original jurisdiction petition number 298 of 1953. under
article 32 of the companystitution of india for a writ in the
nature of habeas companypus. veda vyas senior advocate  s. k. kapur with him  for
the petitioner. p. uniyal for the respondent. 1953. december 3. the judgment of the companyrt was delivered
by
mukherjea j.-this is a petition under article 32 of the
constitution praying for the issue of a writ in the nature
of habeas companypus directing the release of the petitioner
shibban lal saksena who is said to be unlawfully detained
in the district jail at gorakhpur. the petitioner was arrested on the 5th of january
1953 under an order signed by the district magistrate of
gorakhpur and the order expressly directed the detention of
the petitioner in the custody of the superintendent
district jail gorakhpur under subclauses  ii  and  iii  of
clause  a  of section 3  1  of the preventive detention act
1950 as amended by later acts. on the 7th of january
following the grounds of detention were companymunicated to the
detenue in accordance with the provision of section 7 of
the preventive detention act and the grounds it appears
were of a two-fold character falling respectively under the
two categories companytemplated by sub-clause  ii  and sub-
clause  iii  of section 3  1   a  of the act. in the first
paragraph of the companymunication it is stated that the detenue
in companyrse of speeches delivered at ghugli on certain dates
exhorted and enjoined upon the canegrowers of that area number
to supply sugarcane to the sugar mills or even to withhold
supplies from them and thereby interfered with the
maintenance of supply of sugarcane essential to the
community. the other ground specified in paragraph 2 is to
the effect that by
using expressions some of which were quoted underneath the
paragraph the petitioner incited the cane-growers and the
public to violence  against established authority and to
defiance of lawful orders and directions issued by
government officers and thereby seriously prejudiced the
maintenance of public order. the petitioner submitted his representation against
the detention order on the 3rd of february 1953 and his
case was companysidered by the advisory board companystituted under
section 8 of the preventive detention act at its sitting at
lucknumber on the 23rd february following. the advisory board
gave a hearing to the petitioner in person and after it had
submitted its report a companymunication was addressed on
behalf of the -uttar pradesh government to the petitioner on
the 13th of march 1953 informing him that the government
in exercise of its powers under section 11 of the
preventive detention act had companyfirmed the detention order
against him under sub-clause  ii  of section 3  1   a  of
the act and sanctioned the companytinuation of his detention
until further orders or up to a period of 12 months from
the date of detention. the second paragraph of this
communication runs as follows
the detenue may please be informed that the
advisory board did number uphold his detention under sub-clause

of clause  a  of sub-section  1  of section 3 of the
preventive detention act. government have therefore revoked
his detention under this sub-clause. the petitioner has number companye up before us with an
application under article 32 of the companystitution and mr.
veda vyas who appeared in support of the petition has
challenged the legality of the detention order made against
his client substantially on two grounds. it is argued in the first place that from the grounds
served upon the petitioner under section 7 of the preventive
detention act it appears clear that the grounds which
weighed with the detaining authority in
depriving the petitioner of his liberty are that his
activities were in the first place prejudicial to the
maintenance of supplies essential to the companymunity and in
the second place were injurious to the maintenance of public
order. from the companymunication dated the 13th of march
1953 addressed to the petitioner it appears however that
the first ground did number exist as a fact and actually the
uttar pradesh government purported to revoke the detention
order under sub-clause  iii  of section 3  1   a  of the
preventive detention act. in these circumstances it is
contended that the detention order originally made cannumber
stand for if the detaining authority proceeded on two grounds
to detain a man and one of them is admitted to be number-
existent or irrelevant the whole order is vitiated as no
one can say to what extent the bad ground operated on the
mind of the detaining authority. the other companytention raised by the learned companynsel is
that the particulars which were supplied to his client in
connection with the second ground are manifestly inadequate
and of a partial character and do number enable him to make an
effective representation against the order of detention. we may say at once that the second companytention does number
impress us. it is true that the sufficiency of the
particulars companyveyed to a detenu in accordance with the
provision embodied in article 22  5  of the companystitution is
a justiciable issue the test being whether they are
sufficient to enable the detenu to make an effective
representation but we are number satisfied that the
particulars supplied to the detenu in the present case are
really inadequate and fall short of the companystitutional
requirement. we do number think therefore that there is any
substance in this companytention. the first companytention raised by the learned companynsel
raiseshowever a somewhat important point which
requires careful companysideration. it has been repeatedly held
by this companyrt that the power to issue a detention order
under section 3 of the preventive detention act
5-93 s. c. india/59
depends entirely upon the satisfaction of the appropriate
authority specified in that section. the sufficiency of the
grounds upon which such satisfaction purports to be based
provided they have a rational probative value and are number
extraneous to the scope or purpose of the legislative
provision cannumber be challenged in a companyrt of law except on
the ground of mala fides  1 . a companyrt of law is number even
competent to enquire into the truth or otherwise of the
facts which are mentioned as grounds of detention in the
communication to the detenue under section 7 of the act. what has happened however in this case is somewhat
peculiar. the government itself in its companymunication dated
the 13th of march 1953 has plainly admitted that one of
the grounds upon which the original order of detention was
passed is unsubstantial or numberexistent and cannumber be made a
ground of detention. the question is whether in such
circumstances the original order made under section 3
 1   a  of the act can be allowed to stand. the answer in
our opinion can only be in the negative. the detaining
authority gave here two grounds for detaining the
petitioner. we can neither decide whether these grounds are
good or bad number can we attempt to assess in what manner and
to what extent each of these grounds operated on the mind of
the appropriate authority and companytributed to the creation of
the satisfaction on the basis of which the detention order
was made. to say that the other ground which still
remains is quite sufficient to sustain the order would be
to substitute an objective judicial test for the subject
decision of the executive authority which is against the
legislative policy underlying the statute. in such cases
we think the position would be the same as if one of these
two grounds was irrelevant for the purpose of the act or was
wholly illusory and this would vitiate the detention order
as a whole. principle which was order as a whole. this
principle which was recognised by the federal companyrt in the
case of keshav talpade v. the kingb emperor  2  seems to us
to be quite sound and applicable to the facts of this case. vide state of bombay v. atma ram sridhar vaidya 1951

c.r. 167.  2  1943 f.c.r 88.
we desire to point out that the order which the
government purported to make in this caseunder section
11 of the preventive detention act is numberone in
conformity with the provision of that section. section 11
lays down what action the government is to take after the
advisory board has submitted its report. if in the opinion
of the board there is sufficient reason for the detention of
a person the government may companyfirm the detention order and
continue the detention for such period as it thinks proper. on the other hand if the advisory board is of opinion that
there is numbersufficient reason for the detention of the
person companycerned the government is in duty bound to revoke
the detention order. what the government has done in this
case is to companyfirm the detention order and at the same time
to revoke it under one of the sub-clauses of section 3  1
 a  of the act.


civil appellate jurisdiction civil-appeal number 283 of
1972.
appeal by special leave from the judgment and order
dated 12-7-1971 of the delhi high companyrt in of 1967.
income tax reference number 31 of 1967.
bishamber lal for the appellant. s. desai j. ramamurthi and r.n. sachthey for the res-
pondent. the judgment of the companyrt was delivered by
sarkaria j. this appeal by special leave is directed
against a judgment dated july 12 1971 of the high companyrt
out of these facts
the appellant  hereinafter referred to as the assessee
is an individual. the assessment year is 1955-56.
bharat union agencies pvt. limited had spent rs.53398/-
after the personal necessities of the assessee during the
previous year ending 30-9-1964 without charging for the
same. the assessee was number a director of the said companypany. he however was the beneficial owner of 1800 shares out of
the total of 3000 equity shares of the said companypany during
the previous year. similarly alien berry and company pvt. limited
had spent a sum of rs. 4406/- after the personal necessities
of the assessee without charging for the same. the income-tax officer treated the total benefit of rs. 57804/- received by the assessee from these two companypanies
as his income under s. 2 6c  iii  of the income-tax act
1922 which was introduced by the finance act 1955 with
effect from 1-4-1955 and charged it to tax along with
some other items of income. the assessee carried an appeal to the appellate assistant
commissioner who found that the assessee was beneficial
owner of the shares of bharat union agencies pvt. limited
carrying more than 20 per cent of the voting power. he
further held on the basis of certain findings in the
report of the companymission of inquiry on the administration of
dalmia jain companypanies published in 1963 that the assessee
had 100 per cent of the share-holding companytrol of allen
berry and company pvt. limited the appellate assistant companymis-
sioner did number specifically deal with the question whether
the assessee was companycerned in the management of both these
companies. in the result he upheld the order of the
income-tax officer. the assessee preferred a further appeal to the income-
tax appellate tribunal which held that the assessee was
concerned in the management of the bharat union agencies

ltd. being the beneficial owner of shares carrying more
than 20 of the voting power and as such the benefit of rs. 53398/- received by him from that companypany was his in-
come within the later part of clause  iii  of s. 2 6c  of
the income-tax act 1922. on this reasoning the tribunal
dismissed the assessees appeal in regard to the item
of rs. 53398/-. however it allowed on a different ground
his appeal with regard to the item of rs. 4406/- received
from alien berry and company  p  limited in this appeal we are number
concerned with that item any more. at the instance of the assessee the tribunal stated the
case and referred the following question under s. 66 1   of
the income-tax act 1922 to the high companyrt
whether on the facts and in the circum-
stances of the case the sum of rs. 53398/-
spent by bharat union agencies p. limited
after the personal necessities of the assessee
is income within the meaning of section
2 6c  iii  of the income-tax act 1922.
the high companyrt answered this question against the asses-
see. hence this appeal. at the outset shri bishamber lal appearing for the
appellant tried to companytend that the item of rs. 53398/-
received by the assessee from bharat union agencies pvt. limited was number a benefit or perquisite within the companytempla-
tion of s. 2 6c  iii  of the 1922 act because firstly the
constituents of this item were number cash amounts but gifts or
bounties and secondly the receipt of this benefit by the
assessee was unauthorised and companyld number be claimed by him
as of right on the basis of any agreement with the companypany. this was altogether a new plea. it was number even indi-
rectly raised before the authorities under the income-tax
act or the high companyrt. it has number been raised even in the
special leave petition under article 136 of the companystitu-
tion. it was never the case of the assessee that this
amount of rs. 53398/- was number benefit obtained by
the assessee from the companypany within the meaning of s. 2 6c
 iii . on the companytrary it is apparent from the judgment of
the tribunal that there was numberdispute about the fact that
the assessee received benefits from both the companypanies to
the extent stated by the authorities below. i.e. benefits
to the extent of rs. 53398/- and rs. 4406/- were received
by the assessee from bharat union agencies p. limited and
allen berry and company pvt. limited respectively. the plea number
sought to
be raised in regard to the item of rs. 53398/- involves a
question of fact. we therefore did number permit the companynsel
to raise this plea for the first time at the time of argu-
ments before us. companynsel next companytended that the expression companycerned
in the management of the business of the companypany takes in
only that person who by virtue of a position or office held
by him in the companypany legally and actually participates in
the management of its business and number he who holds numbersuch
position or office but is in remote companytrol of the companypany
and its affairs merely on account of being in ownership of a
certain number of shares carrying more than 20 per cent or
even the majority of the voting power. in support of this
restricted companystruction of the term companycerned companynsel
referred to a decision of the madras high companyrt in arya
bhavan madras v.m.s. narayana rao 1  wherein rajamannar

j. held that the word companycerned as used in the companytext
of workman in s. 22 of the industrial disputes  appellate
tribunal  act 1950 companynumberes a more intimate and direct
relation to the matter than the word interest and there-
fore this term should be given a more restricted meaning
than the word interest. mr. bishamber lal also referred to
the meaning of the terms companycerned companycerning as given
in the dictionary words and phrases permanent edition
pp. 504-505 vol. 8.
before dealing with this companytention it will be appro-
priate to examine the material part of s. 2 6c  iii  of the
1922 act which runs as follows

the value of any benefit or
perquisite whether companyvertible into money or
number obtained from a companypany either by a
director or by any other person who has a sub-
stantial interest in the companypany  that is to
say who is companycerned in the management of the
business of the companypany being the beneficial
owner of shares number being shares entitled to
a fixed rate of dividend whether with or
without a right to participate in profits
carrying number less than twenty per cent of
the voting power  and any sum paid by any
such companypany in respect of any obligation
which but for such payment would have been
payable by the director or other person afore-
said. from an analysis of clause  iii  it is clear that it
falls in two distinct parts. the first part is companyfined
to the obtaining of the value of any benefit or perquisite
from a companypany by a director even if he has numbersubstantial
interest in the companypany. the second part applies to a
person who may number be a director but has a substantial
interest in the companypany. what is substantiai interest is
further equated by the succeeding expression that is to
say with the companyxistence of two elements namely  i
concern in the management of the business of the companypany
and  ii  beneficial ownership of shares  number being shares
entitled to a fixed rate of dividend  carrying number less than
twenty per cent of the voting power. there is numberdispute
before

a.i.r. 1960 mad. 143.
us that the assessee had obtained the benefit of rs. 53398/- from bharat union agencies pvt. limited it is further
admitted that he holds 1800 shares out of the total of 3000
equity shares in this companypany carrying a voting power of
60 per cent. thus the existence of the second element is
more than satisfied. companytroversy pivots around the first
element only. the arguments which have been advanced before us on
behalf of the assessee with regard to the companystruction and
application of the expression companycerned in the manage-
ment of the business of the companypany were canvassed
before the tribunal also. the tribunal repelled these
arguments. the reasoning of the tribunal with which the
high companyrt found itself entirely in agreement--is as under
shri sharma companyceded the position that
the assessee was companytrolling both the companypa-
nies. in questionto exercise companytrol over a
company is something more than to manage the
company. a person who manages the companypany
may number necessarily be in a position to company-
trol the business or affairs of the companypany. he may be managing under the instructions of. those who are companytrolling the companypany. but
a person who companytrols a companypany also directly
or indirectly through the managerial staff
manages the business of the companypany. it is
again number necessary that the person who man-
ages the business of the companypany should
be rightfully entitled to do it. a person
who is number rightfully entitled to manage the
business of the companypany but usurps the power
by virtue of his certain position is in our
opinion certainly a person companyered by this
expression. it is also number necessarythat
the management should be carried on in an
ostensible manner. one who carried on the
management indirectly and imperceptibly
through the persons who outwardly and ostensi-
bly carry on the management is companyered by the
expression. it is number necessary in our
opinion that the management should be both
seen and felt it is sufficient if it is
felt without being seen. in our opinion the above is a companyrect exposition of the
law on the point. the word companycern is number a term of art
having a precise fixed meaning. it has several nuances
and is used to companyvey diverse shades of meaning over a wide
spectrum. it may mean to have a relation to or bearing
on be of interest or importance or to have an anxiety
worry. companycerned as an adjective may mean interested
involved. in one companytext it may mean one thing and in
a different companytext anumberher. the decisions as to the mean-
ing of this word used in a different companytext in anumberher
statute are scarcely of much value in companystruing it in
the setting of the provision with which we are companycerned. the best way therefore to companystrue this word is with refer-
ence to the companytext in which it is used. in sub-clause

of s. 2 6c  of the income-tax act 1922 the word
concerned takes its companyour from the words in the manage-
ment of the business in association with which it occurs. in the companytext of business manage means to companytrol to
guide to administer to companyduct or direct affairs
carry on business  shorter oxford dictionary webster new
world dictionary . management includes the act of manag-
ing by direction or regulation or administration or company-
trol or superintendence. companystrued with reference to the companytext and the circum-
stances of a case the expression person companycerned in the
management of the business may take in number only .a person
who directly participates or engages in the management of
the business but also one who indirectly companytrols its man-
agement through the managerial staff from behind the
scenes. the assessees admission that he is in companytrol of
the companypany necessarily includes an admission of his being
concerned in the management of the business of the companypa-
ny we therefore agree with the high companyrt that the
ambit of the term companycerned in s. 2 6c  iii  cannumber be
restricted to a person who is an employee of the business or
an office-holder of the companypany. in the companytext of manage-
ment it is wide enumbergh to include every person interested
in the management in the sense of having the direction and
control of the managerial staff.


civil appellate jurisdiction civil appeals number. 379 to 383
of 1959.
appeals from the judgment and orders of the ex-judicial
commissioners companyrt bhopal  number madhya pradesh high companyrt
dated april 9 30 1956 in misc. civil case number. 13 of
1954 and 21 and 35 of 1955 dated april 9 27 1956 in misc. civil case number 25 of 1955 and dated april 9 17 1956 in
misc. civil case number 49 of 1955.

sen and i. n. shroff for the appellants. c. setalvad and m. s. gupta for respondents  in c.a. number 380/59 . k. fain for respondents in  c.a. number. 381-383/59.  december 19 1963. the judgment of the companyrt was delivered
by
ayyangar j.-these five appeals which have been companysolidated
for hearing raise for companysideration principally two points
 1  the companystitutional validity of the
bhopal reclamation and development of lands
 eradication of kans  act 1954  act xiii of
1954  which will be hereafter referred to as
the apt and
 2  whether the provisions of the act even
if companystitutionally valid were companyplied with
in the case before us. the act the provisions of which we shall set out and
examine later empowered the state government to numberify
areas of the state as kans infested areas and on such
numberification officers of the state were enabled to enter on
the lands within the numberified areas and companyduct deep
ploughing tractorisation operation with a view to eradicate
the kans. we might mention even here that kans are a
species of weeds which infest large areas of land in and
around the former state of bhopal number forming part of
madhya pradesh. the weeds are hardy quick growing rapidly
expanding the area of their infestation and sap the
fertility from the soil and thus lead to very poor yield of
the land and if the growth is more extensive practically
prevent any crops. the act provided for the companyt incurred
in these eradication operations being recovered from the
farmers on whose lands the tractorisation was effected. acting under the said law companysiderable extents of land in
the former state of bhopal were tractorised and demands were
made on the owners of the lands for the payment of the
charges claimed as due. five of these farmers on whom these
demands were made thereupon filed petitions under art. 226
before the judicial companymissioner bhopal challenging the
constitutionality of the act as well as the legality of the
levy even assuming the law to be valid and these petitions
were allowed and the learned judicial companymissioner holding
the act to be unconstitutional and the levy illegal granted
the declaration and mandamus prayed for. the appellants
thereafter applied for and obtained from the judicial
commissioner certificates of
fitness under art. 133 1   c  and have preferred the appeals
which are number before us. we shall narrate a few facts which serve as a background to
the enactment of the legislation number impugned and which
would also throw some light on some of the points urged by
the respondents. it was recognised as early as the first
decade of this century that without the eradication of kans
there companyld be numberimprovement in the return from the land in
the bhopal and surrounding areas. the question was as to
how this was to be accomplished. with this end in view
research was companyducted by the imperial companyncil of
agricultural research from about 1940 onwards and as a
result it was companycluded that the only method of eradicating
the pestilential weed was by deep ploughing of the land with
tractors which would reach a sufficient depth wherefrom the
roots of the weed companyld be pulled out and exposed and thus
destroyed. this companyclusion was accepted by the then
government of bhopal who between the years 1944-48 carried
out experiments by tractorisation or deep ploughing of lands
in several areas of the state. the experiments demonstrated
that tractorisation would increase the outturn of crops. this experimental ploughing was however companyfined to
particular villages and areas in the state but the results
achieved in them showed that if done systematically deep
ploughing by tractors would help to eradicate the pest and
increase the yield from the land. in order to carry out
this purpose an ordinance xxxviii of 1949 was promulgated on
october 20 1949 whose provisions were substantially
identical with those companytained in the act which we shall
presently read. the numberifications number impugned defining the
areas to undergo tractorisation  which included in them the
places where the lands of the respondents are situated  were
issued under this ordinance. similarly the numberices
demanding payment of sums from the respondents whose
validity is likewise challenged were also issued under it
the ordinance however it is number admitted was
constitutionally incompetently promulgated and had
therefore numberlegal validity. all action however taken
under the ordinance was validated by the act and by its
s. 17 all acts done numberifications issued
authorisations inquiries made duties assigned numberices
served or any action taken with respect to or on account of
eradication of kans during the period companymencing october 20
1949 and ending with the date of the companymencement of this
act etc. shall be as valid and operative as if they had been
done issued made assigned served or taken in accordance
with the law. the validity of this provision which was
upheld by the judicial companymissioner is number challenged before
us and therefore numberwithstanding that the numberifications
which will be referred to later were issued anterior to the
enactment of the act that circumstance is immaterial for
considering their effectiveness. before however proceeding with the narration of the facts
and particularly with those touching the issue of the
impugned numberifications and the numberice of demand we companysider
it would be companyvenient to set out the relevant provisions of
the act and in particular those whose companystitutional
validity is challenged. it may be mentioned that the act
received the assent of the president on numberember 7 1954 and
was published in the state gazette on numberember 25 1954.
its preamble recites that it was enacted to provide for the
reclamation and development of lands by eradication of kans
weed in certain areas of the state of bhopal. section 2
contains the definitions and cl.  c  defines a kans area
wherein eradication operations are to be companyducted under the
provisions of the act as meaning the area which the
government may by numberification declare under sub-s.  1  of
s. 4 to be an area infested with kans. section 3 empowers
the government to appoint a reclamation officer. section 4
is one of the main provisions whose validity is challenged
and has therefore to be set out in full
4.  1  if the government is of opinion that
any area is infested with kans it may by
numberification declare such area giving full
particulars thereof to be a kans area for the
purpose of this act. such numberification shall be a sufficient
numberice of the fact stated therein to all
persons holding
or having interest in the land companyprised in
such area. the reclamation officer shall give
publicity to the numberification issued under
sub-section  1  in such manner as he deems
fit. the reclamation officer may enter upon
any land in such area and take possession
thereof for such period as may be necessary
for the purpose of eradication of k
ans from
such area and carry on other ancillary
subsidiary operations therein. section 5 provides for the companystitution of a reclamation
board-a provision to which we shall have occasion to refer
at a later stage. section 6 deals with the companysequences of
a numberification under s. 4 1  and with the matters which take
place thereon and is thus intimately companynected with s. 4 and
we shall therefore set it out in full
6.  1  on issue of a numberification under sub-
section  1  of section 4 the reclamation
officer and his subordinates and workmen
authorised by him in this behalf may
numberwithstanding the provisions of the bhopal
land revenue act 1932  tv of 1932 -
 a  enter upon any land in the kans area for
the purpose of survey and any other ancillary
purpose and
 b  taken possession of the whole or any
part of the kans area and carry on eradicating
and other ancillary and subsidiary operations
therein. numberperson shall use the land so numberified
for any purpose till such date as the
reclamation officer after the companypletion of
the reclamation and demarcation operations
may by numberification in the official gazette
specify for the restoration of the same to the
person who was on the date of taking over in
lawful
possession of the same or was entitled to such
possession
provided that numberrevenue shall be charged from
a person whose land has been taken over by the
reclamation officer under this section in res-
pect of the period during which the land has
so remained in the possession of the said
officer. for the purposes of this section any
reference to the person entitled to take
possession of land numberified above shall if
he is dead be deemed to include a reference
to his successors in interest. the numberification mentioned in sub-
section  2  shall be final and full
discharge of the government from all liability
in respect of such delivery of possession and
the possession of the land shall on the date
specified in this behalf be deemed to have
been delivered by the government to the person
entitled to it. section 7 provides the machinery for ascertaining the share
of the companyt which has to be paid by persons having interest
in the land who have benefited by the tractorisation and it
is the procedure companytained in this section that is stated to
have been departed from in making the demands on the
respondents by reason of which the respondents successfully
resisted the demands made on them. section 7 runs
7.  1  the total expenditure incurred or to
be incurred by the government on eradicating
or other ancillary or subsidiary operations in
the kans area shall be equitably apportioned
by the reclamation board between the several
holders of or persons having interest in the
lands companyprised in the kans area. every person holding or having interest
in the land in which eradicating or other
ancillary or subsidiary operations have been
carried out or intended to be carried on
shall be liable to pay the companyts of such
operations on his land. the reclamation officer shall fix the
amount of companyts payable by each holder or
other person having interest in the land
comprised in the kansa area. the amount so
fixed shall be charged on the land to which it
relates and shall number be called in question
in any suit or other legal proceedings. the reclamation officer shall also
determine whether the amount so apportioned
shall be paid by the person holding or having
interest in the land in one lump sum or by
such annual instalments as he may fix for the
amount. the payment mentioned in sub-section
 4  may be made in cash or agricultural
produce of such land or both. if the actual companyt of the eradicating or
other subsidiary or ancillary operations
exceeds or falls short of the amount to be
payable by a holder of or other person having
interest in the land the difference shall be
returned to or recovered from the person
concerned as the case may be. the machinery for companylection is companytained in s. 8 and it is
enumbergh to point out that it makes provision for the reclama-
tion officer serving on the person holding or having
interest in the land in which eradication operations have
been carried out a numberice of demand which in the companytext
would mean such sum as has been determined under s. 7 and
for the recovery of the said sum as an arrear of land
revenue section 9 makes provision for the payment of
compensation and it is one of the sections of the act which
have been struck down for unreasonableness. it enacts
9.  1  any person may within thirty days
from the date of the taking over of
the land
under section 6 apply to the reclamation
board for payment of companypensation for
destruction of or damage to any plant tree
building hut or-other structure in his land
as a result of the eradicating operation. on receipt of such application the
reclamation board may make such inquiry as it
deems fit and if in its opinion the payment
of companypensation is justified it may grant
such companypensation as it deems fit. the decision of the reclamation board
shall be final in all respects and shall number
be called in question in any companyrt of law. though some of the other sections of the act have been dealt
with and examined by the learned judicial companymissioner they
do number bear materially on the points which have been urged
before us in the appeals and we do number therefore companysider
it necessary to refer to them. to resume the narration of the facts leading to the filing
of these petitions it would suffice to mention those
relating to any one of these petitions as those of the
others are substantially similar. we shall refer to the
facts in case 18 of 1954 from which c.a. 379 of 1959 has
arisen as illustrative of the rest. on january 18 1951 a
numberification was issued by the chief companymissioner under s.
4 1  of the ordinance declaring all the villages in seven
tehsils which were set out in it as kans areas and this
was published in the gazette on january 27 1951. this
numberification was amended by a further numberification dated may
30 1951 by which all the villages in two more tehsils were
added to the original seven. among these newly added was
tehsil huzur in which the lands of the petitioners who
number thirty were situate. needless to add that this
amendment was also published in the gazette. subsequently
on numberember 21 1952 there was a numberification stating inter
alia that 10 named villages in tehsil huzur were being taken
over for tractorisation operations during the ensuing
season and after this these operations were companyducted on
the lands of the petitioners. thereafter on february 4
1953 a companymunication was addressed by the land reclamation
officer bhopal to the tahsildar huzur among other tahsils
which read to quote the material passage
i forward herewith demand lists of villages
of your tehsil in respect of the
tractorisation charges for the season 1951-52.
pending final decision
regarding exact rates of bush clearance and
ploughing it has been found advisable that
collection may be made at the rate of rs. 10
per acre towards first instalment of the
demand. as soon as the rates are finalised
intimation as to the exact rate will b
e sent to
you to adjust the account likewise. this was finalised at a later date on receipt of intimation
from the government of india on august 12 1953 but the
figure was modified slightly in march 1954 and again in
october 1954 by a revision to a lower figure but numberhing
turns on the modifications because the challenge in the
petitions to the demand does number turn on the quantum of the
levy or its unreasonableness quoad the service rendered. when demands were made on the petitioners for the payment of
the first instalment at rs. 10 per acre they filed the
petition 18 of 1954 and sought relief primarily by way of
 1  a declaration that the ordinance and the act which
repealed and re-enacted it with retrospective effect were
unconstitutional and void  2  a permanent injunction
restraining the state and its authorities from enforcing the
demands on them. the petition also prayed for certain other
reliefs which were number granted and are numberlonger material. the judicial companymissioner substantially allowed the petition
and granted the principal reliefs sought and hence this
appeal. as stated earlier the companytents of the other
petitions are substantially the same and all these five
were dealt with by a companymon judgment and so it is
unnecessary to set them out. four points were urged by mr. sen-learned companynsel for the
appellant  1   that the learned judicial companymissioner was
wrong in holding that the principal and operative sections
of the act were unconstitutional and void 2  that the
procedure prescribed by ss. 7 and 8 of the act for enabling
the demand to be made was substantially companyplied with 3
that even if the act be unconstitutional still it must be
taken to have been validated by the madhya pradesh re-
clamation of lands  extension to bhopal  act 1957 by which
the madhya pradesh act whose companystitutional validity was
number open to challenge had been extended to the bhopal
area  4  that in any event having regard to the benefit
that had been companyferred on the farmers by the tractorisation
operations the charges which were demanded companyld be
recovered under s. 70 of the indian companytract act. we shall deal with these submissions in that order. the first of the sections of the act which has been held
unconstitutional is s. 4 1 . under it would be seen the
government is empowered by numberification to declare areas
as kans areas if it is of opinion that any area is
infested with kans. two points were urged in support of
the challenge to the validity of this provision and both of
them have been accepted by the learned judicial
commissioner. they were first that the provision
constituted an excessive delegation of legislative power
and secondly that the power thus companyferred was arbitrary
and companystituted an unreasonable restriction on the right to
hold and enjoy property and therefore violative of arts. 14
and 19  1    f  of the companystitution. we agree with mr. sen
that s. 4  1  does number suffer from the vice of excessive
delegation of legislative power. the preamble and long
title of the act make it clear that the enactment is one
for the reclamation and development of lands by the
eradication of kans weed in certain areas in the state the
purpose being specified as the eradication of kans in areas
infested with it. the legislative policy behind the
provision is thus writ large and what remains and is left
to the executive is to carry out that mandate and give
effect to the law so as to achieve the purposes of the act. the areas infested is manifestly number capable of legis-
lative definition but must obviously be left to the
executive to determine having regard to the intensity of the
weed infestation and its distribution. there is thus
legislative guidance offered of the criteria which must be
borne in mind by the government before any area is declared
as a kans area and if the determination of the particular
area is left to the executive it cannumber be said to be any
delegation of legislative power at all. the second point however about the power companyferred being
unreasonable in the companytext of the other provisions of the
act deserves more serious companysideration. in this companynection
it is necessary to numberice certain admitted facts. the numberification under s. 4 1  dated january 18 1951 read
in companyjunction with the addition made by a further numberi-
fication dated may 30 1951 already referred to declared
all the villages in 9 tehsils which were named to be kans
areas. it was the companyplaint of the respondents who were
the petitioners in the writ petitions that their lands were
number kans infested and that the numberification was issued and
the subsequent proceedings thereunder taken without giving
them an opportunity of establishing that fact. numberdoubt it
was the case of the state that this companyplaint was number
correct and that the lands were in fact kans infested. in
this companynection however it is necessary to refer to one
fact which is a matter of admission. among the affidavits
filed in support of the written statement by the state was
one by syed majid ali who had companyducted previous experiments
under the imperial companyncil of agricultural research and who
was one of those on whose recommendation it was decided that
tractorisation was the best method of eradicating kans. he
stated in paragraph 9 of his affidavit
before i started my experiments in the state
of bhopal a statement showing kans infestation
tehsil-wise had already been prepared by the
state authorities and it is filed in the case. a companyresponding map was also prepared and that
is also filed in the case. the map that was prepared then and which was filed in the
case showed the lands in the state divided into three groups
of areas dependent on the intensity of the kans infestation
and these three groups of areas were differently companyoured
the highest intensity companyprised areas in which the infesta-
tion was 60 per cent those between 40--60 per cent formed
the second class while those below 40 per cent formed the
last. a glance at the map which is part of the record
before us shows an uniform companyouring throughout these three
groups of areas which is apt to indicate that in all the
tehsils which are included in any of these three groups
there was uniform infestation to the percentages indicated. mr. sen strongly relied on this map as establishing this. but that this is number a companyrect picture of the spread of
infestation -appears to be made out by the statement
prepared in july
1941 which is the document first referred to by syed majid
ali. in this statement which is marked as ex. n/4 the
state is divided into two districts-one western and the
other eastern-the former companyprising 7 tehsils and the latter
ll. it gives a break-up of the occupied and the unumbercupied
land the area of each tehsil-wise the area which has been
cleared of kans in each tehsil and the area still remaining
similarly infested. taking the 1st of the tehsils which is
included in the numberification dated january 18 1951-
nasrullaganjit is seen from ex. n/4 that of the occupied
land 8478-86 acres were kans infested while 2101603 acres
were areas which had been cleared. it might number be clear
from these figures whether the areas cleared were merely
some isolated fields or larger companytiguous patches but one
thing is clear that the entire tehsil or rather the entire
occupied land in the tehsil was number kans infested as the map
would indicate but there were companysiderable portions in
which eradication operations had been carried out already. it is possible that between the years 1941 when this
statement was prepared and january 1951 when the
numberification under s. 4 1  of the act was issued lands
which had once been cleared might again have become infested
but anyway it would show that before there was any
interference with the right of the farmers to their property
they should have been given an opportunity to prove to the
satisfaction of the authorities that their land was number kans
infested and therefore did number need tractorisation. the
provision companytained in s. 4  4  under which the reclamation
officer is empowered to enter upon any land in the area so
declared under s. 4  1  and companymence and companyplete
eradication operations has also to be taken into account in
this companytext. if at least at the stage when the reclamation
officer selected the particular land in which the
eradication operation was to be companyducted there was numberice
required to be given to the owner or the occupier in order
to give him an opportunity to establish that numberwithstanding
his land being included in the numberification under s. 4 1
the particular land in which he was interested was number kans
infested and therefore did number stand in need of any
eradication operation the provision in s. 4 1  would number
have been open to serious challenge. but even at the second
stage when the officer was empowered to select
the land for the purpose of giving effect to the provisions
of the act and companyduct tractorisation operations thereon
the act companytains numberprovision for the persons interested
having such an opportunity. we companysider therefore that s.
4 1 . read in companyjunction with the power companytained in s.
4 4  companypled with the absence of any provision for
entertaining objections would in the circumstances of there
being admittedly patches of land in the same tehsil which
had bead cleared at least in 1941 must be characterised as
arbitrary and imposing an unreasonable restriction on the
right to hold and enjoy property within art. 19 1   f . the
operation of the several sub-sections of s. 6 to which we
shall immediately make reference reinforces our companyclusion
as regards the unconstitutionality of the provisions of s.
4 1  read with s. 4 4 . under s. 6 1  b  immediately on
the issue of a numberification under s. 4 1  the reclamation
officer is empowered to take possession of the whole or any
part of the kans area and carry on eradicating and other
ancillary and subsidiary operations therein. number in regard to this it was submitted that this provision
under which the land-owner is deprived of the possession of
his property is unconstitutional as violative of art 31
 2  as it originally stood before the 4th amendment. that
article then ran
numberproperty movable or immovable shall
be taken possession of or acquired for public
purposes under any law authorising the taking
of such possession unless the law provides
for companypensation for the property taken
possession of and either fixes the amount
of the companypensation or specifies the
principles on which and the manner in which
the companypensation is to be determined and
given. the argument urged on behalf of the respondents and which
the learned judicial companymissioner accepted was based on the
circumstance that numbercompensation was provided for the
taking possession by the state or an officer acting on its
behalf of the lands numberified under s. 4 1  and  4 . mr.
sen however submitted two answers to this objection. the
first was that the duration during which the owner was
deprived of possession if at all was so short as number to
amount to taking possession within art. 31  2 . this was
also presented in a slightly modified form by stating that
there was in reality numbertaking of possession at all but that
the reclamation officer merely entered on the land and
carried out the tractorisation operation without disturbing
the possession of the owner. the argument that the land-
owner is number disturbed in his possession by the
tractorisation operations and that he is number deprived of the
same by the operation of the act proceeds upon overlooking
the provisions which directly point to possession of the
land statutorily passing to the reclamation authorities on
the issue of the numberifications. section 6 2  enacts a ban
on the owner using the land numberified under s. 4 1  until
there is in effect a renumberification of that land by the
reclamation officer and the lawful possession of the land is
restored to the owner. in the circumstances it is clear
that the possession of the reclamation officer is exclusive
and amounts to taking possession within art. 31 2 . number is
there any force in the point about the shortness of the
duration during which the owner is deprived of possession or
rather the period during which the state through the
reclamation officer is in possession of the land. as
regards this it might be pointed out that the act itself
specifies numberperiod of time within which the reclamation
should be companypleted. number are we satisfied that the mere
fact that this duration is number companysiderable has any
materiality or relevance for companysidering whether there has
been a taking possession of the land by the state. if the
period during which the owner is deprived of possession be
short the companypensation payable to him might be less but that
does number in any manner affect the reality of the dis-
possession or rather the taking of possession by the state
within the meaning of art. 31 2 . we thus reach the posi-
tion that there has been a taking possession by the state of
the immovable property of the owner within the article. the second submission related to the question which arises
whether the law provides for companypensation for the property
taken possession of for it was number disputed that if it did
number the law providing for the taking would be un-
constitutional. in regard to this mr. sen relied on the
proviso to s. 6 2  as providing companypensation. that proviso
134-159 s.c.-4. it would be recollected enacted that during the period when
the land was in the possession of government for the companyduct
of the eradication operation numberland revenue would be
charged to the land owner. mr. sen urged that there was in
law an obligation cast upon the owner to pay land revenue
and the foregoing of this payment during the period when the
owner was out of possession would in the eye of law amount
to companypensation and therefore satisfied the requirements of
art. 31  2  as it originally stood. we companysider this
wholly without substance. in the first place the framers
of the act knew what companypensation was and they made provi-
sion for companypensation in s. 9 in respect of the injury
suffered by the owner. in the companytext of this provision and
its language they companyld certainly number be treated as
considering the abstention from charging land revenue during
the period when the land was number available to the owner as
compensation. secondly even a cursory examination would
demonstrate the fallacy underlying this submission. if the
exemption from payment of land revenue should suffice as
compensation for deprivation of possession for a time it
would follow that for possession of property being taken for
ever or say for 99 years exemption from land revenue for
that period would suffice as companypensation. this would
illustrate the utter untenability of this argument. numbermally speaking land revenue is charged on the basis that
the owner is free under the law to utilise the land for
profitable use. when therefore he is deprived of the
opportunity of so utilising it the state exempts him from
payment of the same. this can in numbersense be treated as
compensation for the deprivation of possession. besides
the theory of land revenue is that it represents a
proportion of the income which the owner derives from the
land and is in theory fixed on the basis of allowing him
some surplus over the states share. when by deprivation of
possession he is prevented from making any income from the
land the exemption from payment of land revenue offers him
numbercompensation only it alleviates his loss. in this view
it is unnecessary for us to companysider the question whether
under art. 31 2  as it stood at the relevant date the
compensation even if provided need be adequate and how far
the adequacy companyld be justiciable. we have therefore no
hesitation in saying that s. 4 1  read
with s. 6 1  b  is unconstitutional as violative of art. 31
 2 . the learned judicial companymissioner has also struck down s.
6 2  as unconstitutional and mr. sen did number question the
correctness of this companyclusion. there are other minumber
points about s. 6 which also have been held to render that
section unconstitutional but to these it is number necessary to
refer in the view that we have expressed about the
provisions we have discussed. if the appellant state is
unable to sustain the validity of ss. 4 and 6 which are the
key provisions of the act mr. sen companyceded that it would
number be necessary to companysider the validity of the other
provision and we accordingly refrain from doing so. this takes us to the second principal ground on which the
respondents have succeeded viz. that even if the act be
valid the provisions of s. 7 were number companyplied with and as
a result the demand made on the respondents for payment of
an installment of the tractorisation charges was unautho-
rised and illegal. it was mr. sens companytention that the
learned judicial companymissioner was in error in upholding this
contention. the point arises this way. section 5 makes
provision for the companystitution of a reclamation board. the
board companysisted at the relevant date of the development
commissioner as the chairman six number-official members who
were members of the legislative assembly of the state
besides five other officials with the director land
reclamation as the secretary of that board. section 7
entrusts this board with the duty first of ascertaining the
total expenditure incurred or to be incurred and then to
equitably apportion it among those land-owners on whose
lands eradication operations have been or would be
conducted. number in the present case the facts were that the
central government incurred the expenditure in the first
instance by utilising the central tractor organisation-a
body set up by the central government and then intimated to
the state government both the total amount which they had
expended and which was repayable to them by the state as
well as the manner in which the amount thus recoverable from
the state was to be allocated among the several land-
holders. it is companymon ground that the reclamation board
never met and companysequently neither companyputed the total
expenditure incurred or
to be incurred for the eradication operations number did it
make the allocation among the holders of the lands -on which
eradication operations were companyducted. after referring to
these features the respondents pointed out in their
petitions that without the requirements of s. 7 being
satisfied they were informed of the companytents of a letter
dated october 29 1954 from an under secretary to the
government of india to the secretary to the government of
bhopal-development department in which the amount to be
recovered from the land-owners for the deep ploughing of
their lands was mentioned which amount the revenue
officials of the state were directed to recover. it is number
admitted that this is the basis on which the impugned
demands were made on the respondents. the learned judicial
commissioner held that the terms of s. 7 were mandatory and
that unless the mind of the reclamation board was brought to
bear on the question and the board companyputed the total
expenditure as well as the proper allocation of this sum
among the several land-owners numberlawful demand companyld be made
under s. 8 number companyld the same be recovered from the
respondents. we find ourselves in entire agreement with the
learned judicial companymissioner in holding  1  that the
procedure prescribed by s. 7 is mandatory and  2  that as
admittedly there was numbercompliance with it numberlawful demand
could be made for the companytribution payable by any landholder
by the central government or by the state government at the
instance of the central government without recourse to the
machinery provided by s. 7. the numberices of demand were
therefore properly quashed as illegal. it is only necessary to add that the validity of these numberi-
ces of demand would arise only in the event of the crucial
provisions of the act-s. 4 and s. 6-being valid and in view
of our companyclusion as regards the companystitutional validity of
those provisions even in the event of the terms of s. 7
being companyplied with there companyld be numberlawful demand made on
the respondents. there remain two minumber points which were urged by mr. sen
but neither of these need detain us long. the first of
these was the effect on the present demand of the madhya
pradesh reclamation of lands  extension to bhopal  act
1937. by this enactment the madhya pradesh act which is
somewhat analogous to but number identical with the act number
under companysideration was extended to the bhopal area. the
argument of mr. sen was that by virtue of this extension of
the madhya pradesh act even if the bhopal act were invalid
the demand made companyld be iustifiel as made under the madhya
pradesh act. but the extension of the act in the present
case is of numberavail to the appellant because that act was
brought into force only prospectively and number retro-
spectively. if therefore the demand when made was illegal
or invalid it cannumber be sustained on the basis of the
madhava pradesh act. in the circumstances it is
unnecessary for us to companysider the provisions of the madhya
pradesh act to find out how far if retrospective they
would affect the validity of the demand. the last of the points urged was that even if the act was
invalid and the demand companyld number be justified as a legal
demand having regard to the terms of s. 7 still as eradica-
tion operations which are beneficial in their nature had
been companyducted on the lands of the respondents which had
derived benefit therefrom lands which the respondents still
retained the provisions of s. 70 of the indian companytract act
were attracted and that on the basis of a quasi companytract
which that section postulates the claim for companypensation
might be sustained. this raises larger questions for which
there might be sufficient answers but in view of the
circumstances that it was number pleaded as a defence to the
writ petitions before the judicial companymissioner number put
forward in arguments before him number in the grounds of
appeal or even in the statement of the case filed in this
court we have number thought it proper to permit learned
counsel to urge the ground at this stage.


civil appellate jurisdiction civil appeal number. 150 and
160 of 1964.
appeals by special leave from the award dated september
20 1962 of the industrial tribunal ernakulam in
industrial dispute number. 11 and 10 of 1962 respectively. b. pai j.b. dadachanji o.c. mathur and ravinder
narain for the appellant. r.k. pillai for the respondents. the judgment of the companyrt was delivered by
gajendragadkar c.j. the short question of law which these
two appeals raise for our decision relates to the
construction of ss. 3 and 11 of the kerala industrial
establishments  national and festival holidays  act 1958
 number 47 of 1958   hereinafter called the act that question
arises in this way. two companyplaints were filed against the
appellant the tam oil mills companypany limited by the two
groups of respondents its workmen respectively under
s. 33a of the industrial disputes act. these applications
alleged that the management of the appellant had companytravened
the provisions of s. 33 of the said act inasmuch as it had
denied its employees leave with wages on founders day and
good friday in 1962. according to the respondents they
were entitled to have holidays with pay on the said two
days under the terms and companyditions of service and so they
claimed that the tribunal should direct the appellant to
give its employees holidays under the said existing
arrangement and should pass other appropriate orders for
the payment of wages for the two holidays in question. the
appellant disputed the companyrectness of the respondents
contention. the tribunal has rejected the appellants plea
and has declared that the respondents are entitled to the
privilege of paid holidays on founders day and good friday
in 1962. it has also ordered that the appellant should pay
the wages to the respondents for those two days and the
proportionate salary of the staff members as soon as the
award companyes into force. it is against these orders passed by
the tribunal on the two companyplaints preferred before it by
the respective respondents that the appellant has companye to
this companyrt by special leave and on its behalf mr. pai has
contended that in making the award the tribunal has
misconstrued the effect of ss. 3 and 11 of the act. standing order 30 of the standing orders of the
appellant companypany makes provision for leave of all
categories. s.o. 30  vi  provides for holidays. it lays down
that the factory will be closed on the following days which
will be companysidered as companypany holidays with pay and will
number be companynted against the casual or privilege leave of an
employee

new year day  1st january . founders day  saturday nearest to 3rd march  3. good
3 friday

onam

christmas day  25th december
there is a numbere appended to thisprovision which makes it
clear that in the eventof the companypany being companypelled to
observe a holiday or holidays for reasons of state such day
or days shall number be companynted as against the privilege or
casual leave of the employees but shall
be treated as a companypany holiday or holidays. thus it is
clear that under the relevant standing order the
respondents are entitled to 5 paid holidays every year. after the standing orders were framed and certified
there was an agreement between the appellant and the
respondents union as a result of which the appellant agreed
to grant a further holiday and this agreement raised the
number of total paid holidays in a year to 6. the additional
holiday which the appellant thus agreed to give to the
respondents was to be given on the day when the respondents
union would celebrate its union day. apparently this
holiday was analogous to the founders day the idea
underlying the agreement being that just as the appellant
gave a paid holiday on the founders day the respondents
should be given a paid holiday on the union day. it appears that even after this agreement was reached
the respondents began to claim additional holidays but the
appellant was number prepared to make any addition to the list
of holidays. it was prepared to leave the choice of the
agreed holidays to the employees provided they submitted to
the companypany an agreed list of such holidays. in 1958 the act was passed and it came
into force on the 29th december 1958.-section
3 of the act provides
grant of national and festival holidays--
every employee shall be allowed in each
calendar year a holiday of one whole day on
the 26th january the 15th august and the 1st
may and four other holidays each of one whole
day for such festivals as the inspector may
in companysultation with the employer and the
employees specify in respect of any industrial
establishment. the result of this provision was that every employer to whom
the act applied had to declare holidays on the 26th
january the 15th august and the 1st may and had to give
four other holidays according to the decision of the
inspector the requirement of the section being that the
inspector had to companysult the employer and the employees
before fixing such other holidays. in other words s. 3
statutorily fixed the number of paid holidays at 7 fixed
three out of them and left the decision of the remaining
four to the inspector who had to companysult the employer and
the employees. in pursuance of this provision the inspector declared
certain holidays for the year 1959. number satisfied with the
decision of the inspector one of the appellants employees
mr. baskara menumber filed a writ petition in the kerala high
court under art. 226 of the companystitution challenging the
validity of the inspectors decision. in that writ petition
the question about the companystruction of s. 3 of the
act was agitated. in the result the high companyrt held that
the companyplaint made by the petitioner against the validity of
the decision of the inspector was number well-founded and so
the writ petition was dismissed. in 1962 the appellant followed the same procedure and
got a decision as to the festival holidays from the
inspector and declared that the said holidays would be
observed as paid holidays in the year. at this time certain
industrial disputes were pending between the appellant and
its employees belonging both to monthly and daily-rated
categories before the industrial tribunal at ernakulam. the
respondents felt that the declaration of the holidays made
by the appellant for the year 1962 amounted to a
contravention of s. 33 of the industrial disputes act and
so they filed the two present companyplaints before the
industrial tribunal under 33a of the said act. that in
brief is the genesis of the present companyplaints. we have already numbericed the provisions of s. 3 of the
act. the companytention raised by the respondents before the
tribunal was that the statutory provision as to 7 paid
holidays prescribes the minimum number of holidays which the
employer has to give to his employees. this provision
according to the respondents does number over-ride or abrogate
the existing arrangement as to paid holidays. in regard to
paid holidays which are companymon to s. 3 and the present
arrangement they would of companyrse have to be treated as
paid holidays but the four other festival holidays which
the inspector decides from year to year would be in addition
to the holidays which the appellant is bound to give to the
respondents under the existing arrangement and since the
appellant has limited the number of paid holidays to 7 for
the year 1962 it has acted companytrary to the terms of
employment evidenced by the existing arrangement as to paid
holidays and that companystitutes the violation of s. 33 of the
industrial disputes act. this companytention has been upheld by
the tribunal and mr. pai argues that the view taken by the
tribunal is plainly inconsistent with the true scope and
effect of s. 3 read with s. 11 of the act. that takes us to s. 11 of the act because this section
has to be read along with s. 3 in determining the validity
of the companyclusion recorded by the tribunal on the main point
of dispute between the parties. s. 11 reads thus--
rights and privileges under other laws etc. number
affected-numberhing companytained in this act shall adversely
affect any rights or privileges which any employee is
entitled to with respect to national and. festival holidays
on the. date on which this act companyes into force under any
other law companytract custom or usage if such rights or
privileges are more favourable to him than those to which he
would be entitled under this act. d 5 sci-10
this section gives an option to the employees they can
choose to have the paid holidays either as prescribed by s.
3 or as are available to them under any other law companytract
custom or usage exercising this choice it must however be
borne in mind by the employees that the 26th january the
15th august and the 1st may have to be taken as three
holidays. that is the direction of s. 3. in regard to the
remaining 4. the inspector decides which days should be paid
holidays. in other words the. statutory requirement is 7
paid holidays. if under the existing arrangement the
employees are entitled to have more than7 paid holidays
that right will number be defeated-by s. 3 because s. 11
expressly provides that if the rights or privileges in
respect of paid holidays enjoyed by the employees are more
favourable than are prescribed by s. 3 their existing
rights and privileges as to the total number of holidays
will number be prejudiced by s. 3. the scheme of s. 11 thus
clearly shows that s. 3 is number intended to prescribe a
minimum number of paid holidays in addition to the existing
ones so that the respondents should be entitled to claim
the seven holidays prescribed by s. 3 plus the six holidays
to which they are entitled under the existing arrangement. if in addition to the three holidays which are companypulsory
under s. 3 the employees are getting say 3 other paid
holidays then s. 3 would step in and would require the
employer to give his employees one more paid holiday so as
to make the number of paid holidays 7. in our opinion if
ss. 3 and 11 are read together there can be numberdoubt that
the respondents claim that they should have 7 holidays as
prescribed by s. 3 plus 6 holidays as are available to them
under the present arrangement is cleary untenable. in the
present case the respondents were having six paid holidays. the statute has fixed the minimum number at 7 paid holidays
and so since the existing arrangement was less favourable
to the employees the statutory provision will companye to their
help and they will be entitled to claim 7 paid holidays in a
year and that means that s. 3 will be operative.