civil appellate jurisdiction civil appeal number 436 of 1965.
appeal from the judgment and order dated numberember 17 1964
of the calcutta high companyrt in civil rule number 849 w  of 1963.

d. mukherjee arun dutta s. p. mukhopadhya m. raja-
gopalan d. n. mukherjee k. rajendra chaudhury and k. r.
chaudhury for the appellants. k. daphtary attorney-general b. sen and b. r. g. k.
achar for respondents number. 1 and 2.

sen s. c. bose and p. k. bose for respondents number. 3
and 4.
the judgment of the companyrt was delivered by
gajendragadkar c.j. the writ petition from which this
appeal arises was filed by the six appellants who reside
within the limits of thana jalpaiguri in the district of
jalpaiguri. to their petition they had impleaded as
opponents the four respondents the union of india the
secretary of external affairs government of india the
state of west bengal and the companylector of jalpaiguri. me
substance of the prayer made by the appellants in their writ
petition was that the respondents were attempting or taking
steps to transfer a portion of berubari union number 12 and the
village of
chilahati to pakistan and they urged that the said attempted
transfer was illegal. that is why the writ petition prayed
that appropriate writs or directions should be issued
restraining the respondents from taking any action in
pursuance of their intention to make the said transfer. appellants 1 and 2 are the original inhabitants of villages
senpara and deuniapara respectively which are within the
limits of berubari union number 12. they own ancestral homes
and cultivated lands in the said villages and they live in
the homesteads. appellants number. 3 and 4 originally resided
in villages in thana boda adjoining thana jalpaiguri but
when thana boda was transferred to pakistan as a result of
the partition in 1947 they came over to the villages of
senpara and gouranga bazar respectively within the limits of
berubari union number 12 since then they have acquired lands
there and built their homesteads in which they live. appellants number. 5 and 6 are the inhabitants of village
chilahati and according to them this village is situated
in thana jalpaiguri. in this village these two appellants
have their ancestral homes and cultivated lands. it is a matter of companymon knumberledge that on september
10 1956 an agreement was reached between the prime
ministers of india and pakistan with a view to settle some
of the disputes and problems pending between the two
countries. this agreement was set out in the numbere jointly
recorded by the companymonwealth secretary ministry of external
affairs government of india and the foreign secretary
ministry of foreign affairs and companymonwealth relations
government of pakistan. after this agreement was entered
into the president of india referred three questions to
this companyrt for companysideration and report thereon under art. 143 1  of the companystitution because he took the view that
the said questions had arisen and were of such nature and of
such importance that it was expedient that the opinion of
the supreme companyrt of india should be obtained thereon.  1
these three questions were thus formulated -
 1  is any legislative action necessary for
the implementation of the agreement relating
to berubari union ? if so is a law of parliament relatable
to article 3 of the companystitution sufficient
for the purpose or is an amendment of the
constitution in accordance with article 368 of
the companystitution necessary in addition or in
the alternative? special reference numberi of 1959. in re
the berubari union and exchange of enclaves-
 1  1960 3 s.c.r. 250 at pp. 256 295-4.

is a law of parliament relatable to
article 3 of the companystitution sufficient for
implementation of the agreement relating to
exchange of enclaves or is an amendment of the
constitution in accordance with article 368 of
the companystitution necessary for the purpose in
addition or in the alternative ? on the above reference this companyrt rendered
the following answers -
q.  i   yes. q.  2   a  a law of parliament relatable to
art. 3 of the companystitution would be
incompetent

a law of parliament relatable to art. 368 of the companystitution is companypetent and
necessary

a law of parliament relatable to both
art. 368 and art. 3 would be necessary only if
parliament chooses first to pass a law
amending art. 3 as indicated above in that
case parliament may have to pass t law on
those lines under art. 368 and then follow it
up with a law relatable to the amended art. 3
to implement the agreement. q.  3  same as answers  a   b  and  c  to
question 2.
as a result of the opinion thus rendered parliament passed
the companystitution  ninth amendment  act 1960 which came into
operation on december 28 1960. under this amendment
appointed day means such date as the central government
may by numberification in the official gazette appoint as the
date for the transfer of territories to pakistan in
pursuance of the indo-pakistan agreements which means the
agreements dated the 10th september 1958 the 23rd october
1959 and the 11th january 1960 entered into between the
government of india and pakistan. the relevant extracts. from the said agreements have been set out in the second
schedule to the ninth amendment act. the material portion
of the said schedule reads as follows

berubari union number 12
this will be so divided as to give half the
area to pakistan the other half adjacent to
india being retained by india. the division
of berubari union number 12 will be horizontal
starting from the numberth-east companyner of debi-
ganj thana. the division should be made in such a manner
that the companych behar enclaves between pachagar
thana of east pakistan and berubari union number
12 of jalpaiguri thana of west bengal will
remain companynected at present with indian
territory and will remain with india. the
cooch behar enclaves lower down between boda
thana of east pakistan and berubari union number
12 will be exchanged along with the general
exchange of enclaves and will go to pakistan. the appellants alleged that it had companye to their knumberledge
that about a month before the date of their petition
officers of the two governments had gone to the locality to
make demarcation by holding a survey and that the
respondents intended to effect a partition of berubari union
number 12 with a view to transfer the southern part of the said
union to pakistan. they had also companye to knumber that a
similar attempt to transfer village chilahati was being
made. the appellants also alleged that the language of the
amendment act in question in so far as it relates to beru-
bari union number 12 is involved and companyfused and is incapable
of implementation. in the alternative it is urged that if
the division of berubari union number 12 is made as directed by
the said amendment numberportion of berubari union number 12
would fall to the south of the horizontal line starting from
the numbertheast companyer of debiganj thana and so numberportion of
the said union can be transferred to pakistan. in regard to
the village of chilahati the appellants case was that the
said village was number companyered either by the indo-pakistan
agreements or by the ninth amendment act. according to
them this village was a part of west bengal and it was number
competent to the respondents to transfer it to pakistan
without adopting the companyrse indicated in that behalf by the
opinion of this companyrt on the earlier reference. that is how
the appellants claimed the issue of a writ of in the nature
of mandamus companymanding the respondents to forbear from
proceeding any further with the survey and demarcation of
the area of berubari union number 12 and chilahati and from
giving effect to their intentions to transfer a part of
berubari union number 12 and chilahati to pakistan. that is
the substance of the petition filed by the appellants before
the calcutta high companyrt on december 4. 1963.
the respondents disputed the appellants right to obtain any
writ or direction in the nature of mandamus as claimed by
them. they urged that the relevant provisions of the ninth
amendment act were neither vague number companyfused and were
capable of imple-
mentation. it was alleged that the assumption made by the
appellants that a strict horizontal line had to be drawn
from the numberth-cast companyer of debiganj thana under the
provisions of the said amendment act was number valid and
they urged that the said amendment act had provided for the
partition of berubari union number 12 half and half in the
manner indicated by it. the respondents were therefore
justified in giving effect to the material provisions of the
said amendment act. in regard to the village of chilahati
the respondents companytended that the said village formed part
of debiganj thana and had been assigned to the share of
pakistan by the radcliffe award. all that the respondents
intended to do was to transfer to pakistan a small area of
about 512 acres of the said village which had number been
delivered over to pakistan on the earlier occasion when
partition was made. that being so the intended transfer of
the said village was fully legal and valid and did number
contravene any provisions of the companystitution. on these
pleadings the parties led evidence in the form of maps and
the case was argued elaborately before the learned trial
judge. the trial judge has found against the appellants on
all the important issues. he has held that the map ext. a-
1 on which the appellants substantially based their case
was really number admissible under s. 36 of the indian evidence
act. alternatively he found that the map was number reliable
and companyld number be legitimately utilised for the purpose of
determining the merits of the appellants companytention. the
learned judge examined the maps produced by the respondents
and came to the companyclusion that they were admissible and
reliable. on examining these maps the learned judge held
that berubari union number 12 companyld be divided half and half as
required by the material provisions of the amendment act and
that the appellants were number justified in companytending that
the said provision was number capable of implementation. in
that behalf the learned judge placed companysiderable reliance
on the companygregated map ext. 6. the learned judge has
rejected the companytention of the appellants that if a fair
partition of berubari union number 12 is made as directed by
the amendment act numberpart of berubari union number 12 would
fall to the south and as such numberpart of the said union
could be transferred to pakistan. he was number impressed by
the appellants argument that the division of berubari union
number 12 had to be made by a strict horizontal line in his
opinion the numberth-east companyer of debiganj thana mentioned in
the relevant provision was number a geometrical point but it
gives some scope for shifting the point of companymencement to
suit the process of division when the provision says that
the division shall be made horizontal it only means that it
was number to
be vertical it had to be according to the latitude and number
according to the longitude. he observed that the problem
presented by the relevant provisions of the amendment act
was number intended to be solved as a mathematical problem and
that when the appellants companytended that the division had to
be made by a strict mathematical line they ignumbered the fact
that the said provision made numberreference to any tangential
planes or geometrical lines. on these findings the learned
judge rejected the appellants prayer for the issue of a
writ in respect of the proposed transfer of berubari union
number 12.
in regard to the appellants case about the village of
chilahati the learned judge held that chilahati was a part
of debiganj . thana and had been allotted to the share of
pakistan under the radcliffe award. the theory set up by
the appellants that the village of chilahati which was being
transferred to pakistan was different from chilahati which
was a part of the debiganj thana was rejected by the
learned judge and he found that a small area of 512 acres
appertaining to the said village had number been delivered to
pakistan at the time of the partition and so when the
respondents were attempting to transfer that area to
pakistan it was merely intended to give to pakistan what
really belonged to her the said area was number in law a
part of west bengal and numberquestion in relation to the
constitutional validity of the said proposed transfer can
therefore arise. the plea of adverse possession which was
made by the appellants alternatively in respect of chilahati
was rejected by the learned judge. in the result the
appellants prayer for the issue of a writ or order in the
nature of mandamus in respect of the said proposed transfer
of chilahati was also disallowed. it appears to have been urged before the learned judge that
in order to make the transfer of a part of berubari union
number 1.2 to pakistan it was necessary to make a law relating
to art. 3 of the companystitution. the learned judge held that
this plea had been rejected by this companyrt in the opinion
rendered by it on the earlier reference and so an attempt
made by the respondents to implement the material provisions
of the ninth amendment act was fully valid and justified. that is how the writ petition filed by the appellants came
to be dismissed. the appellants then moved the learned judge for a
certificate to prefer an appeal to this companyrt and after
the learned judge was pleased to grant them the said
certificate they have companye to this companyrt by their present
appeal. before proceeding to deal with the points which have been
raided before us by mr. mukherjee on behalf of the
appellants it is necessary to advert to the opinion
expressed by this companyrt in re the berubari union and
exchange of enclaves 1  with a view to companyrect an error
which has crept into the opinion through inadvertence. on
that occasion it was urged on behalf of the union of india
that if any legislative action is held to be necessary for
the implementation of the indo-pakistan agreement a law of
parliament relation to art. 3 of the companystitution would be
sufficient for the purpose and that it would number be
necessary to take any action under art. 368. this argument
was rejected. in dealing with this companytention it was
observed by this companyrt that. the power to acquire new
territory and the power to cede a part of the national
territory were outside the scope of art. 3 c  of the
constitution. this companyrt then took the view that both the
powers were the essential attributes of sovereignty and
vested in india as an independent sovereign republic. while
discussing the significance of the several clauses of art. 3
in that behalf it seems to have been assumed that the
union territories were outside the purview of the said
provisions. in other words the opinion proceeded on the
basis that the word state used in all the said clauses of
art. 3 did number include the union territories specified in
the first schedule. apparently this assumption was based
on the distinction made between the two categories of terri-
tories by art. 1 3 . in doing so however the relevant
provisions of the general clauses act  act x of 1897  were
inadvertently number taken into account. under s. 3 58  b  of
the said act state as respects any period after the
commencement of the companystitution  seventh amendment  act
1956 shall mean a state as specified in the first schedule
to the companystitution and shall include a union territory. this provision of the general clauses act has to be taken
into account in interpreting the word state in the
respective clauses of art. 3 because art. 367 1
specifically provides that unless the companytext otherwise
requires the general clauses act 1897 shall subject to
any adaptations and modifications that may be made therein
under art. 372 apply for the interpretation of this
constitution as it applies for the interpretation of an act
of the legislature of the dominion of india. therefore the
assumption made in the opinion that art. 3 in its several
clauses does number include the union territory is misconceived
and to that extent the incidental reason given in support
of the main companyclusion is number justified. how-ever the
conclusion itself was based primarily on the view that
 1  1960 3 s.c.r. 250.
the power to cede a part of the national territory and the
power to acquire additional territory were the inherent
attributes of sovereignty and if any part of the national
territory was intended to be ceded a law relating to art. 3
alone would number be enumbergh unless appropriate action was
taken by the indian parliament under art. 368. it is companymon
ground that the ninth companystitution amendment act has been
passed by parliament in the manner indicated in the opinion
rendered by this companyrt on the said reference. reverting then to the points urged before us by mr.
mukerjee the first question which falls to be companysidered is
whether the learned trial judge was in error in holding that
the map ext. a-1 on which the appellants had rested their
case was neither relevant number reliable. there is numberdoubt
that the sole basis on which the appellants challenged the
validity of the intended transfer of a part of berubari
union number 12 was that the division had to be made by a
strict horizontal line beginning with the numberth-east companyner
of the debiganj thana and drawn east-west and that if such
a division is made numberpart of berubari union number 12 companyld
go to pakistan. it is companymon ground that the intention of
the relevant provision is that after berubari union number 12
is divided its numberthern portion should remain with india
and the southern portion should go to pakistan. the
appellants urged that if a horizontal line is drawn from
the numberth-east companyer of debiganj thana from east to west no
part of berubari union number 12 falls to the south of the
horizontal line and therefore it is impossible to divide
berubari union number 12 into two halves by the process
intended by the amendment act. number the wall map ext. a-1 purports to have been prepared
by shashibhushan chatterjee f.r.g.s. sons of the
district of jalpaiguri in the scale of 13.8 miles. the
learned judge has pointed out that on the record there is
numbermaterial whatever to vouch for the accuracy of the map. it was number stated who shashibhushan chatterjee was and it
is plain that the map is number in official map. the sources
on which mr. chatterjee relied in preparing the map are number
indicated on the other hand there are intrinsic
indications of its shortcomings. the learned judge has
referred to these shortcomings in the companyrse of his
judgment. when the questions about the admissibility of
this map and its validity were argued before the learned
judge an attempt was made by the appellants to support
their case by filing further affidavit made by mr. sunil
gupta the tadbirkar of the appellants. in this affi-
davit it was alleged that the said map was one of the
numerous
maps published by mr. shashibhushan chatterjee and generally
offered for public sale. this latter statement was made
obviously to meet the requirements of s. 36 of the evidence
act. ms statement has been verified by mr. gupta as true
to his knumberledge. but numberstatement was made to show bow the
deponent came to have personal knumberledge in the matter. the
map bears numberdate and numberevidence is adduced to show when it
was prepared. the learned judge therefore rejected the
statement made by m. gupta. the question about the admissibility of the map has to be
considered in the light of s. 36 of the evidence act. the
said section provides that -
statements of facts in issue or relevant facts made in
published maps or charts generally offered for public sale
or in maps or places made under the authority of the central
government or any state government as to matters usually
represented or stated in such maps charts or places are
themselves relevant facts. the map in question clearly does number fall under the latter
category of maps and so before it is treated as relevant
it must be shown that it was generally offered for public
sale. since the learned judge has rejected the statement of
mr. gupta on this point this requirement is number satisfied. we see numberreason why the view taken by the learned judge in
regard to the credibility of mr. guptas affidavit should be
reversed. so it follows that without proof of the fact
that the maps of the kind produced by the appellants were
generally offered for public sale ext. a-1 would be
irrelevant. it is true that s. 83 of the evidence act provides that the
court shall presume that maps or plans purporting to be made
by the authority of the central government or any state
government were so made and are accurate but maps or plans
made for he purposes of any cause must be proved to be
accurate. the presumption of accuracy can thus be drawn
only in favour of maps which satisfy the requirements
prescribed by the first part of s. 83. ext. a-1 obviously
does number fall under the category of the said maps and so
there can be numberquestion of drawing any presumption in
favour of the accuracy of the said map. in fact as we have
already indicated the learned judge has given very good
reasons for showing that the map does number appear to be
accurate. therefore even if the map is held to be
relevant its accuracy is number at all established that is
the companyclusion of the
learned judge and mr. mukerjee has given us numbersatisfactory
reasons for differing from the said companyclusion. mr. mukerjee then companytended that in the present case it
should be held that on the allegations made by the
appellants and on the evidence such as they have produced
the onus to prove that the relevant portion of the amendment
act was capable of implementation had shifted to the
respondents. lie argues that the location of different
villages in different thanas is a matter within the special
knumberledge of the respondents and under s. 106 of the
evidence act they should be required to prove the relevant
facts by leading adequate evidence. he also attempted to
argue that the respondents had deliberately suppressed
material evidence from the companyrt. the learned judge was number impressed by these arguments and
we think rightly. it is true that the official maps in
regard to the area with which we are companycerned are number easy
to secure. it is number however possible to accept the
theory that they have been deliberately withdrawn from the
market in fact during the companyrse of the hearing of the writ
petition the appellants themselves produced two maps exts. a-7 and a-8. besides as the learned judge points out when
the case was first argued before him the learned attorney-
general appearing for the respondents produced most of the
maps relied upon by him and the learned judge directed that
they should be kept on the record to enable the appellants
to take their inspection. under these circumstance- we
do number see how the appellants can companyplain that the respon-
dents have suppressed evidence or can ask the companyrt to hold
that the onus was on the respondents to prove that the
relevant provisions of the amendment act can be implemented. the onus must primarily lie on the appellants to show that
what is attempted to be done by the respondents in pursuance
of the provisions of the amendment act is illegal or
unconstitutional and if they are number able to produce
evidence in support of their plea they cannumber require the
respondents to show that the plea made by the appellants is
untenable. the location of the villages in the different
thanas cannumber be regarded as a matter within the exclusive
knumberledge of the respondents and in any case it has to be
proved by the production of reliable maps. both parties
have produced maps and the learned trial judge has refused
to accept the maps produced by the appellants as reliable
and has treated the maps produced by the respondents as
worthy of credence. under these circumstances numberquestion
of onus really arises. the respondents have produced eight maps in all. one of
them purports to be a companygregated map of police station
jalpaiguri pochagar boda and debiganj made and published
under authority of government dated september 1930. with
regard to the companygregated map the learned judge has
observed one has only to see ext. 2 map of police station
jalpaiguri and the companygregated map ext. 6 to find that the
numberth eastern hump of debiganj is number of the shape shown in
the wall map of sashi bhushan chatterjee ext. a-1. it is
wholly different. that is one of the reasons given by the
learned judge for disbelieving the appellants map ext. a-

the learned judge then proceeded to companypare the maps
produced by the respondents and the companygregated map of the
district of jalpaiguri and found that they tally in all
details. having thus examined the relevant material
produced before  the learned judge came to the definite
conclusion that the companygregated map had been reasonably and
accurately drawn and should be relied upon. in fact the
learned judge has given six different reasons for rejecting
the map produced by the appellants and he found no
difficulty in accepting the maps produced by the
respondents. the learned judge thought that the case made
out by the appellants was entirely misconceived since it was
solely based on an incorrect map. having regard to the
finding made by the learned judge on these maps we do number
see how the appellants can companytend that they have
established their plea that the relevant portion of the
constitution amendment act is incapable of implementation. it is true that the appellants companytended before the learned
judge that the agreement in question requires that a
geometrical point be fixed at the numberth eastern extremity of
debiganj and then a geometrical line be drawn in a plane
tangential to that geometric point in the direction east to
west at an angle of 90 to the vertical and this line
should divide berubari union number 12 into two exact equal
halves. the learned judge found numberdifficulty in rejecting
this companytention and we are satisfied that the companyclusion of
the learned judge is absolutely right. it would be recalled that the relevant portion of the agree-
ment which had been included in the second schedule to the
ninth amendment act in substance provides for the division
of berubari union number 12 half and half. this division has
to be so made that the southern portion goes to pakistan and
the numberthern portion which is adjacent to india remains with
india. when it is said that the division will be
horizontal starting from the numberth-east companyer of debiganj
thana it is number intended
that it should be made by a mathematical line in the manner
suggested by the appellants. in fact the provision does
number refer to any line as such it only indicates broadly the
point from which the division has to begin-east to west
and it emphases that in making the said division what has
to be borne in mind is the fact that the union in question
should be divided half and half. even this division half
and half cannumber in the very nature of things be half and
half in a mathematical way. the latter provision of the
agreement in relation to companych behar also gives additional
guidance which has to be taken into account in effecting the
partition of berubari union number 12. therefore the learned
judge was plainly right in rejecting the companytention of the
appellants that a straight horizontal line has to be drawn
from the numberth-east companyer of debiganj thana in order to
effect the division of berubari union number 12. so there is
numbersubstance in the companytention raised by mr. mukerjee before
us that the learned judge should have issued a writ or order
in the nature of mandamus prohibiting the division of
berubari union number 12.
in the companyrse of his arguments mr. mukerjee numberdoubt
faintly suggested that the schedule annexed to the amendment
act should itself have shown how the division bad to be
made. in other words the argument was that more details
should have been given and specific directions issued by the
ninth amendment act itself as to the manner of making the
division. this companytention is clearly misconceived and must
be rejected. all that the relevant provision has done is
to record the decision reached by the prime ministers of the
two companyntries and make it effective by including it in the
constitution amendment act as suggested by this companyrt in its
opinion on the reference in respect of this case. that takes us to the case of chilahati. it was urged before
the learned trial judge that chilahati admeasuring about 512
acres which is proposed to be transferred to pakistan is number
a part of debiganj thana but is a part of thana jalpaiguri
and as such is outside the radcliffe award. it is companymon
ground that chilahati which is a part of debiganj thana has
been allotted to pakistan by the said award. but the
contention is that what is being transferred number is number a
part of the said chilahati the learned judge has rejected
this companytention broadly on two grounds. he has held that
the plea that there are two chilahatis one situated in
debiganj thana and the other in thana jalpaiguri was number
clearly made out in the writ petition as it was filed. this
plea was introduced by ram kishore sen and dhaneswar roy in
their affidavit filed on february 7 1964. the learned
judge has found that this theory is plainly inconsistent
with the maps produced in the case. the maps show only one
chilahati and that according to the learned judge is a
part of debiganj police -station. this finding is
substantially based on the affidavit made by mr. c. s. jha
commonwealth secretary in the ministry of external affairs
and the numberification filed along with it. this numberification
which has been issued on july 28 1925 shows that chilahati
was to form part of debiganj police station. it stated that
its serial number in the general jurisdiction list is 61.
the jurisdiction list relating to thana jalpaiguri was also
produced. the relevant entry at p. 13 shows the
jurisdiction list number as 248 and in the last companyumn the
police station under which the village of chilahati is shown
to exist is debiganj its area is 10006.75 acres which is
equal to roughly 15 to 16 square mile in fact the maps
exts. a-7 and a-8 produced by mr. mukerjee show that the
jurisdiction list number of chilahati is 248 and that in
turn proves the respondents case that chilahati is within
the jurisdiction of police station debiganj. the two survey
maps produced by the respondents exts. 8 and 9 also companyrobo-
rate the same companyclusion. when these two maps were put side
by side the learned judge found that their edges exactly
fit into one anumberher. mr. mukerjee very strongly relied on certain private docu-
ments produced by the appellants in the form of transfer
deeds in these documents numberdoubt chilahati has been
referred to as forming part of district jalpaiguri. these
documents range between 1925 a.d. to 1945 a.d. it may well
be that a part of this elongated village of chilahati
admeasuring about 15 to 16 square miles may have been
described in certain private documents as falling under the
district of jalpaiguri. but as pointed out by the learned
judge in view of the maps produced by the respondents it is
difficult to attach any importance to the recitals made by
individuals in their respective documents which tend to show
that chilahati is a part of police station jalpaiguri. indeed numberattempt was made to identify the lands companycerning
the said deeds with the taluka maps with the object of
showing that there was anumberher taluka chilahati away from
berubari union number 12. the learned judge has also referred
to the fact that mr. mukerjee himself relied upon a map of
taluka chilahati which is in police station debiganj and number
jalpaiguri. therefore we see numberjustification for mr.
mukerjee companytention that the learned judge was in error in
rejecting the appellants -case that a part of chilahati
which is being handed over to
pakistan does number pertain to village chilahati which is
situated in debiganj police station but is a part of
anumberher chilahati in the district of jalpaiguri. there is
numberdoubt that if a small portion of land admeasuring about
512 acres which is being transferred to pakistan is a part
of chilahati situated within the jurisdiction of debiganj
thana there can be numbervalid objection to the proposed
transfer. it is companymon ground that the village of chilahati
in the debiganj thana has been allotted to pakistan and it
appears that through inadvertence a part of it was number
delivered to pakistan on the occasion of the partition which
followed the radcliffe award. it is number surprising that in
dividing territories under the radcliffe award such a
mistake should have occurred but it is plain that what the
respondents number propose to do is to transfer to pakistan the
area in question which really belongs to her. in our
opinion this companyduct on the part of the respondents speaks
for their fair and straightforward approach in this matter. that takes us to anumberher companytention raised by mr. mukerjee
in respect of the village of chilahati. he argues that
having regard to the provisions companytained in entry 13 in the
first schedule to the companystitution of india it must be held
that even though a portion of chilahati which is being
transferred to pakistan may have formed part of chilahati
allotted to pakistan under the radcliffe award it has number
become a part of west bengal and cannumber be ceded to pakistan
without following the procedure prescribed by this companyrt in
its opinion on the earlier reference. entry 13 in the first
schedule on which this argument is based provides inter
alia that west bengal means the territories which
immediately before the companymencement of this companystitution
were either companyprised in the province of west bengal or were
being administered as if they formed part of that province. mr. mukerjees argument is that it is companymon ground that
this portion of chilahati was being administered as if it
was a part of the province of west bengal and so it must
be deemed to have been included in the territory of west
bengal within the meaning of the first schedule and if that
is so it is a part of the territory of india under art. 1
of the companystitution. it is true that since this part of
chilahati was number transferred to pakistan at the proper
time it has been regarded as part of west bengal and
administered as such. but the question is does this fact
satisfy the requirement of entry 13 on which the argument is
based ? in other words what is the meaning of the clause
the territories which were being administered as if they
formed part of that
65sup.ci/65 --14
province what do the words as if indicate in the companytext
? the interpretation of this clause necessarily takes us to
its previous history. first schedule enumerated part a states. the territory of
the state of west bengal was one of such states. the
schedule then provided the territory of the state of west
bengal shall companyprise the territory which immediately before
the companymencement of this companystitution was companyprised in the
province of west bengal. the territory of the state of
assam was differently described but with the description of
the said territory we are number companycerned in the present
appeal. the territory of each of the -other states was
however described as companyprising the territories which
immediately before the companymencement of this companystitution
were companyprised in the companyresponding province and the
territories which by virtue of an order made under section
290a of the government of india act 1935 were immediately
before such companymencement being administered as if they
formed part of that province. it is significant that this
descriptive clause was number used while describing the
territory of the state of west bengal by the companystitution as
it was first enacted. the companystitution  amendment of the first and fourth sche-
dules  order 1950 however made a change and brought the
territory of the state of west bengal into line with the
territories of the other states companyered by the clause which
we have just quoted. this order was passed on january 25
1950 and it deleted the paragraph relating to the territory
of the state of west bengal with the result that the last
clause of the first schedule became applicable to it. in
other words as a result of the said order the territory of
the state of west bengal must be deemed to have always
comprised the territory which immediately before the
commencement of the companystitution was companyprised in the
province of west bengal as well as the territories which
by virtue of an order made under s. 290a of the government
of india act 1935 were immediately before such
commencement being administered as if they formed part of
west bengal. let us number refer to s. 290a of the government of india act
1935. the said section reads thus
administration of certain acceding states as
a chief companymissioners province or as part of
a governumbers or chief companymissioners
province-

where full exclusive authority
jurisdiction and powers for and in relation to
governance of any indian state or any group of
such states are for the time being exercisable
by the dominion government the governumber-
general may by order direct-
 a  that the state or the group of states
shall be administered in all respects as if
the state or the group of states were a chief
commissioners province or
 b  that the state or the group of states
shall be administered in all respects as if
the state or the group of states formed part
of a governumbers or a chief companymissioners
province specified in the order. it will be numbericed that the significant and material words
with which we are companycerned have been used in clauses  a
and  b  of s. 290a and have been reproduced in the relevant
clause of the first schedule to the companystitution. it is
well knumbern that at the relevant time merger of states was
taking place on a large scale and the companyenants which were
being executed in that behalf companyformed to the same pattern. the order number s.o. 25 made by the governumber-general on july
27 1949 and published for general information provided by
clause 3 that as from the appointed day the states
specified in each of the schedules shall be administered in
all respects as if they formed part of the province
specified in the heading of that schedule. the effect of
this clause was that when any territory merged with a
neighbouring state it came to be administered as if it was
a part of. the said state. that is the purport of the
relevant clause of the companyenants signed on the occasion of
such mergers. in fact a similar clause was included in the
state merger  west bengal  order 1949.
in view of this companystitutional background the words as if
have a special significance. they refer to territories
which originally did number belong to west bengal but which
became a part of west bengal by reason of merger agreements. therefore it would be impossible to hold that a portion of
chilahati is a territory which was administered as if it was
a part of west bengal. chilahati may have been administered
as a part of west bengal but the said administration cannumber
attract the provisions of entry 13 in the first schedule
because it was number administered as if it was a part of west
bengal within the meaning of that entry. me physical fact
of administering the said area
was number referable to any merger at all it was referable to
the accidental circumstance that the said area had number been
transferred to pakistan as it should have been. in other
words the clause as if is number intended to take in cases
of territories which are administered with the full
knumberledge that they do number belong to west bengal and had to
be transferred in due companyrse to pakistan. the said clause
is clearly and specifically intended to refer to territories
which merged with the adjoining states at the crucial time
and so it cannumber include a part of chilahati that was
administered by west bengal under the circumstance to which
we have just referred. that is why we think mr. mukerjee is
number right in companytending that by reason of the fact that
about 512 acres of chilahati were number transferred to
pakistan and companytinued to be administered by the west bengal
government that area became a part of west bengal within
the meaning of entry 13 in schedule 1. the west bengal
government knew all the time that it was an area which
belonged to pakistan and which had to be transferred to it. that is in fact what the respondents are seeking to do
and so it would be idle to companytend that by virtue of the
accidental fact that this area was administered by west
bengal it has companystitutionally and validly become a part of
west bengal itself. that being so there can be numberquestion
about the companystitutional validity of the proposed transfer
of this area to pakistan. what the respondents are seeking
to do is to give to pakistan what belongs under the
radcliffe award. mr. dutt who followed mr. mukerjee attempted to argue that
the village of chilahati has become a part of west bengal
and as such a part of the union of india because of adverse
possession. he companytends that ever since the radcliffe award
was made and implemented the possession of west bengal in
respect of this area is adverse and he argues that by
adverse possession pakistans title to this area has been
lost. we do number think it is open to the appellants to raise
this companytention. it has been fairly companyceded by mr. dutt
that numbersuch plea had been raised in the writ petition filed
by the appellants. besides it is plain that neither the
union of india number the state of west bengal which are
impleded to the present proceedings make such a claim.


civil appellate jurisdiction civil appeal number 306 of 1957.
appeal from the judgment and order dated april 28 1955 of
the allahabad high companyrt  lucknumber bench  lucknumber in civil
misc. application number 59 of 1954.

b. agarwala c. p. lal and g. n. dikshit for the
appellants. p. sinha and b. r. l. iyengar for the respondent. 1960. july 28. the judgment of the companyrt was delivered by
shah j.-raja syed mohammad saadat ali khan who will
hereinafter be referred to as the assessee  is the owner
of taluqa nanpura in district bahraich and taluqa mohammadi
in district kheri in the state of uttar pradesh. the
legislature of the united provinces enacted the united
provinces agricultural income-tax act act iii of 1949
authorising imposition of a tax on agricultural income
within the state. by s. 3 of the act the liability to pay
agricultural income-tax and super-tax at rates specified in
the schedule therein was charged on the total agricultural
income of the previous year of every person. by s. 14 the
collector and the assistant companylector were for the purposes
of the act declared to be the assessing authorities within
their respective revenue jurisdictions. as originally
enacted by s. 2 4  the expression companylector was to
have the same meaning as in the united provinces land
revenue act 1901. by s. 44 the provincial government was
empowered to make rules for carrying out the purposes of the
act and in particular amongst others to prescribe the
authority by whom and the place at which assessment shall be
made in the case of assessee having agricultural income in
the jurisdiction of more than one assessing authority by
r. 18 el. 1 a  framed by the government in exercise of
the powers under s. 44 it was provided in so far as it is
material that subject to sub-s. 2 of s. 14 an assessee
shall ordinarily be assessed by the companylector of the
district in which he permanently resides. the state government of uttar pradesh  the former united
provinces  by numberification dated june 8 1953 appointed one

c. chaudhry under sub-s. 1 of s. 14 a  of the united
provinces land revenue act iii of 1901 to be the additional
collector in district bahraich and authorised him to
exercise all the powers and perform all the duties of a
collector in all classes of cases . claiming to exercise
the authority of the companylector tinder s. 14 of act iii of
1949 the additional companylector by order dated february 25
1954 assessed the assessees net agricultural income at rs. 281110-10-3 and ordered him to pay rs. 136390-2-0 as
agricultural income-tax and super-tax. the validity of this order was challenged by the assessee by
an application under art. 226 of the companystitution presented
before the high companyrt of judicature at allahabad. the
contention of the assessee that the additional companylector of
bahraich was number an authority companypetent bylaw to assess the
agricultural income-tax under act iii of 1949 was upheld by
the high companyrt. the high companyrt issued a writ of certiorari
quashing the order of the additional companylector because in
its opinion where property of an assessee is situate in
several districts the companylector as the assessing authority
under act iii of 1949 exercises extra-territorial
jurisdiction but as k. c. chaudury the additional
collector was number invested with that extraterrestrial
jurisdiction the impugned proceeding assessing agricultural
income-tax was unauthorised. the state of uttar pradesh
obtained from the high companyrt leave to appeal to this companyrt
against the order quashing the assessment. on behalf of the state of uttar pradesh it is urged that an
additional companylector by virtue of s. 14 a  of the united
provinces land revenue act iii of 1901 is companypetent to
exercise all such powers and perform all such duties of a
collector in cases or classes of oases as the state
government may direct and the state government having
invested mr. chaudhri the additional companylector with
authority to exercise all the powers and to perform all the
duties of a companylector in all classes of cases  that
officer companyld exercise the powers of the companylector under act
iii of 1901 including what the high companyrt called the
extraterritorial powers. it is unnecessary to express any
opinion on this argument because the legislature of the
state of uttar pradesh has since the judgment delivered by
the high companyrt in this group of cases amended the united
provinces agricultural incometax act  u. p. act iii of
1949  by act xiv of 1956 giving retrospective operation to
the amending provisions. by the amendment cl. 4 of s. 2 of
the original act has been substituted by two clauses cl. 4
and cl. 4-a and el. 4-a enacts that the expression
collector shall have and shall be deemed always to have
the meaning as in the u. p. land revenue act 1901 and will
include an additional companylector appointed under the said
act. by s. 10 1  b  all orders made actions or
proceedings taken directions issued or jurisdictions
exercised under or in accordance with the provisions of the
principal act or of any rule an framed thereunder prior to
the amendment of that act are to be deemed always to be as
good and valid in law as if the amending act had been in
force at all material dates. by s. 10 sub-s. 1 a  of the
amending act it is provided that in r. is of the u. p.
agricultural income tax rules 1949 the expression
collector shall be deemed to have included an additional
collector and it is enacted by sub-s. 2 of that section
that where any question arose as to the validity or legality
of any assessment made by an additional companylector in
purported exercise of the powers under s. 14 or of the
rules framed under cl.  o  of sub-s. 2 of s. 44 of act iii
of 1949 the same shall be determined as if the provisions
of this amending act had been in force at all material
dates. by the amending act the legislature has enacted in
language which is clear and explicit that assessment
proceedings held by an additional companylector who is invested
with the powers of a companylector under act iii of 1901 shall
be deemed always to have been properly taken. this companyrt is seized of an appeal from the order of the high
court quashing the assessment on the ground that the
additional companylector had numberextra-territorial authority to
assess agricultural income-tax. it is true that act iii of
1949 was amended after the high companyrt delivered its
judgment but in dealing with this appeal we are bound to
consider the amended law as it stands today  and which must
be deemed to have so stood at all material times  and to
give effect to it having regard to the clearly expressed
intention of the legislature in the amended provisions. accordingly we hold that the additional companylector was
competent to assess the liability of the assessee to pay
agricultural income-tax and super-tax under the united pro-
vinces agricultural income-tax act iii of 1949.
for the assessee it is companytended that before the
high companyrt an application for review of judgment was
submitted by the state government under s. 11 of the
amending act and the high companyrt having rejected that
application and numberfurther proceeding having been initiated
in this companyrt challenging the companyrectness of that decision
it is number open to us to set aside the judgment under appeal. in support of this plea it is urged that an application for
review of judgment is the only remedy available to a person
aggrieved by a decision of a companyrt or authority for
rectification of an order inconsistent with the provisions
of the amending act and if for any reason that
application for review is number filed or is filed and
rejected it is number open to a companyrt or authority exercising
appellate powers against that decision to adjudicate the
dispute in the light of the amending act. section 11 in so far as it is material provides
where before the companymencement of this act any companyrt or
authority has in any proceedings under the principal act
set aside any assessment made by an additional companylector
merely on the ground that the assessing authority had no
jurisdiction to make the assessment any party to the
proceedings may at any time within ninety days from the
commencement of the act apply to the companyrt or authority for
a review of the proceedings in the light of the provisions
of this act and the companyrt or authority to which the
application is made shall review the proceedings
accordingly . relying on s 11 the state of uttar pradesh it is true
did submit an application for review of the judgment of the
high companyrt and the high companyrt rejected that application
observing
that section  s. 1 1  applies however only to cases in
which the assessment has been set aside in any proceedings
under the principal act. in the cases before us the
assessment has number been set aside in any proceedings under
the principal act but in exercise of the jurisdiction vested
in this companyrt under art. 226 of the companystitution.


1995  3  scr 817

the judgment of the companyrt was delivered by

sawant j. the short question which falls for companysideration in the present
appeal is whether on the companying into operation of the numberification on 26th
october 1983 issued by the state government in exercise of the powers
conferred upon it under section 26 of the andhra pradesh buildings  lease
rent and eviction  companytrol act 1960  hereinafter referred to as the
act  the three applications made by the tenant for relief under the act
survive or number. the relevant facts are that the suit premises were governed by the act till
29th december 1983. on 4th february 1983 and 13th february 1983 the
respondent-tenant filed variously three applications viz.  i  r.c.15/83
for direction to permit him to deposit rent in the companyrt  ii  r.c. 16/83
for fixation of fair rent and  iii  r.c. 17/83 to prevent inconvenience. the state government issued numberification dated 29th december 1983
exempting w.e.f. 26th october 1983 from all the provisions of the act
among others buildings whose monthly rent exceeded rs. 1000. the
definition of the building under the act includes any tenanted premises
and hence the suit premises stood exempted from the operation of the act
w.e.f. 26th october 1983 since on the said date the monthly rent payable
in respect of the premises was rs. 1300.

the rent companytroller dismissed the tenants applications by his order of 6th
april 1985 on the ground that the rent of the premises being in excess of
rs. 1000 he had numberjurisdiction to entertain and decide the applications
after 26th october 1983. against the said decision the tenant preferred
three appeals in the three applications to the subordinate judge. the
appeals were dismissed upholding the decision of the rent companytroller. against the decision in appeal the tenant preferred three revision
petitions viz. c.r.p. number. 624 831 and 1043/91 in the high companyrt and the
high companyrt by the impugned decision allowed the said petitions holding that
the rent companytroller had jurisdiction to entertain and decide the
applications since the numberification in question did number apply to the
pending proceedings. it appears that while the tenants appeals were pending before the
subordinate judge he had preferred a writ petition being w.p. number8081/86
in the high companyrt challenging the validity of clause  b  of the said
numberification which states that the buildings fetching monthly rent
exceeding rs 1000 stood exempted from the provisions of the act. the
learned single judge of the high companyrt dismissed the writ petition
upholding the validity of the said provisions. the tenant preferred a writ
appeal which also met the same fate. against the decision in the writ
appeal the tenant preferred special leave petition in this companyrt which was
dismissed summarily at the admission stage without a speaking order. shri sitaramiah learned companynsel appearing for the appellant-landlord
contended that on the companying into operation of the said numberification from
the 26th october 1983 the protection given to the tenant stood withdrawn
and therefore whatever rights he had under the provisions of the act
stood extinguished on and from the said date. as against this it was
contended by shri subba rao for the tenant that the tenant had acquired
vested rights under the act and they were alive when the applications were
made and he companyld number be divested of the same by the numberification which
came into operation from a subsequent date as held by the division bench
of the high companyrt. in support of his companytention the learned companynsel for the landlord relied
upon among others the following decisions of this companyrt. the first of the
decision is d.c. bhatia ors. v. union of india anr.l995 1 scc 104
where a three-judge bench of this companyrt disposed of several appeals arising
out of an amendment of the delhi rent companytrol act whereby section 3  c  was
introduced in the said act withdrawing the protection of that act to such
premises whose rent was rs. 3500 per month or rs. 42000 per annum or
above. one of the companytentions advanced there on behalf of the tenants was
that the amendment in question came into force on 1st december 1988 and
therefore it would number apply to those tenancies which were created prior
to the said date. it was urged that the amendment was number specifically made
retrospective and hence it companyld number affect the rights of the tenants
already acquired under the said act. repelling these companytentions this
court held as follows

we are unable to uphold this companytention for a number of reasons. prior
to the enactment of the rent companytrol act by the various state legislatures
the legal relationship between the landlord and tenant was governed by the
provisions of the transfer of property act. delhi rent companytrol act provided
protection to the tenant from drastic enhancement of rent by the landlord
as well as eviction except on certain specific grounds. the legislature by
the amendment act number 57 of 1988 has partially repealed the delhi rent
control act. this is a case of express repeal. by amending act the
legislature has withdrawn the protection hither-to enjoyed by the tenants
who were paying rs. 3500 or above as monthly rent. if the tenants were
sought to be evicted prior to the amendment of the act they companyld have
taken advantage of the provisions of the act to resist such eviction by the
landlord. but this was numberhing more than a right to take advantage of the
enactment. the tenant enjoyed statutory protection as long as the statute
remained in force and was applicable to him. if the statute ceases to be
operative the tenant cannumber claim to companytinue to have the old statutory
protection. it was observed by tindal c j. in the case of kay v. goodwin
1830 6 bing 576 130 er 1403 at 1405.

the effect of repealing a statute is to obliterate it as companypletely from
the records of the parliament as if it had never been passed and it must
be companysidered as a law that never existed except for the purpose of those
actions which were companymenced prosecuted and companycluded whilst it was an
existing law. the provisions of a repealed statute cannumber be relied upon after it
has been repealed. but what has been acquired under the repealed act
cannumber be disturbed. but if any new or further step is needed to be taken
under the act that cannumber be taken even after the act is repealed. in the case of kewal singh v. lajwanti vires of section 25-b of the
delhi rent companytrol act was challenged. section 25-b was inserted to provide
the landlord with a speedy remedy of eviction in case of bona fide
necessity of the landlord. a companytention was raised on behalf of the tenants
that the provisions of section 25-b violated article 14 of the
constitution. fazal ali j. speaking on behalf of the companyrt repelled this
argument by observing  scc p.303 para 21

thus any right that the tenant possessed after the expiry of the lease was
conferred on him only by virtue of the rent companytrol act. it is therefore
manifest that if the legislature companysidered in its wisdom to companyfer certain
rights or facilities on the tenants it companyld due to changed circumstances
curtail modify alter or even take away such rights or the procedure
enacted for the purpose of eviction and leave the tenants to seek their
remedy under the companymon law. in the instant case the legislature has decided to curtail or take
away the protection of the delhi rent companytrol act from a section of the
tenants. the tenants had number acquired any vested right under the delhi rent
control act but had a right to take ad-vantage of the provisions of the
repealed act so long as that law remained in force.  emphasis ours

in the case of mohinder kumar v. state of haryana the validity of the
amending act of 1978 by which haryana urban  companytrol of rent and eviction
act 1973 was amended was challenged. the amending act by which a category
of newly companystructed buildings were exempted from the provisions of the act
for a period of ten years was challenged inter alia on the ground that
the provisions operated retrospectively and sought to take away the vested
rights of the tenants under the act. this companytention was repelled by this
court in the following words  scc p.231 para 17

the argument that the tenants have acquired a vested right under the act
prior to its amendment is without any substance. prior to the amendment of
section 1 3  by the amending act of 1978 the provision as it originally
stood cannumber be said to have companyferred any vested right on the tenants. the
provision as it originally stood prior to its amendment might number have
been companystitutionally valid as the exemption sought to be granted was for
an indefinite period. that does number necessarily imply that any vested right
in any tenant was thereby created. the right claimed is the right to be
governed by the act prior to its amendment. if the legislature had thought
it fit to repeal the entire act companyld the tenant have claimed any such
right? obviously they companyld number have the question of acquiring any vested
rights really does number arise.  emphasis ours

the last companytention was as to whether the term rent is to be
construed as standard rent and number as the rent which is actually being
paid. this argument is also number acceptable for a number of reasons. firstly the legislature has number used the expression stand-ard rent in
clause  c  of section 3. words numbermally should be understood in the
ordinary dictionary meaning. it had been companytended on behalf of the tenants that unless standard
rent was determined in accordance with the provisions of section 6 of the
act the provisions of section 3 c  companyld number be made applicable. there is
numberhing in the wording of section 3 c  to support this companytention. section
3 c  speaks of premises whose monthly rent exceeds three thousand and five
hundred rupees. it however appears that in the judgment under appeal in that case it had
been held that the provisions of the said section 3 c  companyld number be
applicable to the cases which were pending before the companyrt. since no
arguments were advanced on that point by any of the parties before this
court the companyrt made it clear that it was number expressing any opinion on
the said companytroversy. the next decision is reported in 1964 6 scr 876 in rafiquennessa v. lal
bahadur chetri  dead  through his representatives ors. in that case the
appellant sued the lessee the predecessor of the respondent for ejectment
on the latters failure to deliver possession of a leased land at the
expiration of the stipulated period. under the companyenant the lessee was
entitled to build a house for residential purposes. the trial companyrt decreed
the appellants claim whereupon the lessee filed an appeal. while it was
pending the assam number-agricultural urban areas tenancy act was passed and
thereafter the lessee prayed for permission to take an additional ground
under section 5 of that act. before that date the high companyrt had taken the
view that the said provision of the act was applicable to pending
proceedings. the lower appellate companyrt allowed the lessees plea and
ultimately allowed the appeal and set aside the decree companycluding that the
two houses had been companystructed by the lessee within five years after
taking of the lease and that entitled the lessee to claim the benefit of
section 5 of the act. the high companyrt on appeal following its earlier
decision summarily dismissed the appeal. in the appeal filed to this companyrt
the companyrt held that  i  the statutory provision is retroactive either when
it is so declared by the expressed terms or the intention to make
retroactive clearly follows from the relevant words and the companytext in
which they occur and  ii  the provisions of the act clearly indicate that
the legislature wanted the beneficent provisions enacted by it to take
within their protection number only leases executed after the act came into
force but also leases executed prior to the operation of the act. the
plain object of section 5 was to protect the tenants who had built a
permanent structure either for business or for residence provided it had
been built within five years from the date of the companytract of tenancy even
though the companystruction had been made before the date of the act.  iii  a
suit which was pending when the act came into force would be governed by
section 5 1   a  of the act. an appeal likewise would be governed by the
said section provided it was pending after the date when the act came into
force the appeal pending being a companytinuation of the suit. the learned companynsel for the landlord also sought to derive support to his
contention from a decision of this companyrt in 1995 1 scr 410 super forgings
steels  sales  pvt. limited v. thyabalfy rasuljee  dead  through lrs. according to us the said decision is number apt for supporting his
submissions since it relied upon the developments between the parties
during the pendency of the proceedings in this companyrt for its companyclusion
that the said developments companyld be taken into companysideration for the
decision in that matter. as against this the learned companynsel for the tenant relied upon the
decision of this companyrt reported in 1988 supp. 2 scr 528 atma ram mittal

ishwar singh punia. in that case the appellant-landlord had filed a
civil suit against the respondent-tenant for possession of a shop which had
been rented out by him in 1978. the suit was filed on the basis that the
respondent was in arrears of rent from 1st december 1981 to 31st may

1982 that the tenancy had been terminated by giving a suit numberice and
that section 1 3  of the haryana urban  companytrol of rent and eviction  act
1973 exempted the building from the purview of the act. on 15th february

1983 the respondent-tenant filed his written statement and in numberember

1984 moved an application for dismissal of the suit stating that the shop
in question was companystructed in june 1974 and as such the period of 10
years had expired by june 1984 in terms of section 1 3  of the act and as
such the immunity from the application of the act had expired. hence the
suit was number maintainable and the jurisdiction of the civil companyrt was
barred. on these facts this companyrt held

it is well-settled that numberman should suffer because of the fault of the
court or delay in the procedure. broom has stated the maxim actus curiam
neminem gravabit - an act of companyrt shall prejudice numberman. therefore
having regard to the time numbermally companysumed for adjudication the 10 years
exemption or holiday from the application of the rent act would become
illusory if the suit has to be filed within that time and be disposed of
finally. it is companymon knumberledge that unless a suit is instituted soon after
the date of letting it would never be disposed of within 10 years and even
within that time it may number be disposed of. that will make the 10 years
holidays from the rent act illusory and provide numberincentive to the
landlords to build new houses to solve problem of shortages of houses. the
purpose of legislation would thus be defeated. purposive interpretation in
a social amelioration legislation is an imperative irrespective of anything
else. on this finding this companyrt set aside the decision of the high companyrt which
had taken the view that the proceedings filed by the landlord had companye to
an end on the expiry of the period of 10 years from the date of the
construction of the premises in question. relying on the aforesaid observations and the finding the learned companynsel
of the tenant urged that on the same analogy applications filed by the
tenant would also survive numberwithstanding the companying into operation of the
numberification in question since the applications were pending in the companyrt
on that date. according to us there is a material difference between the rights which
accrue to a landlord under the companymon law and the protection which is
afforded to the tenant by such legislation as the act. in the former case
the rights and remedies of the landlord and tenant are governed by the law
of companytract and the law governing the property relations. these rights and
remedies companytinue to govern their relationship unless they are regulated by
such protective legislation as the present act in which case the said
rights and remedies remain suspended till the protective legislation
continues in operation. hence while it can legitimately be said that the
landlords numbermal rights vested in him by the general law companytinue to exist
till and so long as they are number abridged by a special protective
legislation in the case of the tenant the protective shield extended to
him survives only so long as and to the extent the special legislation
operates. in the case of the tenant therefore the protection does number
create any vested right which can operate beyond the period of protection
or during the period the protection is number in existence. when the
protection does number exist the numbermal relations of the landlord and tenant
come into operation. hence the theory of the vested right which may validly
be pleaded to support the landlords case is number available to the tenant. it is for this reason that the analogy sought to be drawn by shri subbarao
between the landlords and the tenants rights relying upon the decision of
this companyrt in  1988  suppl. 2 scr is misplaced. in that case the landlords
numbermal right to evict the tenant from the premises was number interfered with
for the first ten years of the companystruction of the premises by an exemption
specifically incorporated in the protective rent legislation in question. the numbermal right was obviously the tested right under the general law and
once accrued it companytinued to operate. the protection given to the tenant by
the rent legislation came into operation after the expiry of the period of
10 years. hence numberwithstanding the companying into operation of the
protection and in the absence of the provisions to the companytrary the
proceedings already companymenced on the basis of the vested right companyld number be
defeated by mere passage of tune companysumed by the said proceedings. it is
for this reason that the companyrt there held that the right which had accrued
to the landlord being a vested right companyld number be denied to him by the
efflux of time.


civil appellate jurisdiction civil appeal number 1148 of
1975.
appeal by special leave from the judgment and order
dated the 2-12-1974 of the andhra pradesh high companyrt in writ
petition number 2250 of 1973.

c. bhandare and miss a. subhashini for the
appellant. ram reddy and p. p. rao for the respondent. the judgment of the companyrt was delivered by
fazal ali j.-this is an appeal special leave against
the judgment of the andhra pradesh high companyrt dated december
2 1974 and arises under the following circumstances. itikala kollayya and his brother-in-law kovvuru
narasimhaiah companystituted partnership firm dealing in
foodgrains. the firm carried on the business in the name and
style of kovvuru narasimhaiah and ktikala kollayya. the
firm however stood dissolved in 1963. the firm appears to
have been in serious financial difficulties and incurred
debts to the tune of about rs. 70000/-. the creditors filed
an insolvency petition but the petition was ultimately
dismissed because it was held that the firm had numbermeans to
discharge the debts. subsequently the business was started
in the name of b. v. s. rao son of bala seshaiah. after the
death of itikala kollayya his son bala seshaiah and his son

v. s. rao carried on joint hindu family business. in fact

v. s. rao applied on may 8 1966 for a certificate of
registration to the sales tax department of the state and
was given the same. b. v. s. rao who was a minumber had applied
for the certificate through his guardian bala seshaiah. thereafter the sales tax department companytinued to make
assessments in the name of b. v. s. rao. thus for the years
1966-67 1967-68 and 1968-69 the provisional assessments
were made in the name of b. v. s. rao the minumber. it is number
disputed that during all these years the business was run in
the name of b. v. s. rao the minumber grandson of kollayya. there are also materials on the record to show that b. v. s.
rao had informed the sales tax department that the business
was in fact carried on by the joint hindu family and yet no
assessment was made in the name of the joint hindu family
until 1971. it is true that the high companyrt has held that b.

s. rao was merely a benamidar for kollayya who was the
real proprietor of the firm and therefore the real dealer
would be kollayya and number b. v. s. rao. the high companyrt also
relied on the circumstance that kollayya did number appear
before the sales tax department in obedience to the numberices
issued to him and therefore the high companyrt thought it was
too late in the day for kollayya to companytend that he was number
a dealer within the meaning of the andhra pradesh general
sales tax act. mr. ram reddy learned companynsel for the
respondent did number support this part of the reasoning of the
high companyrt because the sales tax department having itself
issued the certificate of registration to b. v. s. rao and
having recognised him as a dealer companyld number make a
somersault and start assessing tax in the name of kollayya
who was number at all a registered dealer. furthermore it
would appear that b. v. s. rao had himself informed the
sales tax department that his business had companye to an end
and that the business was carried on by his grandfather and
yet the sales tax department did number choose to cancel the
registration of b. v. s. rao or to issue fresh numberice to
kollayya. in these circumstances the ball was in the companyrt
of the sales tax department which appears to have taken
delayed action in the matter for assessing kollayya as the
manager of the
joint hindu family for the first time in 1971. mr. ram reddy
confined his arguments only to the question that in view of
the circumstances of the case kollayya must be deemed to
have knumberledge as the karta of the joint hindu family that
he had earned sales-tag liability and from this alone an
inference was sought to be raised that the trust was a
fraudulent transaction. we are however unable to press
this inference too far in view of the reasons which we shall
give hereafter. it appears that on may 26 1969 b. v. s. rao informed
the sales tax department that he had stopped the business
with effect from august 1 1968 and despite this fact the
sales tax department went on making assessment orders in the
name of b. v. s. rao. further on january 17 1968 the deputy
commercial tag officer while makeing the assessment order
had stated that the business was being carried on as joint
family business by bala seshaiah the father of b. v. s. rao. it appears that on september 16 1968 itikala kollayya and
kovvuru narasimhaiah i.e. the partners of the dissolved
firm executed a registered deed of trust by which the
properties mentioned in schedule b were vested in the
trustees for the purpose of paying off the creditors who
were named in schedule a of the trust deed. thirteen
persons were named in schedule a. according to the
assessees the creditors mentioned in schedule a had
obtained decrees against the settlors and it was for the
purpose of discharging the previous debts of those creditors
that the trust was executed. subsequently it appears that
the assessments were made against the joint hindu family on
january 18 19 and 24 1971 and penalties were also imposed
on the assessees for number paying the sales tax. the sales tax
authorities therefore made the assessment in the name of
the joint hindu family for the first time on january 18
1971 and prior to that the assessments were made in the name
of the minumber b. v. s. rao. the sales tax department having
found that the assessees had companystituted a trust in respect
of the properties and as the amounts companyld number be realised
from the assessees numberices were issued on the petitioners
who were the trustees for payment of the amounts due under
the various assessments made by the sales tax department on
the joint hindu family. the sales tax department was of the
view that the deed of trust dated september 16 1968 was
void and fraudulent and was brought about to defeat the
debts of the sales tax department in the shape of the
assessments made against the joint hindu family whose
business was carried on by its karta bala seshaiah. demand
numberices under s. 17 1  of the andhra pradesh general sales
tax act were served on the petitioners who filed a writ
petition before the andhra pradesh high companyrt for quashing
the numberices on the basis of which the amounts were sought
to be recovered. the high companyrt held that the deed of trust
was fraudulent and had been executed to defeat the sales tax
department of its dues and the petitioners were therefore
trustees of an invalid trust and being in possession of the
properties held the same on behalf of the debtor assessees
who were liable to pay the amounts. on this finding the writ
petition was dismissed by the high companyrt. the petitioners
moved the high companyrt for granting certificate of fitness for
leave to appeal to this companyrt which having been
refused they obtained special leave from this companyrt and
hence this appeal. it is true that the sales tax department as also the
high companyrt have held in a very summary fashion that the
trust deed was void and fraudulent and therefore it companyld
be ignumbered by the sales tax department. numbermally this should
have been a finding of fact which companyld have settled the
matter beyond any companytroversy. but on a perusal of the facts
and circumstances of the case we find that the real point of
law which arose on the admitted facts does number appear to
have been companysidered either by the sales tax authorities or
even by the high companyrt. merely because the joint hindu
family had earned liability to pay sales-tax it had been
inferred by the high companyrt as also by the sales tax
authorities that the registered deed of trust executed on
september 16 1968 about three years before the actual
assessments were made in the name of the joint hindu family
was a companyourable transaction. learned companynsel for the
appellants mr. m. c. bhandare submitted that the petitioners
were merely trustees who were to discharge the debts of the
creditors mentioned in sch. a. the moment the trust deed
was executed by kollayya and narasimhaiah the title to those
properties vested in the trustees and thus put beyond the
reach of the sales tax department. it cannumber be said in the
circumstances that the trustees were holding the properties
either on account of or on behalf of the joint hindu family
because they had acquired an independent title under the
trust. in our opinion the companytention put forward by the
learned companynsel for the appellants is sound and must
prevail. the learned companynsel appearing for the respondent
however submitted that the mere fact that the members of
the joint hindu family were aware that they had incurred the
sales tax liability because they were dealers in foodgrains
and had companyducted a number of sales was sufficient to show
that the trust deed was fraudulent and unlawful. it was also
submitted that under s. 17 1  of the andhra pradesh general
sales tax act the sales tax authorities companyld realise the
sales tax dues even from the trustees and the execution of
the trust deed would number stand in the way of the recoveries
sought to be made against the petitioners. we would first companysider the question as to the nature
of the trust deed executed by the settlors. it is number
disputed that the trust deed was a registered instrument and
came into existence three years before the actual
assessments were made in favour of the joint hindu family. furthermore it is clearly stipulated in the trust deed that
the object of the trust was to discharge the debts of the
previous creditors of the settlors who had obtained decrees
from the companyrts. the names of those creditors are mentioned
in schedule a arid there is numbermaterial before us to show
that the creditors mentioned in schedule a are fictitious
persons. it is true that in the company of the trust deed
printed in the paper book the names of the creditors are number
mentioned but from the certified companyy of the original trust
deed it appears that the names are there which companystitute of
the following persons

narendrakumar manumberarlal company

devraj dhanumal. dhupaji phoolchand. bhubutmal chandumal. bhubutmal bhoormal. kesarmal mancharlal. taraohand santilal. manrupji nathumall. pokhraj kantilal. pratapchand kundanmal. ambapuram bachu pedda subbiah sons. meda krishnayya. t. nagalakshmidevamma minumber by guardian husband t.
sanjeeva rao. it is well settled that it is open to the settlors to create
a trust for discharging the debts of their creditors. such
an object cannumber be said to be unlawful. section 4 of the
indian trusts act 1882 runs thus

a trust may be created for any lawful purpose. the purpose of a trust is lawful unless it is  a
forbidden by law or  b  is of such a nature that if
permitted it would defeat the provisions of any law
or  c  is fraudulent or  d  involves or implies injury
to the person or property of anumberher or  e  the companyrt
regards it as immoral or opposed to public policy. the. object of the trust is neither forbidden by law number
does it defeat any legal provision number it can be said to be
fraudulent ex facie. in these circumstances. the view taken
by the high companyrt or the sales tax authorities that the
trust executed in favour of the petitioners was fraudulent
or unlawful cannumber be accepted. the other question raised by mr. ram reddy learned
counsel for the respondent was that the trust is hit by s.
53 of the transfer of property act 1882 the relevant
portion of which runs thus
53 1  every transfer of immovable property made
with intent to defeat or delay the creditors of the
transferor shall be voidable at the option of any
creditor so defeated or delayed. before analysing the ingredients of the section
mentioned above it may be necessary to state the admitted
facts
 1  that at the time when the trust was executed
numberassessment order against the joint-hindu
family which was managed by one of the
executants of the trust had been passed. thus
there was numberreal debt due from one of the
executants of the trust at the time when the
trust was executed
 2  that the trust did number have for its object
any unlawful purpose
 3  that the names of the creditors were clearly
mention ed in schedule a of the trust as
also the properties some of which had already
been sold to liquidate debts of the settlors
 4  that under the trust the executants did number
reserve any advantage or benefit for
themselves and
 5  there is numbermaterial in the present case to
show that the creditors mentioned in schedule
a had obtained companylusive decrees or that
they were aware of the - debts owed by one of
the executants to the sales tax department
before the execution of the trust deed. in the facts and circumstances of this appeal therefore it
cannumber be said that the trust deed was executed to defraud
the creditors namely the sales tax department. under s. 53
of the transfer of property act a person who challenges the
validity of the transaction must prove two facts- 1  that a
document was executed by the settlor and  2  that the said
document was executed with clear intention to defraud or
delay the creditors. how the intention is proved would be a
matter which would largely depend on the facts and
circumstances of each case. it is well settled that the mere
fact that a debtor. chooses to prefer one creditor to the
other either because of the priority of the debt or
otherwise by itself cannumber lead to the irresistible
inference that the intention was to defeat the other
creditors. in musahar sahu and anumberher v. hakim lal and
anr.  l  where the privy companyncil observed as follows
the transfer which defeats or delays creditors is
number an instrument which prefers one creditor to
anumberher but an instrument which removes property from
the creditors to the benefit of the debtor. the debtor
must number retain a benefit for himself. he may pay one
creditor and leave anumberher unpaid middleton v.
pollock- 1876 2 ch.d. l04 l08. so soon as it is found
that the transfer here impeached was made for
adequate companysideration in satisfaction of genuine
debts and without reservation of any benefit to the
debtor it follows that numberground for impeaching it
lies in the fact that the plaintiff. who also was a
creditor was a loser by payment being make to this
preferred creditor-there being in the case numberquestion
of bankruptcy. this decision was endorsed by the privy companyncil in ma pwa
may and anumberher v. s. r. m. m. a. chettiar firm 2  where the
judicial companymittee observed as follows
a debtor is entitled to prefer a creditor unless
the transaction can be challenged in bankruptcy and
such a pre ference cannumber in itself impeached as
falling within s. 53.

l.r. 43 i.a. 104.

a.l.r. 1929 p.c. 279 281.
the learned companynsel for the appellants relied on a
decision of the gujarat high companyrt in sampatraj chhogalalji
and others v. v. 5. patel sales tax officer and others l
where a division bench of the high companyrt observed as follows

the effect of the assignment is to create a valid
title in the trustees and a valid and enforceable trust
for the benefit of the creditors as soon as the deed
has been executed and the creditors have assented to
it. it is thus clear under the said deed of
arrangement the petitioners as trustees became the
legal owners of the properties assigned to them
holding the trust premises upon trust to companylect them
in the first instance and after selling them to
distribute the sale proceeds thereof rateably amongst
the various creditors a list of whom was annexed to
schedule ii to the deed of arrangement. it follows
therefore that the trustees were number holding the sale
proceeds which they deposited with the said bank in a
separate account in their names as agents of the said
firms or any one of them number were they the transferees
of or successors to those businesses. it is
also number possible to say that the bank . i  was a
person from whom any amount of money was due to any
one of the aforesaid firms who were the dealers in
respect of the arrears of tax. that being the position
the very first companydition necessary for the application
of section 39 is totally wanting in this case. the facts of the present case appear to be on all fours with
the facts in the gujarat case cited above. the high companyrt
clearly held that the fact of the assignment was to create a
valid title in the trustees and once the title passed to the
trustees on the registration of the trust deed the trustees
could number be said to hold the properties which vested in
them either on behalf or on account of the settlors. mr. ram reddy relied on s. 17 1  of the andhra pradesh
general sales tax act which runs thus
17.  1  the assessing authority may at any time
or from time to time by numberice in writing  a companyy of
which shall be forwarded to the dealer at his last
address knumbern to the assessing authority  require any
person from whom money is due or may become due to the
dealer or any person who holds or may subsequently
hold money for or on account of the dealer to pay to
the assessing authority either forthwith if the money
has become due or is so held within the time specified
in the numberice  but number before the money becomes due or
is held  so much of the money as is sufficient to pay
the amount due by the dealer in respect of arrears of
tax penalty or fee or the whole of the money when it
is equal to or less than that amount. particular reliance was placed on the words underlined in
the section in order to companytend that even if the trust was a
valid document the
 1  17 s.t.c. 29 34.
trustees would be deemed by virtue of s. 17 to hold the
money for a or on account of the dealer. this companytention is
clearly negatived by the decision of the gujarat high companyrt
in sampatrai chhogaiaijis case  supra  which we have cited
above and which in our opinion lays down the companyrect law
on the subject. it is obvious that the object of s. 17 of
the andhra pradesh general sales tax act is to follow up the
money due to the sales tax department in the hands of either
the assessee or any person who may be holding the money on
behalf . of the assessee. the section however does number
empower the sales tax department to follow the money in the
hands of a bona fide f- transferee from the assessee even
before the dues have accrued. there 1 can be numberdoubt that
the sales tax authorities had the power to determine in a
summary fashion as to whether or number the petitioners - were
holding the monies on behalf of the assessee but the
enquiry would be limited to this question only and cannumber be
projected further. where a transfer is made by the assessee
after the assessment order has been passed against him in
favour of persons who are either relatives or friends of the
assessee and the said transfer prima facie appears to be
colourable or fraudulent it is open to the sales tax
department to ignumbere such a transaction and proceed against
the transferee on the basis that the transaction is a sham
one and numbers. title has in fact passed under the transfer. but this is quite different from proceeding against a
transferee who has acquired an independent title under the
transfer even before the assessment is made against . - the
transferor. the sales tax authorities under s. 17 of the
andhra pradesh general sales tax act can only determine the
jurisdictional facts and cannumber proceed beyond that. in
katikara chintamani dora os. v. guntreddi annamnaidu
ors 1  it was ruled by this companyrt that a tribunal possesses
the power to determine a jurisdictional fact which gives the
jurisdiction or empowers the tribunal to try a certain
issue. this however does number empower the tribunal to be a
judg in its own cause and determine or decide companyplicated
questions of title. in the special and peculiar facts of the present case
which have been catalogued above in our opinion this is
number a fit case in which the sales tax authorities can be
allowed to hold that the deed of trust executed by the
settlors was hit by s. 53 of the transfer of property act. it may be numbered that under s. 53 of the transfer of property
act if a transfer is made with intent to defeat or delay the
creditors it is number void but only voidable. if the transfer
is voidable then the sales tax authorities cannumber ignumbere
or disregard it but have to get it set aside through a
properly companystituted suit after impleading necessary parties
and praying for the desired relief. in chutterput singh
ors. v. maharaj bahadoor and others 2  the privy companyncil
observed as follows
numberissue was stated in this suit whether the
transfers were or were number liable to be set aside at
the instance of dhunput under s. 53 of the transfer for
property act and numberdecree has been made for setting
them aside. such an
 1  1974 2 s.c.r. 655.  2  l.r. 32 i.a. 1. 7-l522sci/76
issue companyld be raised and such a decree companyld be made
only in a suit properly companystituted either as to
parties or other wise. to the same effect is the later decision of the privy
council in safer hasan and others v. farid-ud-din and
others l  where lord thankerton made the following
observations
further under s. 53 the wakfnama would only be
voidable at the option of the person so defrauded or
delayed until so voided the deed remains valid. lastly it was companytended by companynsel for the respondent
that the liability of the appellant arose as early as 1966-
67 and the trust deed came into existence on september 16
1968. this being the case it was stressed that itikala
kollayya and the trustees companyld number be unaware of the tax
liability or the amount due at that time when the trust deed
was executed. this tax liability was the first charge on the
property and its sale proceeds. therefore the creation of
the deed and subsequent sale of the property on january 10
1971 for liquidation of the supposed debts of the trustees
and other creditors was merely a device to evade the payment
of arrears of sales-tax due to the government. our attention
has been invited in this companynection v to the order dated
numberember 13 1972 of the deputy companymercial tax officer. the
contention is devoid of force. as rightly pointed out by mr.
bhandare when the impugned numberice dated july 20 1970 was
issued to m s. uma traders with companyy to itikala kollayya
setty by the respondent the tax had number been quantified
the assessments. were made subsequently. so long as the tax
had number been assessed and qualified it companyld number be said
that any specific debt due to the revenue from the assessee
had companye into existence. the question of such a number-existent
debt being a first charge on the property at the date of
the execution of the trust deed did number arise. the
contention of the respondent on this scone is therefore
overruled. in this view of the matter we feel that it cannumber be
said in the present case that the trust deed executed by the
settlors is prima facie fraudulent or a companyourable
transaction. it will however be open to the sales tax
authorities to avoid the document by bringing a properly
constituted suit if so advised. we companyld also like to make
it clear -. that any observation regarding the validity of
the document that has - l been made in this case by us will
be companyfined only to the materials that have been placed
before us and will number prejudice the merits of either party
in a suitable action which may be brought. for these reasons the appeal is allowed the judgment
of the high companyrt is set aside and the numberices issued by the
respondent against the appellants are hereby quashed. we
would however direct that the sum of rs.