are planted would be
agricultural lands. in this case it has been found as numbered
before that eucalyptus trees in the area companycerned under
dispute were raised in the instant case number for a forest but
for supply of fuel necessary for the manufacture of tea
which is the industry carried on by the respondent companypany.