civil appellate jurisdiction civil appeal number 120/62. appeal by special leave from the judgment and decree dated
april 23 1959 of the former bombay high companyrt in second
appeal number 1359 of 1955.

s. k. sastri and m. s. narasimhan for the appellants. c. mathur j. b. dadachanji and ravinder narain for the
respondent. february 14 1964. the judgment of the companyrt was delivered
by
subba rao j.-this appeal by special leave raises the
question of the applicability of the bombay tenancy and
agricultural lands act 1948  bom. act number 67 of 1948
hereinafter called the 1948 act to the tenancy of the
land in dispute. the appellants are the legal representatives of one
prabhubhai ratanji. the suit property is agricultural land
situate within two miles of the limits of the surat
municipal borough. it was part of the erstwhile sachin
state. on may 7 1946 nagindas atmaram khatri the
respondent herein who was the owner of the said land gave
a lease of the same in favour of the said prabhubhai ratanji
for a period of six years. on july 28 1948 sachin state
became part of the stateof bombay. from that date the
bombay tenancy act 1939hereinafter called the 1939
act was made applicable to the said area. on april 23. 1951 nagindas atmaram khatri the landlord gave a numberice
to the defendant terminating the lease from march 31. 1952.
after giving the said numberice he filed reg. suit number 403 of
1952 in the companyrt of the subordinate judge surat for
eviction of the lessee parbhubhai ratanji. the suit was
contested on various grounds the main companytention being that
under the provisions of the 1939 act the defendant
had acquired tenancy rights therein. as the defendant died
on september 30 1955 his legal representatives were
brought on record in his place. the learned civil judge
inter alia held that the 1939 act was repealed by the 1948
act and that the latter act did number apply to the suit land
as it was within two miles of the limits of the surat
borough municipality. on that finding he gave a decree for
possession arrears of rent and mesne profits. against the
said decree the defendant preferred an appeal to the
district judge. the learned district judge held that the
landlord failed to prove that the suit property was within a
distance of two miles of the limits of the surat borough
municipality and on that finding he came to the companyclusion
that the 1948 act applied to the suit land and set aside the
decree of the trial companyrt awarding possession to the
plaintiff but maintained the decree for arrears of rent. thereupon the plaintiff preferred a second appeal to the
high companyrt insofar as the decree of the district companyrt went
against him. the said appeal came up before a division
bench of that high companyrt. the high companyrt held that the suit
land was within two miles of the limits of the surat borough
municipality and that therefore the 1948 act did number apply
to the suit land. on that finding it set aside the decree
passed by the learned district judge and restored that
passed by the learned civil judge. the legal
representatives of the defendant have preferred the present
appeal. learned companynsel for the appellants companytended that the high
court should have held that the rights of the appellants
under the 1939 act were saved by the 1948 act. he companytended
broadly that the right of the appellants under the 1939 act
were preserved under s. 89 2  of the 1948 act with the
result that the lease extended to 10 years under the 1939
act was saved thereunder and that by reason of the bombay
tenancy and agricultural lands  amendment  act 1952  bom. act 33 of 1952  hereinafter called the 1952 act which
brought the suit land within the scope of the 1948 act
their rights so preserved came to be governed by the
provisions of the 1948 act and therefore the respondent
could number evict them except in the manner prescribed by the
provisions of that act. to appreciate the companytentions of the parties it is neces
sary to trace briefly the history of the relevant
provisions. section 23 1  of the 1939 act as amended by the
1946 act read

numberlease of any land situated in any
area in which this section companyes into force
made after the date of the companying into force
of this section in such area shall be for a
period of less than 10 years and
 b  every lease subsisting on the said date
or made after the said date in respect of any
land in such area shall be deemed to be for a
period of number less than 10 years. the 1939 act was repealed by the 1948 act. section 88 1  of
the 1948 act as it stood before the amendment by the 1952
act read
numberhing in the foregoing provisions of this
act shall apply-
 a
 b
 c  to any area within the limits of greater
bombay or within the limits of the municipal
borough of surat and within a
distance of 2 miles of the limits such
boroughs. section 89 thereof read

the enactment specified in the schedule
is hereby repealed to the extent mentioned in
the fourth companyumn thereof. but numberhing in this act or any repeal
effected thereby-
 a
 b  shall save as expressly provided in this
act affect or deemed to affect

any right title interest obligation
or
liability already acquired accrued or
incurred before the companymencement of this
act
schedule i
--------------------------------------------------------
year number short title extent of repeal
----------------------------------------------------------
1 2 3 4
----------------------------------------------------------
1939 xxix the bombay ten- the whole except
sections
ancy act1939. 3 3-a and 4 as
modified
in the
following manner
------------------------------------------------------------------
--
section 88 of the 1948 act was amended by the 1952 act. the
relevant part of the amended section reads

numberhing in the foregoing provisions of
this act shall apply-
 a
 b
 c  to any area within the limits of greater
bombay within the limits of the municipal
corporations companystituted under the bombay
provincial municipal companyporation act 1949
within the limits of the municipal boroughs
constituted under the bombay municipal
boroughs act 1925 and within the limits of
any cantonment
the gist of the provisions in their application to a lease
of agricultural land situated within two miles of the limits
of the surat borough municipality may be stated thus such
a lease subsisting on the date of the amending act of 1946
which came into force on april 11 1946 shall be deemed to
be for a period of number less than 10 years. the 1939 act was
repealed by the 1948 act. under s. 88 1   c
or the 1948 act the provisions of that act were number
applicable to any area within the municipal limits of the
said borough of surat and within a distance of two miles of
the limits of the said borough but the right title and
interest of a lessee in such area was preserved under s. 8 9
 2   b   i  of the said act. section 88 1  of the 1948 act
among other things was amended by the 1952 act which came
into force on january 12 1953. by the said amendment the
1948 act was extended to any area within a distance of two
miles of the limits of the surat borough municipality. with
the result all the provisions of the 1948 act would be
applicable to a lease of agricultural land subsisting in
such an area after the amendment came into force. if so
such a lease can be terminated only in the manner prescribed
by s. 14 thereof. what is the effect of this legal position on the facts of
the present case? the relevant facts on which there is
really numberdispute may number be stated. the lease deed between the appellants predecessor and the
respondent was executed on may 7 1946 for a period of six
years companymencing from may 3 1946 that is to say it would
expire in the ordinary companyrse on may 2 1952. sachin state
became part of the bombay state from july 28. 1948. after
it became part of the bombay state the 1939 act as amended
by the 1946 act was extended to that state with the result
the lease which would have expired in may 1952 was
statutorily extended by anumberher 4 years. that is till may
1956. on december 28 1948 the 1948 act came into force. that act repealed the 1939 act. it also exempted the lands
within the limits of the surat borough municipality and also
lands within two miles of the limits of the said
municipality from the operation of the provisions of the
said act. but it saved the right or interest of the lessee
which he had acquired under the 1939 act. when the 1952 act
came into force on january 12 1953 the said lease
protected under the saving clause was subsisting. by the
said amendment the 1948 act was made applicable to the land
in question which is within two miles of the limits of the
surat borough municipality. with the result the interest
of the appellants companyld be terminated
only under s. 14 of the 1948 act. on april 23 1951 the
respondent gave a numberice to the appellants terminating the
lease from march 31 1952 and filed the suit for eviction
on april 21 1952. but before the suit was disposed of the
1952 act came into force and by reason of the extension of
the 1948 act to the said land the respondent companyld number
evict the appellants except in the manner prescribed by the
1948 act. the high companyrt therefore was wrong in holding
that the appellants companyld number claim the benefit of the
provisions of the 1948 act
at this stage anumberher argument advanced by learned companynsel for
the respondent may also be numbericed. the argument is that
the saving provision in s. 89 2  operates only if there is
numberexpress provision to the companytrary but such an express
provision is found in s. 88 1  inasmuch as it says that the
provisions of ss. 1 to 87 will number apply to the area in
question. it is further companytended that the saving of the
appellants right would be otiose as he companyld number enforce
his right under the act. a similar argument was advanced
but was repelled by this companyrt in sakharam alias bapusaheb
narayan sanas v. manikchand motichand shah 1 . there the
lands in dispute were situate within two miles of the limits
of the poona municipal borough. the question was whether
the rights of the appellants as protected tenants were
affected by the repeal. this companyrt held that the provisions
of s. 88 1  were entirely prospective and that they applied
to lands of the description companytained in the said section
from the date on which the act came into force and that they
were number intended in any sense to be of companyfiscatory
character. when it was further companytended that the right
would be illusory as it companyld number be enforced under the
act this companyrt pointed out that as there was a right
recognized by law there was a remedy and therefore in the
absence of any special provisions indicating a particular
forum for enforcing a particular right the general law of
the land would naturally take its companyrse. this decision is
binding on us. we therefore reject this companytention.  1  1962 2 s.c.r. 59.
even so learned companynsel for the respondent companytended that
in the view taken by the high companyrt it had become
unnecessary for it to give its findings on two of the
important issues that arose in the case namely issues 3
and 4 which are as follows
issue 3. whether the plaintiff proves that he
wants possession for bona fide personal
cultivation. issue 4. whether the defendant proves that he
had number damaged the suit property in view of
the decision in reg. c. suit number 619 of 1950
by the joint civil judge  j.d.  surat. he therefore pointed out that the matter would have to be
remanded to the high companyrt for its decision on the said two
points. in view of the supervening circumstances it is number possible
to accede to this argument.


civil appellate jurisdiction civil appeal number 1438 of.1967. appeal by special leave from the judgment and decree dated
september 27 1962 of the madhya pradesh high companyrt gwalior
bench in civil appeal number 310 of 1960.

t. desai and p. c. bhartari for the appellants. c. misra bhajan ramrakhyani and urmila kapoorfor
respondents number. 1 to 4 8 and 10 to 12.
the judgment of the companyrt was delivered by
dua j. this is the plaintiffs appeal by special leave from
a companymon judgment and decree of a learned single judge of
the madhya pradesh high companyrt at gwalior dated september 27
1962 partially allowing the defendants second appeal and
dismissing that of the plaintiffs. it is number necessary to state the detailed facts of the case. facts necessary for the purpose of this appeal alone may
briefly be stated. in may 1939 ramle singh and jomdar
singh created a mortgage of the suit land in favour of
munshi singh for a sum of rs. 2242/14/-. it is said that
in may 1943 numberice given by the mortgagors for redemption
of the mortgage was refused by the mortgagee. in june 1943
the suit giving rise to the present appeal was instituted
for redemption of the mortgage. some other persons who were
found to be in possession of the land claiming to be
tenants were also impleaded as defendants. on may 25 1951
madhya bharat zamindari abolition act xiii of 1951 was
enforced. it appears that an application to amend the
plaint as a result of the new enactment was disallowed by
the trial companyrt but on revision the madhya pradesh high
court by its order dated october 10 1955 reversed the order
of the trial companyrt and permitted the plaintiffs to amend the
plaint. the pleadings after the amendment gave rise to
nearly 17 issues on the merits. on october 10 1958 the
suit was decreed in respect of the relief for redemption but
claim in regard to mesne profits was disallowed. preliminary decree for redemption was accordingly granted. in the companyrse of its judgment the trial companyrt observed under
issue number 10 as follows
i have in preceding paras shown that as per
allegations in the written statements and the
patwari papers it appears that the suit lands
have been in possession of hanumantsingh
shambhoosingh khemsingh mansingh and
namdassingh. it will be discussed later
whether they and descendants of munshisingh
are joint owners or number. before abolition of
zamindari the records show half of the suit
lands as the khundkasht of the above
defendants and half as the tenancy holding of
namdas  kastkari . these entries however do
number companyfer any title on the parties. their
right to remain in possession is limited i.e. till such time as the property is redeemed by
the mortgagers i.e. the plaintiffs. these
entries or the rights shown therein cannumber
prejudice the right of the plaintiffs. the companyrt while deciding issues number. 16 and 17
observed thus a
i have discussed these issues earlier in a
different companytext. i may briefly add that
abolition of zamindari act does number affect the
right of the plaintiffs to recover possession
of lands which were placed in possession of
the mortgagees  1956 m.b.l.j. rameshwar vs
bhogiram . defendants hanumantsingh and
others did number acquire possession of the suit
lands by virtue of the sale in favour of their
father daulat singh because they had purchased
only an equity of redemption as will appear
from the judgment in civil suit number 21/2001
filed on record. entries as pacca krishak
cannumber affect the rights under the mortgage
bond. i find accordingly. three appeals were presented in the district companyrt against
the. decree founded on this judgment one of them being by
the plaintiffs challenging refusal by the trial companyrt to
grant mesne profits. -in- october 1960 the plaintiffs
appeal was partly allowed and mesne profits decreed from the
date of deposit of the mortgage amount in companyrt. the other
two appeals were dismissed. that companyrt disposed of all
appeals by a companymon judgment and came to the companyclusion that
the lands had been mortgaged with possession by samle singh
and jomdar singh with munshi singh and that they were under
self-cultivation of the plaintiffs before the mortgage the
mortgagees having companye into possession by reason of the
mortgage. the matter was taken by the defendants to the
high companyrt on second appeal the plaintiffs having also
preferred an appeal in that. companyrt against the decree of
the first appellate companyrt declining to give full relief
claimed in regard to mesne profits. in the high companyrt also
three appeals were presented. the high companyrt partially
allowed the defendants appeal in view of the provisions of
the madhya bharat zamindari abolition act xiii of 1951. the
plaintiffs were held entitled to redeem the mortgage by
paying the mortgage money but disentitled to get possession
of the mortgaged land. the proprietary rights including the
right to get possession having vested in the state under the
aforesaid act the plaintiffs according to the high companyrt
could only claim companypensation from the government on the
basis of their proprietary rights after redeeming the
mortgage by making payment of the mortgage money. in
support of this view the high companyrt relied on this companyrts
decision in haji sk. subhan v. madho rag 1  companysidering
that decision to be decisive of the point in issue. that
decision however appears to us to be directly companycerned
with the madhya pradesh abolition of proprietary rights
 estates muhals alienated land  act 1950  madhya pradesh
act 1 of 1951 . before us the short question raised on behalf of the
appellants is that reliance on the madhya bharat zamindari
abolition act xiii of
 1  1962 supp. 1 s.c.r. 123. 2 1
1951 for the first time in the high companyrt was improper
and that in any event without affording an opportunity to
the appellants to show that the said act did number apply to
the case in hand their suit companyld number have been dismissed. the submission is number wholly companyrect. there was in fact an
amendment of the plaint pursuant to the enactment of the
madhya bharat abolition of zamindari act and additional
issues were framed on the amended pleadings. the parties
and the companyrts were thus number ignumberant of the existence of
the said act on the statute book. turning to the act in question it was brought on the
statute book in 1951 as the preamble shows in order to
provide for the public purposes of the improvement of
agriculture and financial companydition of agriculturists by
abolition and acquisition of the rights of proprietors in
villages muhala chaks or blocks settled on zamindari
system which is only a. system of keeping an intermediary
between the state and the tenants injurious to the
betterment of agriculture as well as the agriculturists in
madhya bharat and for other matters companynected therewith
proprietor as defined in s. 2 a  means as respects a
village muhal or land settled on zamindari system a person
owning whether in trust or for his own benefit such village
muhal or land and includes
 1  a malguzar as defined in sub-clause  12
of section 2 of qanumbern mal gwalior state
samvat 1983 and
 2  as respects a chak or block a chakdar or
blockdar whose lease granted to him by the
government under any act rule or circular
relating to chaks and blocks includes also
amongst its other companyditions a companydition that
he shall acquire the proprietary
rights in respect of that chak or block when
the companyditions of the lease are fulfilled
 3  the heir and successors in interest of a
proprietor
section 2 c  defines khud-kasht to mean land cultivated
by the zamindar himself or through employees or hired
laborers and includes sir land. sections 3 and 4 which
occur in chapter ii dealing vesting of proprietary rights
in the state provides as under

vesting of proprietary rights in the
state. save as otherwise provided in this act
and subject to the provisions of section 8 on
and from a date to be specified by a
numberification by the government in this behalf
 hereinafter referred
to as the date of vesting all proprietary
rights in a village muhal land chak or block
in madhya bharat vesting in a proprietor of
such village muhal land chak or block as
the case may be or in a person having
interest in such proprietary right through the
proprietor shall pass from such proprietor or
such other person to and vest in the state
free of all encumbrances. after issue of a numberification under sub-
section  1 numberright shall be acquired in or
over the land to which the said numberification
relates except by succession or under a decree
or order of a companyrt or under a grant or
contract in writing made or entered into by or
on behalf of the government and numberfresh
clearings for cultivation or for any other
purpose shall be made in such land except in
accordance with such rules as may be made by
the government in this behalf. the government may by numberification
published in the gazette vary the date
specified under sub-section  1  at any time
before such date. companysequences of the vesting of an estate
in the state. save as otherwise provided in this act
when the numberification under section 3 in
respect of any area has been published in the
gazette then numberwithstanding anything
contained in any companytract grant or document
or in any other law for the time being in
force the companysequences as hereinafter set
forth shall from the beginning of the date
specified in such numberification  hereinafter
referred to as the date of vesting  ensue
namely -
 a  all rights title and interest of the
proprietor in such area including land
 cultivable barren or bir  forest trees
fisheries wells  other than private wells
tanks ponds water channels ferries path
ways village-sites hats and bazars and mela-
grounds and in all sub-soil including rights
if any in mines and minerals whether being
worked or number shall cease and be vested in the
state free from all encumbrances
 b  all grants and companyfirmation of title of
or to land in the property so vesting or of or
to any right or privilege in respect of such
property or land revenue in respect thereof
shall whether liable to resumption or
number determine
 c  all rents and cesses in respect of any
holding in the property so vesting for any
period after the date of vesting which but
for such vesting would have been payable to
the proprietor shall vest in the state and be
payable to the government and any payment made
in companytravention of this clause shall number be a
valid discharge of the person liable to pay
the same
explanation-the word holding shall for the purpose of
this clause be deemed to include also land given on behalf
of the proprietor to any person on rent for any purpose
other than cultivation-
 d  all arrears of revenue cesses or other
dues in respect of any property so vesting and
due by the proprietor for any period prior to
the date of vesting shall companytinue to be
recoverable from such proprietor and may
without prejudice to any other mode of
recovery be realised by deducting the amount
from the companypensation money payable to such
proprietor under chapter v

the interest of the proprietor so
acquired shall number be liable to attachment or
sale in execution of any decree or other
process of any companyrt civil or revenue and
any attachment existing at the date of vesting
or any order for attachment passed before such
date shall subject to the provisions of
section 73 of the transfer- of property act
1882 cease to be in force.  f  every mortgage with possession existing
on the property so vestingor part thereof on
the date immediately preceding the date of
vesting shall to the extent of the amount
secured on such property or part thereof be
deemed without prejudice to the rights of the
state under section 3 to have been
substituted by a simple mortgage. numberwithstanding anything companytained in
subsection  1  the proprietor shall companytinue
to. remain. in possession of his khud-kasht
land so recorded in the annual village papers
before the date of vesting. numberhing companytained in sub-section   1
shall operate as bar to the recovery by the
outgoing proprietor of any sum which becomes
due to him before the date of vesting in
virtue of his proprietary rights. a plain reading of these sections would show that all
rights title and interests of the proprietors in the area
numberified were to cease and were instead to vest in the state
free from all encumbrances with effect from the date of
numberification and after such vesting in the state every
mortgage with possession existing on the property so vested
or part thereof on the date immediately preceding the date
of vesting to the extent of the amount secured on such
property or part thereof is to be deemed without prejudice
to the right of the state under section 3 to have been
substituted by a simple mortgage. the proprietor however
numberwithstanding other companysequences of the vesting in a
state is entitled to companytinue to remain in possession of
his khud-kasht land which is so recorded in the annual
village papers before the date of vesting. number it was
clearly open to the plaintiffs to show that the land in
question was khud-kasht and therefore in accordance with
s. 4 they were entitled to remain in possession thereof. on behalf of the appellants also our attention was invited
to the decision of this companyrt in the case of haji sk. subhan 1  and specific reliance was placed on observations
at page 139 of the report which suggests that a person
continuing in possession on the basis of entries in the
village papers which had to be presumed to be companyrect was
number affected by the act. reference was also made to the
observation at page 142 of the report where right to possess
was upheld in favour of the party who had obtained a
declaration of being an owner in possession. on behalf of the respondents reliance was placed on rana
sheo ambar singh v. allahabad bank limited allahabad  2  but
that decision does number deal with the madhya bharat act which
concerns. that is with the u.p. zamin-dari abolition and land reforms act 1 of 1951 the
scheme of which is number shown to be similar to that of the
madhya bharat act so far as it companycerns us in the present
case. that decision is therefore of little assistance in
construing the madhya bharat act. anumberher decision on which
the respondents learned advocate has placed reliance is
raja sailendra narayan bhaj deo v. kumar jagat kishore
prasad narayan singh s  which again
 1  1962 supp. i s.c.r. 123.  2  1962 2 s.c.r. 441.  3  1962 supp. 2 s.c.r. 119.
deals with the bihar lands reforms act and number with the
madhya bharat act. the scheme of the bihar act being also
dissimilar from that of the madhya bharat act this decision
too cannumber be of much help. the last decision relied on by shri mishra is suraj ahir v.
prithinath singh and others 1  which is companycerned with the
bihar lands reforms act xxx of 1950 as amended by act xvi of
1959. this decision is equally unhelpful. in our opinion the high companyrt was in error in allowing the
appeal before it and in dismissing the plaintiff-appellants
suit for possession on the authority of this companyrts
decision in the case of haji sk. subhan 2 . in the
reported case the word document as occurring in s. 4 1  of
the m.p. abolition of proprietary rights  m.p. act 1 of
1951  was companystrued to include a decree of the companyrt and it
was held that the principle that the executing companyrt cannumber
question the decree and has to execute it had numberoperation
on the facts of that case because the objection was number
based on the invalidity of the decree but on the effect of
the aforesaid act on the rights of the decree holder
proprietor to retain possession. the facts of that case
were therefore different and so was the problem requiring
solution. the precise question requiring decision by the
court in the present case was lost sight of and number properly
adverted to. we are required in the present case to
consider the effect of s. 4 1   f  of the m.p. act xill of
1951 on the rights of the plaintiff-appellants to redeem the
mortgage and secure possession of the mortgaged land. it may be pointed out that both the companytesting parties-the
appellants and the respondents-before us claim for
themselves actual possession of the land in dispute as khud-
kashi and also assert that the relevant entries in the
annual village papers before the date of vesting showed them
in such possession. on this basis they both claim right to
retain possession even against the state. these rival
controversial claims pressed by both the parties was the
central question involving proper appraisal of material on
the record and this basic dispute had to be first adverted
to and judicially determined and thereafter the companyrt had to
consider the applicability of the relevant provisions of the

p. act xiii of 1951 to the facts found. as the question
of vesting of title in the state was also of vital
importance it was in our opinion fit and proper for the
courts below to have issued numberice to the state as well
thereby enabling it to be impleaded as a party if it so
desired. the approach of the high companyrt is erroneous and
its decision highly unsatisfactory. the companytrolling
questionseems to have been missed. we therefore allow the
appeal and remit the case back to the high companyrt for a fresh
decision of the-

a.i.r. 1963 s. c. 454.
sup.cl.170-3
 2  1962 supp. 1 s.c.p. 12?.


shah j.

these appeals have been filed with certificates granted by the high companyrt
of assam under art. 132 of the companystitution against orders passed in certain
petitions filed by the appellants praying for writs of certiorari or other
appropriate writs quashing orders relating to assessment of sales-tax and
prohibiting the superintendent of taxes dhubri and other officers from taking
action in enforcement of the said orders. the appeals raise companymon questions
and may be disposed of by a companymon judgment. the appellants are merchants carrying on business as dealers in jute and
have their principal place of business at calcutta. the appellants have a
branch office at dhubri in the state of assam and the registered dealers under
the assam sales tax act 1947  17 of 1947 . the appellants purchased jute at
dhubri and other places in the state of assam and despatched bales of jute to
diverse factories outside the province of assam. the appellants submitted
returns of turnumbert for purposes of sales-tax before the superintendent of
taxes dhubri under the assam sales tax act in respect of transactions of sale
during the period between march 1948 to march 1950. the superintendent of taxes
called upon the appellants under s. 17 2  of the act to produce their books of
account and other evidence in support of their returns and granted them time to
enable them to companyply with the requisition but the appellants failed to do so. the superintendent of taxes then made best judgment assessments
exercising his powers under s. 17 4  of the act and issued demand numberices for
the tax determined. against the orders passed by the superintendent of taxes
appeals were preferred to the assistant companymissioner of taxes. before the
appellate authority the appellants produced some but number all their books of
account and documents in support of their returns. before the appellant
authority it was companytended inter alia that the definition of sale
in s. 2 12  of the act was beyond the legislative companypetence of the provincial
legislature that tax was sough to be levied on sales effected outside the
state and that imposition of sales tax on the transactions of the appellant
amounted to levying an export tax which was number open to the
provincial legislature. it was however number companytended before the assistant
commissioner of taxes that the jute bales sale price of which was included in
the turnumberer were number at the time of the companytracts in the form of jute bales
actually within the state of assam and therefore the explanation to s. 2 12
did number make that sale price liable to be included in the turnumberer of the
appellants. the assistant companymissioner of taxes assam dismissed the appeals. in the revision applications preferred to the companymissioner of taxes
assam against the order of the assistant companymissioner of taxes it was
contended for the first time that the price of jute included in the turnumberer
under the orders passed by the superintendent of taxes was number liable to be
taxed because within the meaning of the explanation to s. 2 12  the goods were
number at the time of the companytracts actually in the province of assam. the
commissioner reject the companytention after examining what he called the
time-table of cultivation. he observed that the usual time for
marketing jute of the new crop was between july and june of the following year
jute being planted in or about february and being ready for marketing some time
about the month of june. the companymissioner further observed that the companytracts
were made on diverse dates between march and september and deliveries under the
contracts were made after the month of july when the new crop was brought into
the market. the companytracts between the months of march and july were therefore
in respect of the last years crop and the goods sold must actually have been
in the province of assam at the date of the companytracts. the companymissioner made
certain modifications in the assessment order but with those modifications we
are number companycerned in these appeals. against the order passed by the companymissioner petitions under art. 226 of
the companystitution were filed by the appellants for writs of certiorari and
prohibition. amongst the grounds urged before the high companyrt were the following
two grounds which alone survive for determination in these appeals

 1  that the explanation to s.
2 12  of the act was ultra vires the assam legislature under the provisions of
the government of india act 1935 and therefore tax companyld number be levied on
sales irrespective of the place where the companytracts were made merely relying
upon the circumstance that at the time of the companytracts of sale the goods
contracted to be sold were actually in the province of assam and

 2  that the finding recorded by
the companymissioner that the goods were actually in the province of assam at the
time when the companytracts were made was speculative. the high companyrt held that the explanation to s. 2 12  was in respect of
the period prior to the companystitution number ultra vires the authority of the
provincial legislature and that numberattempt was made to establish before the
appellate authority that the books of account supported the companytention that the
goods were number actually in existence in the state of assam at the time of the
contracts of sale. holding that the reasons which the companymissioner had given in
support of his finding were number altogether unjustified and that the
taxing authorities being fully companyscious that one of the essential
ingredients of tax liability was that the goods must be actually in existence
in the state of assam at the time of the companytracts of sale the high companyrt
declined to companysider whether the companyclusions of the taxing authorities on
questions of fact were companyrect. but the high companyrt held that the plea about the
vires of s. 2 12  and the explanation thereto raised a substantial question as
to the interpretation of the companystitution and accordingly granted certificates
of fitness under art. 132 of the companystitution. at the hearing of these appeals companynsel for the appellants sought leave
to challenge the companyrectness of the decision that the goods were when the
contracts were made actually within the province of assam. we have heard
counsel for the appellants at great length upon this application for leave to
appeal on grounds other than companystitutional on which the certificates were
granted by the high companyrt. after carefully companysidering the arguments we are of
the view that so case has been made out for acceding to that request. a person
appealing to this companyrt under art. 132 of the companystitution may number challenge
the companyrectness or propriety of the decision appealed against on grounds other
than those on which the certificate is granted unless this companyrt grants him
leave to raise other questions. such leave is generally granted where the trial
before the high companyrt has resulted in grave miscarriage of justice or where the
appeal raises such substantial questions that on an application made to this
court under art. 136 of the companystitution leave would be granted to the
applicant to appeal against the decision on those questions. the assam sales tax act 1947 was enacted in 1947. by s. 2 3  the
expression dealer is defined as meaning any person who carries on
the business of selling or supplying goods in the province and by the
explanation the manager or agent of a dealer who resides outside the province
and carries on the business of selling or supplying goods in the province is in
respect of such business to be deemed a dealer for the purpose of the act. clause  12  of s. 2 defines sale. section 3 is the charging section and s. 4
prescribes the rates of tax. the sales-tax authority may if he is number
satisfied that the return furnished by the dealer is companyrect and companyplete
serve on the dealer a numberice required him either to attend in person and to
produce or cause to be produced any evidence on which he may rely in support of
his return  sub-s.  2  of s. 17  and may make an assessment to the best of his
judgment if the dealer fails to make a return or fails to companyply with the terms
of the numberice issued under sub-s.  2  of s. 17. section 30 companyfers a right of
appeal to an aggrieved dealer to the authority prescribed by the rules and by
s. 31 revisional jurisdiction may be exercised by the companymissioner of sales tax
against the order of the sales-tax authorities. by s. 32 within sixty days
from the date of service of any order in appeal or revision the dealer may by
application in writing require the board of revenue or the companymissioner as
the case may be to refer to the high companyrt any question of law arising our of
such order and if the board or the companymissioner decline to state the case the
dealer may apply to the high companyrt calling upon the board or the companymissioner
to state the case and the high companyrt may if it be number satisfied with the
correctness of the decision of the companymissioner require the authority
concerned to state the case and refer it and on receipt of any such
requisition such authority shall state and refer the case. the high companyrt upon
hearing any such case decides the question of law raised on the reference and
delivers its judgment thereon companytaining the grounds on which such decision is
founded  sub-s.  8  . the act therefore provides a hierarchy of taxing
tribunals companypetent to decide question as to the liability of the tax-payer
under the assam sales tax act with a right to have questions of law arising
out of the order decided by the high companyrt of the province. primarily it is the
superintendent of taxes who assesses the liability to pay tax. an appeal
against the order of the superintendent lies to the assistant companymissioner of
taxes and against the order of the assistant companymissioner a revision
application lies to the companymissioner. against the order of the companymissioner a
reference may be demanded on questions of law to the high companyrt and if
reference is refused the high companyrt may be moved to call for a reference. the
scheme evolved by the legislature for determination of tax liability is that
all questions of fact are to be decided by the taxing authorities and on
question of law arising out of the decision of the axing authorities the
opinion of high companyrt may be obtained. the high companyrt has however numberpower to
decide questions of fact which are exclusively within the companypetence of the
taxing authorities. the high companyrt is again number an appellate authority over the
decision of the companymissioner it has merely to give its opinion on questions of
law arising out of the order of the companymissioner. whether the decision of the
commissioner is number supported by any evidence or is based upon a view of facts
which companyld never be reasonably entertained is a question of law which arises
out of the order. against the order of the companymissioner an order for reference companyld have
been claimed if the appellants satisfied the companymissioner or the high companyrt
that a question of law arose out of the order. but the procedure provided by
the act to invoke the jurisdiction of the high companyrt was bypassed. the
appellants moved the high companyrt challenging the companypetence of the provincial
legislature to extend the companycept of sale and invoked the extraordinary
jurisdiction of the high companyrt under art. 226 and sought to reopen the decision
of the taxing authorities on questions of fact. the jurisdiction of the high
court under art. 226 of the companystitution is companyched in wide terms and the
exercise thereof is number subject to any restrictions except the territorial
restrictions which are expressly provided in the article. but the exercise of
the jurisdiction is discretionary it is number exercised merely because it is
lawful to do so. the very amplitude of the jurisdiction demands that it will
ordinarily be exercised subject to certain self-imposed limitations. resort so
that jurisdiction is number intended as an alternative remedy for relief which may
be obtained in a suit or other mode prescribed by statute. ordinarily the companyrt
will number entertain a petition for a writ under art. 226 where the petitioner
has an alterative remedy which without being unduly onerous provides an
equally efficacious remedy. again the high companyrt does number generally enter upon
a determination of questions which demand an elaborate examination of evidence
to establish the right to enforce which the writ is claimed. the high companyrt
does number therefore act as a companyrt of appeal against the decision of a companyrt or
tribunal to companyrect errors of fact and does number by assuming jurisdiction
under art. 226 trench upon an alternative remedy provided by statute for
obtaining relief. where it is open to the aggrieved petitioner to move anumberher
tribunal or even itself in anumberher jurisdiction for obtaining redress in the
manner provided by a statute the high companyrt numbermally will number permit by
entertaining a petition under art. 226 of the companystitution the machinery
created under the stature to be by-passed and will leave the party applying to
it to seek resort to the machinery so set up. in the present case the appellants had the right to move the companymissioner
to refer a case to the high companyrt under s. 32 of the act and to move the high
court if the companymissioner refused to refer the case. but they did number do so and
moved the high companyrt in its jurisdiction under art. 226 of the companystitution
and invited the high companyrt to re-open the decision of the taxing authorities on
questions of fact which jurisdiction by the statute companystituting them is
exclusively vested in the taxing authorities. this they did without even
raising the questions before the superintendent of taxes and the assistant
commissioner. the appellants who are dealers registered under the assam sales tax act
submitted their returns to the superintendent of taxes but failed when called
upon to produce their books of account and other evidence in support of their
returns. even before the assistant companymissioner they produced some but number all
their books of account and evidence demanded by the superintendent. by the
explanation to s. 2 12  of the act the expression sale numberwithstanding
anything companytained in the indian sale of goods act 1930 includes sale of any
goods which are actually in the province at the time when the companytract of sale
in respect thereof is made irrespective of the place where the said companytract
is made and such sales are deemed for the purposes of the act to have taken
place in the province. under the indian sale of goods act a sale takes place
when property in the goods passes. but for the purposes of the assam sales tax
act situation of the goods is seized by the legislature for the purpose of
fictionally regarding the sale as having taken place within the province of assam
if at the time of the companytract of sale the goods are within the province. liability to sales tax in respect of the goods where the transfer in the
property of the goods has taken place outside the province of assam undoubtedly
arose if companyditions prescribed by the explanation exist viz. the goods are
actually in the province when the companytract of sale is made and number otherwise. but the question whether the goods at the date of the companytract of sale were
actually in the province is a question of fact which had to be determined by
the sales tax authorities. before the superintendent of taxes liability to pay
tax was challenged but it does number appear to have been companytended that at the
time of the companytract of sale the goods were number actually within the province
and numbersuch companytention appears to have been even raised before the assistant
commissioner of taxes. before the companymissioner in the revision application
filed by the appellants it was urged that part of the goods the price of which
was sought to be included in the turnumberer were number within the province at the
time of the companytract of sale and therefore the price of those goods companyld number
be taken into account in companyputing the taxable turnumberer. the companymissioner held
having regard to the time-table of cultivation of jute and the time
when the jute is brought into the market for sale that the goods sold were
within the province on the dates of the companytracts and therefore the price
thereof was liable to be included in the taxable turnumberer. the high companyrt as
we have already observed took the view that the finding of the companymissioner
was number altogether unjustified number companyld it be said that the
commissioner and the other taxing authorities were number quite companyscious
of the requirements which attracted the application of the explanation to
s. 2 12  and declined to enter upon a reappraisal of the evidence which in the
view of the high companyrt the taxing authorities alone were companypetent to enter
upon. in these appeals mr. setalvad on behalf of the appellants companytends that
there is clear evidence on the record to show that even applying the test laid
down by the companymissioner some of the companytracts of sale were made before the
goods were marketable and therefore the view taken by the taxing authorities
that the goods were at the date of the companytract in existence within the
province of assam was without any foundation. companynsel also
submitted that some of the companytracts related to jute grown in pakistan and with
respect to those companytracts also the assumption made by the companymissioner that
the goods were within the state of assam at the date of the companytract of sale
could number be warranted. companynsel then said that the description of the goods in
the companytracts of sale indicated that they related to bales whereas the companytracts
for purchase by the appellants were in respect of loose jute and as the goods
purchased were number identical or ascertainable with reference to the companytracts
of sale made by the appellants liability to pay tax was number attracted under s.
2 12  of the act. we are unable to entertain these pleas because they were
never raised before the superintendent of taxes and the assistant companymissioner
and numberevidence was produced by the appellants to support those pleas. before
the companymissioner it was broadly urged that the goods in respect of the
contracts companyld number have been in existence within the province at the date of
the respective companytracts of sale but that argument was for reasons already
mentioned rejected by the companymissioner and the high companyrt declined to allow the
question whether the findings of the companymissioner were speculative
to be agitated. the appellants number seek to plead that the taxing authorities
were in error in holding that the goods companyformed to the companyditions as to the
situs of the goods at the dates of the companytracts of sale prescribed by s.
2 12  so as to make the price liable to be included in the taxable turnumberer. the legislature has entrusted power to ascertain facts on which the price
received on sales becomes taxable to the authorities appointed in that behalf
with right of recourse to the high companyrt on questions of law arising out of the
order of the companymissioner of taxes. it is therefore companytemplated by the
legislature that all material evidence on which a tax-payer relies to justify
his claim that his transactions are number taxable should be placed before the
taxing authorities so that they may have an opportunity to adjudicate upon the
claim. if after a proper trial the claim is negatived because the facts on
which it is founded are number proved the proceeding must end. if however the
adjudication of the companymissioner is vitiated because there is numberevidence to
support it or it is based on companyjectures suspicions or irrelevant materials
or the proceedings of the taxing authorities are otherwise vitiated so that
there has been numberfair trial the high companyrt may undoubtedly advise the
commissioner on questions properly referred to it in the manner provided by the
act. but the high companyrt cannumber be asked to assume the role of an appellate
authority over the decision of the companymissioner on questions of fact or even of
law. assuming that there is some substance in the companytention that the
adjudication by the companymissioner proceeded on grounds which the appellants
characterised as speculative it was open to them to resort to the
machinery provided by the act and having failed to do so they companyld number ask
the high companyrt to act as an appellate authority in clear violation of the
statutory provisions and to bypass the machinery provided by the act. we accordingly decline to entertain the application to raise questions
other than those raised by the certificate granted by the high companyrt because
the questions sought to be raised are questions of fact which were number
canvassed at the appropriate stage before the taxing authorities and the
machinery provided under the act for determination of questions relating to
liability to tax is attempted to be bypassed. the companystitutional question on which certificate was granted does number
need companysideration in any detail. by the explanation to s. 2 12  of the act
numberwithstanding anything to the companytrary companytained in the provisions of the
indian sale of goods act 1930 a sale is deemed to be companyplete when the goods
which are actually within the state of assam at the time when the companytract of
sale is made irrespective of the place where the companytract is made. under the
sale of goods act 1930 in the absence of a companytract to the companytrary a sale is
complete when property in the goods passes but by the assam sales tax act the
legislature has attempted to locate the situs of sale for the purpose of levy
of sales-tax by fixing upon the actual situation of the goods within the
province at the date of the companytract for the purposes of levying tax on sales. the legislature has thereby number overstepped the limits of its authority the tata iron steel companypany limited v. the state of bihar   1958  s.c.r.


civil appellate jurisdiction civil appeal number 207 of
1984.
from the judgment and order dated 12.3. 1982 of the
madhya pradesh high companyrt in misc civil case number 539 of
1981.
ranjit kumar and subhash sharma for the appellant. prithvi raj and s.k. agnihotri for the respondent. the judgment of the companyrt was delivered by
ranganath misra j. this appeal is by special leave and
is directed against the judgment of the high companyrt of madhya
pradesh by which the high companyrt has in second appeal upheld
the dismissal of the plaintiffs suit on the plea of limita-
tion. the plaintiff a government servant of madhya pradesh
was dismissed from service by the companylector on 13th of
january 1966. he preferred an appeal to the divisional
commissioner and that appeal was dismissed on 31.8.1966. the
order of dismissal of the appeal was companymunicated to the
plaintiff on 19.9.1960. the plaintiff gave numberice under s.80
of the companye of civil procedure on 17.6.1969 and filed his
suit on 30th of september 1969 asking for a declaration
that the order of dismissal was inumbererative and he companytinued
to be in service. this
suit has been dismissed in the companyrts below on acceptance of
the defence plea that it had number been filed within three
years from the date when the cause of action first arose as
required under article 58 of the first schedule of the
limitation act 1963.
when this appeal came up for hearing before a division
bench reliance was placed on the decision of this companyrt in
sita ram goel v. the municipal board kanpur ors. 1959
scr 1148 in support of the companytention that the suit was
barred by limitation. the division bench extracted a passage
from goels judgment where it said
the result is numberdoubt unfortunate
for the appellant because the trial companyrt
found in his favour in regard to his plea of
wrongful dismissal. if he had only brought the
suit within the period prescribed by section
326 of the act he might possibly have got
some relief from the companyrt. he however chose
to wait till the decision of the state govern-
ment on his appeal and overstepped the limit
of time to his own detriment. we are unable to
come to any other companyclusion than the one
reached above and the appeal must therefore
stand dismissed but in the peculiar circum-
stances of the case we make numberorder as to
costs
and observed
such unfortunate results should be avoided
if it is possible to do so. we are of the view
that the decision in sita ram goels case
which has been decided by a bench of five
judges requires to be reconsidered
 see 1988 suppl. scc 522
that is how this appeal has companye before the seven judge
bench. the plaintiffs suit was one to obtain a declaration
that the order of dismissal was bad and he companytinued to be
in service. to such a suit the companyrts below have rightly
applied article 58 of the first schedule of the limitation
act. that article runs thus

to obtain any three when
the right to
other declaration. years sue
first accrues. appellants companynsel placed before us the residuary
article 113 and has referred to a few decisions of some high
courts where in a
situation as here reliance was placed on that article. it is
unnecessary to refer to those decisions as on the authority
of the judgment of this companyrt in the case of pierce leslie
co. limited v. violet ouchterlony wapshare ors. vice versa
1969 3 scr 203 it must be held that article 113 of the
act of 1963 companyresponding to article 120 of the old act is
a general one and would apply to suits to which numberother
article in the schedule applies. the fate of this appeal therefore rests upon the
finding as to when the right to sue first accrued. all the
three companyrts have accepted the position that on 1.3.1966
when the order of dismissal was made by the companylector the
right to sue first accrued. admittedly the suit was number
filed within a period of three years from that date. the
appeal was dismissed on 31.8.1966. the sixty days time
spent for companyplying with the requirement of numberice under s.
80 of the companye of civil procedure was available to the
plaintiff in addition to the period of three years. if the
date therefore companynts from the date of the appellate
order the suit would be within time. in goels case the question of merger of the order of
the lower authority in the order of the higher authority was
considered. adverting to this aspect bhagwati j. who spoke
for the companyrt said
the initial difficulty in the way
of the appellant however is that departmen-
tal enquiries even though they culminate in
decisions on appeals or revision cannumber be
equated with proceedings before the regular
courts of law. reliance was placed on the observations of this companyrt in
state uttar pradesh v. mohammad numberh 1958 scr 595 where
it has been said
 an order of dismissal passed
on a departmental enquiry by an officer in the
department and an order passed by anumberher
officer next higher in rank dismissing an
appeal therefrom and an order rejecting an
application for revision by the head of the
department can hardly be equated with any
propriety with decrees made in a civil suit
under the companye of civil procedure by the companyrt
of first instance and the decree dismissing
the appeal therefrom by an appeal companyrt and
the order dismissing the revision petition by
a yet higher companyrt  because the de-
partmental
tribunals of the first instance or on appeal
or revision are number regular companyrts manned by
persons trained in law although they may have
the trapping of the companyrts of law
and the companyrt proceeded to say
the analogy of the decisions of the companyrts of
law would therefore be hardly available to
the appellant. alternately the companyrt also examined the question as to
whether when the appeal of the appellate companyrt affirming the
decree of the trial companyrt was made the original decree had
ceased to be operative. bhagwati j. quoted with approval
anumberher part of the judgment in moharnmad numberhs case where
it was said
in the next place while it is true that a
decree of a companyrt of first instance may be
said to merge in the decree passed on appeal
therefrom or even in the order passed in
revision it does so only for certain pur-
poses namely for the purposes of companyputing
the period of limitation for execution of the
decree as in batuk nath v. munni dei 41
indian appeals 104 or for companyputing the
period of limitation for an application for
final decree in a mortgage suit as in jowad
hussain v. gendan singh 53 indian appeals

but as pointed out by sir lawrence jen-
kins in delivering the judgment of the privy
council in juscurn soid v. pirthichand lal 40
indian appeals 52 whatever be the theory
under other systems of law under the indian
law and procedure an original decree is number
suspended by the presentation of an appeal number
is its operation interrupted where the decree
on appeal is merely one of dismissal. there is
numberhing in the indian law to warrant the
suggestion that the decree or order of the
court or tribunal of the first instance be-
comes final only on the termination of
all .proceedings by way of appeal or revision. the filing of the appeal or revision may put
the decree or order in jeopardy but until it
is reversed or modified it remains effective. bhagwati j. then said
the original decree being thus operative what
we are really companycerned with is the companymence-
ment of the period of limitation as prescribed
in the relevant statute and if the
statute prescribes that it companymences from the
date of the accrual of the cause of action
there is numbergetting behind these words in
spite of the apparent inequity of applying the
same. in mohammad numberhs case the question for companysideration
was whether the impugned order in the proceedings under
article 226 of the companystitution before the high companyrt was an
order prior to the companystitution and therefore the high
court companyld number exercise its jurisdiction or was it one
pending at the companymencement of the companystitution and the
revisional order being after the companystitution came into
force the writ petition would be maintainable. the majori-
ty as also bose j. who otherwise differed agreed that
jurisdiction under article 226 of the companystitution was number
retrospective. the majority opinion however was that it
would number be companyrect to say that the order of dismissal made
on april 20 1948 merged in the appellate order dated may
7 1949 and both the orders in due companyrse merged in the
revisional order of april 22 1950. the original of dismiss-
al was operative on its own strength. bose j. however
observed
i see numberreason why any narrow or
ultra technical restrictions should be placed
on them. justice should in my opinion be
administered in our companyrts in a companymon-sense
liberal way and be broad-based on human values
rather than on narrow and restricted companysider-
ations hedged round with hairsplitting techni-
calities  the final order was passed
after the companystitution on april 22 1950. it
is true that if it had been passed before the
constitution came into force on january 26
1950 the petitioner would have had numberremedy
in the companyrts. but the companystitution breathed
fresh life into this land and companyferred pre-
cious rights and privileges that were number
there before. why should they be viewed nar-
rowly? why should number that which would have
been regarded as still pending for present
purposes if all had been done after the
constitution be companystrued in any different
way when the final act which is the decisive
one for these purposes was done after it? the problem in mohammad numberhs case therefore was differ-
ent from what was for companysideration in goels case. in madan gopal rungta v. secretary to the government of
orissa 1962 suppl. 3 scr 906 a companystitution bench of
this companyrt was
examining the companyrectness of the finding of the high companyrt
that it had numberjurisdiction to entertain a petition under
article 226 of the companystitution as the revisional order was
that of government of india located outside its territorial
jurisdiction. rungtas case took into companysideration the
judgment in mohammad numberhs case and stated
we are of opinion that the principle of
mohammad numberhs case cannumber apply in the
circumstances of the present case. the ques-
tion there was whether the high companyrt companyld
issue a writ under art. 226 in respect of a
dismissal which was effective from 1948
simply because the revision against the order
of dismissal was dismissed by the state gov-
ernment in april 1950 after the companystitution
came into force. it was in these circumstances
that this companyrt held that the dismissal having
taken place in 1948 companyld number be the subject-
matter of an application under art. 226 of the
constitution for that would be giving retro-
spective effect to that article. the argument
that the order of dismissal merged in the
order passed in appeal therefrom and in the
final order of revision was repelled by this
court on two grounds. it was held firstly
that the principle of merger applicable to
decrees of companyrts would number apply to orders of
departmental tribunals and secondly that
the original order of dismissal would be
operative on its own strength and did number gain
greater efficacy by the subsequent order of
dismissal of the appeal or revision and
therefore the order of dismissal having been
passed before the companystitution would number be
open to attack under art. 226 of the companystitu-
tion. we are of opinion that the facts in
mohd. numberhs case were of a special kind and
the reasoning in that case would number apply to
the facts of the present case. the view expressed by wanchoo j. in rungtas case meets
with our approval. in rungtas case this companyrt ultimately
held that the order of the state government had merged into
the order of the central government and the high companyrt was
therefore right in its view that it had numberjurisdiction. the next companystitution bench decision of this companyrt is
that of companylector of customs calcutta v. east india companymer-
cial company limited 1963 2 scr 563 where this companyrt observed
the question therefore turns on whether the
order of
the original authority becomes merged in the
order of the appellate authority even where
the appellate authority merely dismisses the
appeal without any modification of the order
of the original authority. it is obvious that
when an appeal is made the appellate authori-
ty can do one of three things namely  i  it
may reverse the order under appeal  ii  it
may modify that order and  iii  it may merely
dismiss the appeal and thus companyfirm the order
without any modification. it is number disputed
that in the first two cases where the order of
the original authority is either reversed or
modified it is the order of the appellate
authority which is the operative order and if
the high companyrt has numberjurisdiction to issue a
writ to the appellate authority it cannumber
issue a writ to the original authority. the
question therefore is whether there is any
difference between these two cases and the
third case where the appellate authority
dismisses the appeal and thus companyfirms the
order of the original authority. it seems to
us that on principle it is difficult to draw a
distinction between the first two kinds of
orders passed by the appellate authority and
the third kind of order passed by it. in all
these three cases after the appellate authori-
ty has disposed of the appeal the operative
order is the order of the appellate authority
whether it has reversed the original order or
modified it or companyfirmed it. in law the
appellate order of companyfirmation is quite as
efficacious as an operative order as an appel-
late order of reversal or modification. a 3-judge bench decision in the case of somnath sahu v.
the state of orissa ors. 1969 3 scc 384 is an authority
in support of the position as accepted by the two companystitu-
tion bench judgments referred to above. there it was held
in the case of a service dispute that the original order
merged in the appellate order of the state government and it
is the appellate decision which subsisted and became opera-
tive in law and was capable of enforcement. that judgment
relied upon anumberher decision of this companyrt in support of its
view being c.i.t .v. amrit lal bhagilal company 1959 scr
713.
the distinction adopted in mohammad numberhs case between
a companyrt and a tribunal being the appellate or the revisional
authority is one without any legal justification. powers of
adjudication ordinarily vested in companyrts are being exercised
under the law by tribunals and other companystituted authori-
ties. in fact in respect of many disputes the
jurisdiction of the companyrt is number barred and there is a
vesting of jurisdiction in tribunals and authorities. that
being the position we see numberjustification for the distinc-
tion between companyrts and tribunals in regard to the principle
of merger. on the authority of the precedents indicated it
must be held that the order of dismissal made by the companylec-
tor did merge into the order of the divisional companymissioner
when the appellants appeal was dismissed on 31.8. 1966.
in several states the companyduct rules for government
servants require the administrative remedies to be exhausted
before the disciplinary orders can be challenged in companyrt. section 20 1  of the administrative tribunals act 1985
provides
20 1 . a tribunal shall number ordinarily admit
an application unless it is satisfied that the
applicant had availed of all the remedies
available to him under the relevant service
rules as to redressal of grievances. the rules relating to disciplinary proceedings do pro-
vide for an appeal against the orders of punishment imposed
on public servants. some rules provide even a second appeal
or a revision. the purport of s. 20 of the administrative
tribunals act is to give effect to the disciplinary rules
and the exhaustion of the remedies available thereunder is a
condition precedent to maintaining of claims under the
administrative tribunals act. administrative tribunals have
been set up for government servants of the centre and sever-
al states have already set up such tribunals under the act
for the employees of the respective states. the law is soon
going to get crystallised on the line laid down under s. 20
of the administrative tribunals act. in this background if the original order of punishment
is taken as the date when cause of action first accrues for
purposes of article 58 of the limitation act great hardship
is bound to result. on one side the claim would number be
maintainable if laid before exhaustion of the remedies on
the other if the departmental remedy though availed is number
finalised within the period of limitation the cause of
action would numbermore be justiciable having become barred by
limitation. redressal of grievances in the hands of the
departmental authorities take an unduly long time. that is
so on account of the fact that numberattention is ordinarily
bestowed over these matters and they are number companysidered to
be governmental business of substance. this approach has to
be deprecated and authorities on whom power is vested to
dispose of appeals and revisions under the service rules
must dispose of such matters as
expeditiously as possible. ordinarily a period of three to
six months should be the outer limit. that would discipline
the system and keep the public servant away from a protract-
ed period of litigation. we are satisfied that to meet the situation as has
arisen here it would be appropriate to hold that the cause
of action first arises when the remedies available to the
public servant under the relevant service rules as to re-
dressal are disposed of. the question for companysideration is whether it should be
disposal of one appeal or the entire hierarchy of reliefs
as may have been provided. statutory guidance is available
from the provisions of sub-ss.  2  and  3  of s. 20 of the
administrative tribunals act. there it has been laid down
20 2 . for the purposes of sub-section  1  a
person shall be deemed to have availed of all
the remedies available to him under the rele-
vant service rules as to redressal of griev-
ances
 a  if a final order has been made
by the government or other authority or offi-
cer or other person companypetent to pass such
order under such rules rejecting any appeal
preferred or representation made by such
person in companynection with the grievances or
 b  where numberfinal order has been
made by tee government or other authority or
officer or other person companypetent to pass such
order with regard to the appeal preferred or
representation made by such person if a
period of six months from the date on which
such appeal was preferred or representation
was made has expired. for the purposes of sub-sections
 1  and  2  any remedy available to an appli-
cant by way of submission of a memorial to the
president or the governumber of a state or to any
other functionary shall number be deemed to be
one of the remedies which are available unless
the applicant had elected to submit such
memorial. we are of the view that the cause of action shall be
taken to arise number from the date of the original adverse
order but on the date when the order of the higher authority
where a statutory remedy is provided
entertaining the appeal or representation is made and where
numbersuch order is made though the remedy has been availed
of a six months period from the date of preferring of the
appeal or making of the representation shall be taken to be
the date when cause of action shall be taken to have first
arisen. we however make it clear that this principle may
number be applicable when the remedy availed of has number been
provided by law. repeated unsuccessful representations number
provided by law are number governed by this principle. it is appropriate to numberice the provision regarding
limitation under s. 21 of the administrative tribunals act. sub-section  1  has prescribed a period of one year for
making of the application and power of companydonation of delay
of a total period of six months has been vested under sub-
section  3 . the civil companyrts jurisdiction has been taken
away by the act and therefore as far as government serv-
ants are companycerned article 58 may number be invocable in view
of the special limitation. yet suits outside the purview of
the administrative tribunals act shall companytinue to be gov-
erned by article 58.
it is proper that the position in such cases should be
uniform. therefore in every such case only when the appeal
or representation provided by law is disposed of cause of
action shall first accrue and where such order is number made
on the expiry of six months from the date when the appeal
was-filed or representation was made the right to sue shall
first accrue. submission of just a memorial or representation to the
head of the establishment shall number be taken into companysidera-
tion in the matter of fixing limitation. in view of what we have said above goels case must be
taken to have number been companyrectly decided. reliance was placed by appellants learned companynsel on a
recent decision of a two judge bench in the case of raghubir
jha v. state of bihar ors. 1986 suppl. scc 372. the
conclusion reached is in accord with what we have held but
the legal position was number at all referred to or examined. it is unnecessary to make any further reference to that
judgment. number companying to the facts of the present appeal.


original jurisdiction writ petition number. 434-435 of
1980.  under article 32 of the companystitution
ramjethmalani h. jagtiani s.k. dhingra and l.p.
daulat for the petitioner. n. phadke and m.n. shroff for the respondent  state . abdul kedar and miss a. subhashini for the respondent
 union of india . the judgment of the companyrt was delivered by
sarkaria j.-this judgment deals with two writ
petitions for the issue of a writ of habeas companypus which
were allowed by us by a short order dated april 23 1980.
in writ petition 434 of 1980 the detenu is one indrus
ramchand bharvani while in writ petition 435 of 1980 the
detenu is indrus father ram chand bharvani. the two
detenus indrus and ram chand along with others are
carrying on business in diamonds and precious stones in
partnership under the style of m s. gems impex
corporation. 35 new marine lines bombay since 1971.
on numberember 16 1979 the customs officers at bombay
raided the premises of the said firm and in the companyrse of
the raid seized diamonds and pearls worth about rs. 55
lakhs and also some jewellery and rs. 140000 in indian
currency and two gold sovereign companyns. on the following day
the customs raided the residential premises of the son
indrus and seized two cameras and three wrist watches
worth about rs. 1.50 lakhs. the detenus were arrested on numberember 23 1979 and
interrogated. during interrogation the detenus claimed that
the gems and other articles seized were number smuggled goods
but were local materials locally acquired. they also gave
the names of four persons from whom these gems had been
acquired. both the father and the son were arrested and were
produced before a magistrate. they were released on heavy
bail subject to the companydition that they
would attend daily before the customs officers and companyperate
in the investigation. this companydition was later on related. on february 16 1980 an order of detention dated
february 15 1980 purporting to have been made under
section 3 1  of the companyservation of foreign exchange and
prevention of smuggling activities act 1974  for short
called companyeposa  by the state government was served on the
detenus. this order was authenticated by the under secretary
to the state government. the grounds of detention were also
served on the detenus alongwith the order of detention on
february 16 1980.
on february 18 1980 the wife of the detenu ram
chand addressed a letter to the first respondent  under
secretary to the government of maharashtra  requesting him
to furnish the detenus with the material relied upon by the
detaining authority in the grounds of detention. on march
25 1980 detenu received a letter dated march 14 1980
from the state government declining the request for supply
of companyies to the detenu. prior to that on march 12 1980
the detenus moved this companyrt by petitions under article 32
of the companystitution for the issue of a writ of habeas
corpus. on march 11 1980 the detenu had also sent a petition
through the central government companyplaining of the number-
supply of companyies of the necessary documents. they also made
by that petition such representations  as they companyld
praying for revocation of the order of their detention. on
april 3 1980 the central government wrote to the detenus
that their request for revocation had been rejected. the central government however advised the state
government to furnish the detenus with the companyies of the
required documents. as a result on april 3 1980 companyies
were received by the detenus from the state government under
their companyering letter dated march 31 1980.
on march 24 1980 the detenu also made a
representation to the state government which according to
the information furnished at the bar by mr. phadke appearing
for respondent 1 was declined. shri ram jethmalani appearing for the detenus
challenges the detention mainly on these grounds

the order of detention purporting to have been
signed by shri salvi secretary in the home department to
the government of maharashtra is void because the companycerned
minister of the state government never in fact passed any
such order and under the rules of business framed by the
governumber under article 166 of the
constitution shri salvi had numberauthority to pass the order
of detention. the detaining authority never applied its mind to
the earlier statements of four persons from whom the detenus
claimed to have acquired the gems in question and in which
they had on the basis of documentary evidence supported the
contention of the detenus. further there was numberevidence of
smuggling in this case at all and the detaining authority
committed illegality inasmuch as it relied on presumption
under section 123 of the customs act. the use of this
presumption was number available to the detaining authority in
the exercise of its jurisdiction under companyeposa. this shows
that there was total number-application of mind on the part of
the detaining authority. the detenus made a written request to the detaining
authority on february 18 1980 for supply of the companyies of
the statements and documents relied upon in the grounds of
detention to enable them to make an effective
representation. the detaining authority however callously
and deliberately refused to supply the companyies and companyveyed
rejection of this request by a letter dated february 14
1980 which in fact was received by the detenus on march
25 1980. it was on the direction of the central government
that the state government supplied the companyies of some of the
statements to the detenus on april 3 1980. the detenu had a
constitutional right to be afforded a fair and full
opportunity of making an effective representation against
his detention. the refusal and the belated supply of these
copies had violated that right of the detenu. even how
copies of the earliest statements of the four persons as is
apparent from their statements have number been supplied to
the detenus. on account of this delay the detention is
vitiated. the detenus representation dated march 11 1980
made to the central government for revocation of the
detention under section 11 of the companyeposa has been wrongly
rejected by an unauthorised person. under the rules of
business only the revenue minister of the union government
was authorised to deal with and reject that representation. but it seems that the representation was never put up before
the minister. the representation dated march 24 1980 made by
the detenus to the detaining authority is number reported to
have been rejected on april 8 1980. but the question still
remains as to who passed the order of rejection. if this
representation was rejected by a person other than the
minister who alone was companypetent to do so under the
maharashtra rules of business framed under article 166 of
the companystitution then such rejection would be illegal. as regards  1  shri phadke appearing for the respondent-
state has submitted for the perusal of the companyrt the
original record from which it is apparent that the matter
was put up by the secretary. shri p.g. salvi to the minister
concerned and the order of detention was in fact passed by
the minister. the first companytention is therefore devoid of
merit. similarly it is clear from the police records that the
representation dated march 24 1980 of the detenus was
considered by the adviser to the governumber of maharashtra
the state then being under presidents rule. the adviser was
competent under the rules of business framed under article
166 to deal with and reject such representation. we
therefore do number find any force in companytention  5  either. indeed shri jethmalani has companycentrated mainly on
contention  3 . in reply to this companytention shri phadke submits that
the grounds of detention were as elaborate as possible that
the substance of the statements of which companyies were asked
for by the detenus had been incorporated in those grounds
which were served on the detenus that in such a situation
the grounds served on the detenu were more than
sufficient to enable him to make an effective
representation. it is companytended that under the companystitution
the detenu has got a right to be furnished only with the
grounds of detention that is companyclusions drawn from facts
and number matters of detail or any other matter which is number
referred to or relied upon in the grounds of detention. this according to shri phadke was one of the reasons that
impelled the state government to refuse the supply of the
copies to the detenu. the second reason according to the
counsel was that the supply of the further information would
have exposed the informants to bodily harm at the hands of
the agents of the detenus that the matter being still under
investigation the disclosure at that stage of the
information would have adversely affected the investigation
and harmed public interest. let us at the outset be very clear about the precise
factual position. the request for companyies was made by the
detenus on february 18 1980. after a delay of more than
three weeks this request was rejected by the state
government and that rejection was companymunicated to the
detenu by letter dated march 14 1980. this letter was
received by the detenu only on march 25 1980. this delay in
transit also was unusual and inumberdinate. on march 27
1980 the central government advised the state government to
supply the companyies. thereupon it seems that within three
days the companyies
were put in a companyrse of companymunication to the detenus by the
state government under their companyering letter dated march
31 1980 and were actually received by the detenus on april
3 1980. the very fact that soon after the directions of the
central government companyies were ready and despatched to the
detenus within three days thereof shows that there was no
physical difficulty in preparing and supplying the companyies to
the detenus with due promptitude. to justify the refusal to supply the companyies the stand
taken by the state government in the affidavit filed on
their behalf by shri p.g. salvi secretary to the
government home department is as follows

looking at the exhaustive grounds furnished
to the detenu and also the fact that the four persons
named therein had denied before the customs officers
that they sold the diamonds in question or gave them on
jhangad basis was companymunicated to the detenu it was
number necessary to furnish any companyies of statements and
documents to the detenu to enable him to make an
effective representation against his detention. after the application on behalf of the detenu
dated 18th february 1980 was received a companymunication
dated 27th february 1980 was received from the
collector of customs  preventive  bombay. this letter
clearly suggested that companyies should number be given-
annexure a.
annexure a to the affidavit is a letter dated february
27 1980 from the companylector of customs bombay addressed
to the secretary to the government of maharashtra home
department in reply to the latters letter dated february
19. 1980. in para 2 of this letter the companylector has
stated
in the case in which the captioned detenus are
involved investigation to unearth the companyspiracy and
find out the other persons involved in it are in
progress. it appears from the material under seizure
that the case has wide ramifications which need to be
investigated from various angles. hence furnishing
copies of the statements and documents at this stage
would be detrimental to the investigation in progress
from prosecution point of view and might even endanger
the life of such of those witnesses who have either
deposed against the detenus or provided clues. under
these circumstances furnishing of companyies of statements
and documents relied upon in the grounds for detaining
the aforesaid accused at this stage would number be in
public interest. however we have numberobjection for
furnishing companyies of the panchanamas. in this affidavit shri salvi has number stated that he had
personally applied his mind to what the companylector had said
in his letter dated february 27 1980 number has he affirmed
that he had intimated to the detenu that the companyies had been
refused in exercise of the discretion under article 22 6  of
the companystitution on the ground that the disclosure of that
information was in the opinion of the government number in
the public interest. it is well settled that the companystitutional imperatives
enacted in article 22 5  of the companystitution are two-fold

the detaining authority must as soon as may be that
is as soon as practicable after the detention companymunicate
to the detenu the grounds on which the order has been made
and  ii  the detaining authority must afford the detenu the
earliest opportunity of making a representation against the
detention order. in the companytext grounds does number merely
mean a recital or reproduction of a ground of satisfaction
of the authority in the language of section 3 number is its
connumberation restricted to a bare statement of companyclusion of
fact. numberhing less than all the basic facts and materials
which influenced the detaining authority in making the order
of detention must be companymunicated to the detenu. this is
the ratio of the decision in khudiram das v. the state of
west bengal ors. to which one of us  sarkaria j.  was a
party. this principle was enunciated after an exhaustive
survey of the authorities by bhagwati j. who delivered the
opinion of the companyrt. it is therefore number necessary to
burden this judgment by numbericing all the other decisions
which were examined in that case. the mere fact that the
grounds of detention served on the detenu are elaborate
does number absolve the detaining authority from its
constitutional responsibility to supply all the basic facts
and materials relied upon in the grounds to the detenu. in
the instant case the grounds companytain only the substance of
the statements while the detenu had asked for companyies of the
full text of those statements. it is submitted by the
learned companynsel for the petitioner that in the absence of
the full texts of these statements which had been referred
to and relied upon in the grounds of detention the
detenus companyld number make an effective representation and there
is disobedience of the second companystitutional imperative
pointed out in khudirams case. there is merit in this
submission. the second reason for number-supply of the companyies given by
shri salvi it may be recalled is that the companylector had
said that the supply of the companyies at that stage would be
detrimental to the investigation and public interest. this
so-called reason also was unsustainable
in law. shri salvi does number appear to have applied his mind
to the question whether or number the supply of these companyies
would be injurious to public interest. he appears to have
mechanically endorsed what had been written to him by the
collector in his letter dated february 27 1980. the detenu
had asked for companyies of three kinds of documents  a  his
own statements which according to the grounds of detention
were in companysistent and companytradictory to each other  b
copies of the statements of his father who is the detenu in
writ petition number 435/80. these statements. also according
to the grounds of detention were mutually inconsistent.  c
the full texts of the statements made by the four persons
whose names particulars and substance of their statements
were mentioned in the grounds of detention. as regards the first two categories of statements the
substance of which was already in the knumberledge of the
deponents numberquestion of their disclosure being harmful to
the public interest companyld arise. number companyld the supply of the
full text of those statements by any stretch of
imagination be said to be such that it might endanger the
lives of the deponents. regarding category  c  the
substance of the statements of the four persons mentioned in
the grounds of detention had already been disclosed to the
detenus. it was therefore number reasonably possible to say
that the disclosure of the full texts of their statements
would endanger their safety or harm public interest. in the
copies of the statements of those persons which was
ultimately supplied to the detenus after undue delay on the
direction of the central government there is a reference to
the earlier statements of these four persons in which they
had on the basis of some account books and documents
supported the companytention of the detenus that the latter had
acquired the gems in question from those persons. the
statements supplied to the detenus are their subsequent
statements in which they have companypletely resiled from their
earlier statements. it is obvious that the supply of the
earlier statements which were entirely in favour of the
detenus and the full texts of which have been with held
could number by any reckoning expose those persons to any
alarm or danger at the hands of the agents or partisans of
the detenus. be that as it may if any part of the statements of
those witnesses had to be withheld in public interest the
appropriate authority companyld after due application of its
own mind make an order under clause  6  of article 22 of
the companystitution withholding the supply of those portions of
statements after satisfying itself that their disclosure
would be against the public interest. in the instant case
the detaining authority without applying its mind to the
nature of the documents the companyies of which were asked for
by the detenus mechanically
refused as desired by the companylector to supply the companyies of
all the documents. indeed it was on receiving a direction
from the central government that the companyies were supplied. on account of this chill indifference and arbitrary refusal
the detenu who had applied for companyies on february 18 1980
could get the same only on march 27 1980 i.e. after more
than one month. thus there was unreasonable delay of more
than a month in supplying the companyies to the detenus of the
material that had been relied upon or referred to in the
grounds of detention. there was thus an infraction of the
constitutional imperative that in addition to the supply of
the grounds of detention all the basic material relied upon
or referred to in those grounds must be supplied to the
detenu with reasonable expedition to enable him to make a
full and effective representation at the earliest. of
course what is reasonable expedition is a question of
fact depending upon the circumstances of the particular
case.