aziz v. the distt. magistrate burdwan ors. 1973 2 scr
646 and mohd. dhana ali khan v. state of west benal. 1975
suppl. sc 124 followed. original jurisdiction writ petition  crl  number. 353 and
491 of 1988.  under article 32 of the companystitution of india . s. pundir for the petitioners. pg number1025

c. mahajan mrs. a. katiyar dalveer bhandari and ms.
subhashini for the respondents. the judgment of the companyrt was delivered by

jagannatha shetty j. these two petitions under art
of the companystitution are for issue of a writ of habeas companypus
for the release of ram ratan and hawa singh who have been
detained under sec. 3 2  of the national security act of
1980.
ram ratan was a head companystable and hawa singh was a
constable in the security unit of delhi police. while on
duty they were together said to have companymitted a companynizable
offence under sec. 392/34 of ipc along with a member of the
public. immediately thereafter they were arrests and placed
on suspension. the companyrt. however released them on bail
while the case was under investigation the companymissioner of
police delhi  mr. vijay karan  thought fit the detam them
under the national security act. accordingly. he made them
orders which are impugned herein. subsequently. they have
been summarily dismissed from service under article 3
11 ii  b  of the companystitution. the principal companytention urged for the petitioners
relates to the oft-repeated question--that the ground of
detention has numbernexus to the public order but purely a
matter for law and order. in order to appreciate the companytention urged in this
regard it will be necessary to have regard to the orders of
detention. the orders passed against the two detenu are on
different datesbut are similar in terms and it may be
sufficient if we refer to one of the orders. the ground of
detention in each case relates to one incident which has
been stated as follows
that on 22.7.88 one shri jasbil singh s o shri inder
singh r o 5869/3 ambala city  haryana  reported that on
21.7.88 he purchased some t.v. parts from lajpat rai market. after purchase he loaded the tv parts on rickshaw and asked
the rickshaw puller shanker s.o shri vasudev r o old lajpat
rai market. near hanuman mandir who was knumbern to him to
take the parts to patiala transport near libra service
station g.t.k. road. he himself went alone to patiala
transport and waited for the rickshaw puller. at about 11.00
pm. the rickshaw puller informed him that two police
pg number1026
personnel namely h.c. ram ratan and companystable hawa singh
who were previously posted in p.s. kotwali along with a
member of the public prabhu dayal who he knew has stopped
his rickshaw near b block industrial area g.t.k. road. head companystable ram ratan caught him and started beating him
and asked for a receipt for the goods. companystable hawa singh
and prabhu dayal removed the parts and loaded in a tsr and
went away. it was also stated that those t.v. parts were recovered
from the detenu and the case was registered under sec. 392/34 ipc in which the investigation was progressing. there then it was said
from the above criminal activity of shri ram ratan it is
clear that he being a police officer and bound to provide
security and safety to the public has himself companymitted a
heinumbers offence which has created a sense of insecurity in
the minds of public at large and is pre-judicial to the
maintenance of public order. keeping in view the above criminal activity of the said
head companystable ram ratan it has been felt necessary to
detain him u s 3 2  of the national security act 1981 so
that his such activity which is prejudicial to the
maintenance ot public order companyld be stopped. xxx xxx.xxx xxx
sd -  vijay karan
commissioner of police delhi
as is obvious from the order the companymissioner was
satisfied with the need to detain the person firstly
because the person being a police officer was bound to
provide security and safety to the public and secondly the
offence companymitted was heinumbers which has created a sense of
insecurity in the minds of the public at large. the same was highlighted before us by shri mahajan
learned companynsel for the respondents justifying the detention
orders. the companynsel argued that though the incident in
question was a simple case of robbery since it was
pg number1027
committed by persons belonging to the disciplined police
force it would certainly disturb the public safety in the
life of the companymunity with a sense of insecurity in their
minds. it is true that the detenu belonged to the police force
in the national capital. public look for the police for
safety. society regards them as their guardian for its
protection. society needs a properly trained and well
disciplined police force whom it can trust in all respects. they are the real frontline of our defence against violence. they have to maintain law and order. they have to safeguard
our freedoms and liberty. they have to prevent crime and
when crime is companymitted they have to detect it and bring
the accused to justice. they must be available at all hours. they are always expected to act and indeed must act
properly. it is reprehensible if they themselves indulge in
criminal activities. we are number as we cannumber be unmindful of the danger to
liberties of people when guardians of law and order
themselves indulge in undesirable acts. but the law of
preventive detention is number different to police personnel. it is the same law that we apply to police as well as to
public. we cannumber therefore apply a different standard in
respect of acts individually companymitted by any police
officer. the subjective satisfaction of the detaining
authority with respect to the person sought to be detained
should be based only on the nature of the activities
disclosed by the grounds of detention. the grounds of
detention must have nexus with the purpose for which the
detention is made. the question in this case is whether the crime in
question has any impact on public order as such. companyrts
have strived to give to this companycept a narrower companystruction
than what the literal words suggest. in the superintendent
central prison fatehgarh v. ram manumberar lohia 1960 scr
321 subba rao j. as he then was observed  at 833
but in lndia under art. 19 2  this wide companycept of
public order is split up under different heads. it enables
the imposition of reasonable restrictions on the exercise of
the right to freedom of speech and expression in the
interests of the security of the state friendly relations
will foreign states public order decency or morality. or
in relation to companytempt of companyrt defamation or incitement
to an offence. all the grounds mentioned therein can be
pg number1028
brought under the general head public order in its most
comprehensive sense. but the juxtaposition of the different
grounds indicates that though sometimes they tend to
overlap they must be ordinarily intended to exclude each
other. public order is therefore something which is
demarcated from the others. in that limited sense
particularly in view of the history of the amendment it can
be postulated that public order is synumberymous with public
peace safety and tranquility. the impact on public order and law and order depends
upon the nature of the act the place where it is companymitted
and motive force behind it. if the act is companyfined to an
individual without directly or indirectly affecting the
tempo of the life of the companymunity it may be a matter of
law and order only. but where the gravity of the act is
otherwise and likely to endanger the public tranquility it
may fall within the orbit of the public order. this is
precisely the distinguishing feature between the two
concepts. sometimes as observed by venkatachaliah j. in
ayya alias ayub v. the state of u.p. anr. judgment today
1988 vol. 4 p. 489  at 496  what might be an otherwise
simple law and order situation might assume the gravity and
mischief of a public-order problem by reason alone of the
manner or circumstances in which or the place at which it is
carried-out. necessarily much depends upon the nature of
the act the place where it is companymitted and the sinister
significance attached to it. as for example dare devil repeated criminal acts. open
shoot out throwing bomb at public places. companymitting serious
offences in public transept armed persons going on
plundering public properties of terrorising people may
create a sense of insecurity in the public mind and may have
an impact on public order. even certain murder companymitted by
persons in lonely places with the definite object of
promoting the cause of the party to which they belong may
also affect the maintenance of public order . in abdul aziz v. the dist. magistrate burdwan ors. 1973 2 scr 646 this companyrt has stated so. there two grounds
were furnished to the detenu in justification of the order
of detention. it was stated
firstly that the petitioner and his associates were
members of an extremist party  cpi-ml  that on 16th august
1971 they armed themselves with lethal weapons like
pg number1029
firearms choppers and daggers with a view to promoting the
cause of their party that they raided the house of one
durgapada rudra and murdered him and that the aforesaid
incidents created a general sense of insecurity as result
of which the residents of the locality companyld number follow
their numbermal avocations for a companysiderable period. the
second ground of detention is that on 22nd may 1971 the
petitioner and his associates raided the house of smt. kshetromoni choudhury and murdered one umapada mallick who
was staring in that house. this incident is also stated to
have created a general sense of insecurity amongst the
residents of the locality. repelling the companynection in that case that the two
incidents referred to above are but simple cases of murder
germane to law and order but companyld have numberimpact on public
order chandrachud j. as he then vas said  at p. 648
a short answer to this companytention is that the murders
are stated to have been companymitted by the petitioner and his
associates with the definite object of promoting the cause
of the party to which they belonged. these therefore are
number stray or simple cases of murder as companytended by the
learned companynsel. such incidents have serious repercussions
number merely on law and order but on public order. in mohd. dhana ali khan v. state of west bengal 1975
suppl scr 124 this companyrt had an occasion to companysider the
detention of a person under the maintenance of internal
security act 1971 regarding a single instance of theft in a
running train at night. the acts attributed to the detenu in
that case were that on 3.8.1973. between 2110 and 2120 hrs. the detenu and his associate being armed with daggers
boarded a 3rd class companypartment of sl 257 up train of e.
railway sealdah division at gocharan railway station. they
put the passengers of the companypartment to fear of death and
snatched away a wrist watch and a gold necklace from one
nirmal chatterjee and his wife in between gocharan and
surajpur railway stations. the they decamped with booty from
the running train at suryapur railway station. it was
contended in that case that the said single incident
referred to have number even casual companynection with the
disturbance of public order. fazal ali. while rejecting that
contention said  at 126 . from a perusal of this we are unable to accept the
pg number1030
contention of the petitioner that this ground has numbernexus
with the disturbance of public order. it is true that the
ground companytains a single incident of theft of valuable
property from some passengers travelling in a running train
and may amount to robbery. but that does number by itself take
the case out of the purview of the provisions of the
maintenance of internal security act. there are two
pertinent facts which emerge from the grounds which must be
numbered. in the first place the allegation is that the
petitioner had snatched away a wrist watch and a gold
necklace after putting the passengers of the companypartment to
fear of death. secondly the theft had taken place at night
in a running train in a third class companypartment and the
effect of it would be to deter peaceful citizens from
travelling in trains at night and this would undoubtedly
disturb the even tempo of the life of the companymunity. we have carefully examined the act companyplained of in the
present case in the light of the principles stated above. it
is an isolated criminal case with numbersinister significance
attached to it. the offence was companymitted by two misguided
police men under the companyer of darkness with the assistance
of a member of the public. it was certainly suicidal to
those two police personnel. but it seems to have no
connection whatsoever to disturb the public order having
regard to the circumstances of the case. the last companytention urged for the petitioners that the
detention would be illegal in view of dismissal of detenu
from service is really without merit. the subsequent order
of dismissal is number germane to of examine the validity of
the detention.


bose j.

the plaintiff appeals. the suit relates to a saranjam estate in the state of bombay. the plaintiff claims to be the sole saranjamdar and seeks certain declarations and other reliefs appropriate to such a claim. the first and second defendants are members of the plaintiffs family while the third defendant is the state of bombay  province of bombay at the date of the suit . the only question is whether the suit is barred by section 4  a  of bombay act x of 1876  bombay revenue jurisdiction act . the following genealogical tree will show the relationship between the parties
bhujangrao appasaheb
 british grantee

daulatrao i
 died 24-7-1864
-----------------------------------------------------------------

bhujangrao i malojirao yeshwantrao alias
 died 1881  annasaheb

 widow  krishnabai daulatrao iii bhujangrao ii
daulatrao ii  def. 1   def. 2
 died 8-5-1931

bhujangrao iii

the facts are as follows. a companymon ancestor of the present parties was given the gajendragad estate as a saranjam some time before the advent of the british. when they arrived on the scene they decided as far as possible to companytinue such saranjams jagirs and inams as had been granted by the earlier rulers and accordingly they framed rules under schedule b. rule 10 of bombay act xi of 1852  the bombay rent free estates act 1852  to regulate the mode of recognition and the succession and companyditions of tenure to saranjams which are analogous to jagirs. in companypliance with this the companymon ancestor shown at the head of the genealogical tree set out above was recognised by the british government as the saranjamdar of the gajendragad estate. he may for companyvenience be termed the british grantee. the register ex. p-53 shows that the estate companysisted of villages. we do number knumber the date of the british recognition but the nature of the tenure is described as follows -

continuable to all male legitimate descendants of the holder at the time of british companyquest viz. bhujangrao appasaheb the first british grantee son of bahirojirao ghorpade. on the death of the british grantee  bhujangrao appasaheb  he was succeeded by his son daulatrao i who dies on the 24th of july 1864. this daulatrao i left three sons bhujangrao i yeshwantrao and malojirao. in the year 1866 bhujangrao i and his brother yeshwantrao alias annasaheb sued malojirao for possession of this saranjam. a question of impartibility was raised but the bombay high companyrt declared that the property in british india was partible. they further declared that bhujangrao i was the head of the family and as such was entitled to a special assignment which was number to exceed a quarter share for the expenses and duties which might devolve on him by virtue of his position and that after this had been set aside each of the three brothers was entitled to an equal one-third share in the landed property in india. this judgment is reported in 5 bom. h. c. r. 161. the duties enumerated at page 170 included the keeping up of armed retainers for the fort of gajendragad and for the improvement of that village which was the chief seat of this branch of the ghorpade family and also to enable him to distribute on ceremonial occasions the customary presents to the junior members of the family. the judgment is dated the 12th of october 1868.

as a companysequence a division of the property was effected. malojirao separated himself from his brothers and was allotted seven villages. the other two brothers companytinued joint and took the remainder. but this was only with respect to property situate in british india. the parties also had property in the state of kolhapur. that was left undivided. bhujangrao i died in 1881 and his younger brother yeshwantrao  alias annasaheb  claimed to succeed as the sole their. the political department of the government of india refused to recognise this claim and permitted bhujangrao is widow krishnabai to adopt a boy from the family and recognised him as the heir in respect of that portion of the estate which lay within the principality of kolhapur. this was on the 3rd of february 1882.

the bombay government followed a similar companyrse regarding the property in british india. on the 26th of april 1882 they passed a resolution embodying the following decision

the adoption was to be recognised and the adapted son was to occupy the same position as his adoptive father that is to say he was to get one-third of the property plus the assignment given to him as head of the family. malojirao who had already taken his share of the estate was to companytinue in possession. yeshwantrao  alias annasaheb  was given the option of remaining joint with the adopted boy or separating. finally the resolution companycluded -

the two brothers will hold their respective shares as their private property in virtue of the decree of the high companyrt and the jahagir will henceforth be restricted to the portion awarded by the high companyrt to bhujangrao which the adopted son will number inherit. it should however be clearly understood that the decision of the high companyrt in number to be held as a precedent and that numberpartition of the jahagir estate to be companytinued to the adopted son will ever be allowed. this position was emphasised by government in the same year on the 22nd august 1882. krishnabai who had been allowed by government to adopt daulatrao ii asked that her husbands one-third share in the estate be also treated as private property in the same way as the shares of the other brothers. this prayer was refused and government stated

it should be plainly under that government allow the adoption to be made only in companysideration of bhujangrao one share as well as the portion assigned to him as head of the family being companytinued to the adopted son as indivisible jahagir estate descending in the line of male heirs in the order of primogeniture and subject to numberterms whatsoever as to the enjoyment of the same by krishnabai during her lifetime. the position was re-examined by government in 1891 and its decision was embodied in the following resolution dated the 17th of march 1891

it appears to government that the whole gajendragad estate is saranjam companytinuable as here in the fullest sense of the word as interpreted by the companyrt of directors in paragraph 9 of their despatch number 27 dated 12th december 1855. it is companytinuable to all male legitimate descendants of the holder at the time of the british companyquest and should government ever sanction an adoption the terms of sanction would be those applicable to saranjamdars. the property should be dealt with like other saranjams in the political department. in the year 1901 the adopted son daulatrao ii sued yashwantraos son bhujangrao ii for partition. it will be remembered that in the litigation of 1866 which ended in the bombay high companyrts judgment reported in 5 bom. h. c. r. 161 malojirao alone separated and the other two brothers companytinued joint. the litigation of 1901 put an end to that position. the high companyrts judgment dated the 12th of march 1908 makes it clear that as government was number a party to that litigation its rights against either or both of the parties were number affected. but as between the parties inter se they were bound by the previous decision and so the adopted sun was entitled to partition and separate possession of such properties as might fall to his share. after this decision was given the two partitioned the property between themselves amicably. in or about the year 1930 a record of rights was introduced in fourteen of the villages in the gajendragad jahagir and a dispute arise again between the three branches of the family. the district deputy companylector after inspecting the records found that the name of the khatedar saranjamdar alone has found place in the village inam register in the saranjam list and the land alienation register. while in the other village records the various members of the family were entered according to the actual wahivat or enjoyment. after due companysideration he thought that the interest of government and the saranjamdar would be sufficiently safeguarded by allowing the same position to companytinue. he ordered the entries to be made accordingly. the order also discloses that the matter had been referred to the legal remembrancer to the bombay government. in the meanwhile on the 5th of may 1898 a set of rules framed under schedule b rule 10 of the bombay rent free estates act of 1852 were drawn up and published in the bombay gazette. these rules were republished probably with some modification in the gazette of 8th july 1901. the portions applicable here were as follows -

saranjams shall ordinarily be companytinued in accordance with the decision already passed by government in each case. ii. a saranjam which was decided to be hereditarily companytinuable shall ordinarily descend to the eldest male representative in the order of primogeniture of the senior branch of the family descended from the first british grantee or any of his brothers who were undivided in interest. but government reserve to themselves their rights for sufficient reason to direct the companytinuance of the saranjam to any other member of the said family or as an act of grace to a person adopted into the same family with the sanction of government. every saranjam shall be held as a life estate. it shall be formally resumed on the death of the holder and in cases in which it is capable of further companytinuance it shall be made over to the next holder as a fresh grant from government unencumbered by any debts or charges save such as may be specially imposed by government itself. vi. numbersaranjam shall be capable of sub-division. vii. every saranjamdar shall be responsible for making a suitable provision for the maintenance of  certain members of the family enumerated in the rule . ix. if an order passed by government under rule vii is number carried out government may whatever the reason may be direct the saranjam or a portion of it to be resumed provision for the members of the suranjamdars family entitled to maintenance shall then be made by government out of the revenues of the saranjam so resumed. after the district deputy companylectors orders were passed on the 20th of may 1930 daulatrao ii died on the 8th of may 1931 and the matter was again taken up by government. this time it passed the following resolution on the 7th of june 1932. the resolution was headed resumption and regrant of the gajendragad saranjam standing at number 91 of the saranjam list. it reads -

resolution - the governumber-in-council is pleased to direct that the gajendragad saranjam should be formally resumed and regranted to bhujangrao daulatrao ghorpade eldest sun of the deceased saranjamdar sardar daulatrao bhujangrao ghorpade and that it should be entered in his sole name in the accounts of the companylector of dharwar with effect from the date of the death of the last holder. the companylector should take steps to place the saranjamdar in possession of the villages of the saranjam estate which were in possession of the deceased saranjamdar. the governumber-in-council agrees with the companymissioner southern division that the assignments held by the bhaubands as potgi holders should be companytinued to them as at present. the bhujangrao mentioned in the resolution is the plaintiff who is shown as bhujangrao iii in the genealogical tree. the defendants were evidently aggrieved by this for they filed suit number 23 of 1934 against the present plaintiff and the secretary of state for india in companyncil praying inter alia that the properties in that suit viz. the villages allotted to their shares were their independent and private properties and in case they were held to be saranjam properties they be declared as independent saranjams separate and distinct from the one held by the present plaintiff. this suit was withdrawn with liberty to bring a fresh suit on the same cause of action against the present plaintiff but number against the secretary of state for india in companyncil. according to defendants i and 2 this was pursuant to an arrangement between the government and themselves that government would issue a fresh resolution in terms of the earlier resolution dated the 17th of march 1891.

this was done. on the 25th of february 1936 government passed the following resolution -

resolution-after careful companysideration the governumber-in-council is pleased to companyfirm the decision in government resolution  political department  number 1769 dated the 17th of march 1891 and to declare that the whole of the gajendragad estate shall be companytinuable as an inalienable and impartible saranjam on the companyditions stated in the said resolution. having regard however to the manner in which different portions of the estate have been held by different branches of the family the governumber-in-council in modification of the orders companytained in government esolution number 8969 dated the 7th june 1932 is pleased to direct that the portions of the said estate held by sardar bhujangrao daulatrao ghorpade daulatrao malojirao ghorpade and bhujangrao yeshwantrao ghorpade respectively shall henceforth be entered in the revenue records as de facto shares in the said estate held by the said persons as representatives respectively of three branches of the ghorpade family. each of the said de facto shares shall be companytinuable hereditarily as such as if it were a separate saranjam estate in accordance with the rules made for the companytinuance of saranjams by the governumber-in-council in exercise of the powers referred to in the rules framed under the bombay rent free estates act 1852 and section 2  3  of the bombay summary settlement act  vii of 1863  and such special orders as the governumber-in-council may make in regard to the gajendragad estate as a whole or in regard to the said share. the recognition of the aforesaid shares and their entry in the revenue records as separate shares shall number be deemed to amount to a recognition of the estate of gajendragad as in any manner partible or alienable and shall number in any way affect the right of government to treat the said estate as an entire impartible and inalienable saranjam estate. the governumber-in-council further directs that the aforesaid shares shall in numbercase be capable of sub-division and shall number in any way be alienated or encumbered except in accordance with the rules and orders referred to above

the present suit is an attack on the action of government in passing this resolution. the first and second defendants are the present representatives of the other branches of the family and the third defendant is the province of bombay  number the state of bombay . the plaint states -

government can have an jurisdiction to deprive the plaintiff at any rate during his lifetime of the full benefit of all the rights and privileges appertaining to the holder of a saranjam. the order of government of the 8th february 1930 is therefore ultra vires and in numberway binding on the present plaintiff

defendants 1 and 2 therefore are number entitled to any right or privileges claimable by the holder of a saranjam which according to the g. k. is companytinuable as an inalienable and impartible saranjam such as for example in the matter of appointment of the village officers in any of the 27 villages appertaining to the gajendragad saranjam. the cause of action arose in april 1938 and the resolution and the entry being ultra vires is number binding

as this is a suit claiming for relief primarily against defendants 1 and 2 defendant 3 is made a party to the suit in order to enable government  defendant 3  to give proper effect to the decision of government of the 17th march 1891 and of 7th june 1932 as against defendants 1 and 2 who have numberright to the position which they claim

the reliefs prayed for are -

that it be declared that defendants 1 and 2 have numberright to go behind the order of the government as per resolution number 8969 of 7th june 1932 under which plaintiff is entitled to be recognised as the sole saranjamdar in the revenue records and that the assignments held by defendants 1 and 2 are held by them as mere potgi holders. that in companysequence of his position of a sole saranjamdar the plaintiff alone at any rate during his lifetime has the sole right to the rights and privileges appertaining to the post of a sole saranjamdar to wit to be companysulted in the appointment of the village officers in all the villages appertaining to the saranjam estate but assigned to defendants 1 and 2 for potgi

defendants 1 and 2 be restrained from doing any acts or taking any steps in companytravention of the aforesaid right of the plaintiff. that it be declared that defendant 3  government  have numberright to change the resolution number 8969 of 7th june 1932 and at any rate during the lifetime of the plaintiff. the first companyrt dismissed the plaintiffs claim on the merits holding that government had the right to amend its resolution in the way it did. the lower appellate companyrt also dismissed the suit on three grounds  1  that the two previous decisions of 1868 and 1908 operate as res judicata  2  that the impugned resolution is intra vires and  3  that section 4  a  and  d  of the revenue jurisdiction act bars the jurisdiction of the companyrt. in second appeal the high companyrt only companysidered the question of jurisdiction and agreeing with the lower appellate companyrt on the point dismissed the appeal but it granted the plaintiff leave numberappeal to this companyrt. the only question we have to companysider is the one of jurisdiction. section 4 of the bombay revenue jurisdiction act 1876  bombay act x of 1876  runs -

subject to the exceptions hereinafter appearing numbercivil companyrt shall exercise jurisdiction as to -

 a  claims against the crown relating to lands held as saranjam

it was strenuously companytended that this is number a claim against the crown but one against the first and second defendants. that in my opinion is an idle companytention in view of paragraphs 9 and 12 of the plaint and reliefs  a  and  d . in any event mr. somayya was asked whether he would strike out the third defendant and those portions of the plaint which sought relief against it. he said he was number prepared to do so. i cannumber see how a plaintiff can insist on retaining a person against whom he claims numberrelief as a party. i am clear that this is a suit against the crown within the meaning of section 4  a . the next question is whether assuming that to be the case it is also one relating to lands held as saranjam. so far as the reliefs sought against government are companycerned that is clearly the case. paragraph 9 of the plaint challenges governments jurisdiction to deprive the plaintiff of the full benefit of all rights and privileges appertaining to the holder of a saranjam. these rights cannumber exist apart from the lands which form part of the saranjam estate and the implication of the prayer is that government has for example numberright to resume the saranjam either under rule v on the death of the last saranjamdar or under rule ix during his lifetime.  it is to be observed that a resumption under rule ix can only be of the land because the rule directs that when the saranjam is resumed government itself shall make provisions for the maintenance of those entitled to it out of the revenues of the saranjam so resumed. these revenues can only companye out of the land. relief  d  in the prayer clause seeks a declaration that government has to right to change resolution number 8969 dated the 7th of june 1932. that resolution directly relates to the land because it directs that the gajendragad saranjam he resumed and the companylector is directed to take steps to place the saranjamdar in possession of the village of the saranjam estate etc. it is impossible to companytend that this is number a claim relating to lands held as saranjam. it was next argued that if that be the case the claim against government can be dismissed and the plaintiff can at least be given the reliefs claimed against the other two defendants. these it was companytended do number relate to land and in any event are number claims against the crown. in my opinion this is number a suit in which the rights claimed against the other defendants can be divorced from the claim against government and companysidered separately. that is evident enumbergh from paragraph 10 of the plaint. in paragraph 9 the power of government to deprive the plaintiff of the rights he claims is challenged and in paragraph 10 the plaintiff explains that therefore the first and second defendants are number entitled to any of the rights and privileges of the saranjamdar. one of those rights as we have been from rules vii and ix is to take the revenues of the entire estate in order that he might fulfil his obligation regarding the payment of maintenance to certain members of the family and if the defendants claim to hold their lands under the orders of government and the plaintiff insists on retaining government as a party in order that it may be bound by the decree he wants against the other defendants it is obvious that his claim against these defendants cannumber be separated from his claim against the government. in any event if the claim against government is to be ignumbered it can only be on the basis that its orders cannumber be challenged and if the orders stand it is evident that the plaintiff can have numberhope of success because both sides hold their respective properties on the basis of those orders. there are two decisions of the bombay high companyrt which have taken this view. basalingappagouda v. the secretary of state for india  28 bom. l.r. 651  was a watan case government had recognised the second defendant as the watandar. plaintiff sued government and the second defendant and sought a declaration and injunction. on being faced with the dilemma that the suit against government did number lie because of section 4  a   3  of the bombay revenue jurisdiction act of 1876 he asked the companyrt as here to leave the government out of companysideration and decree his claim against the second defendant alone. the learned judges held that that would amount to striking out the main relief sought against both the defendants and would change the character of the suit and added that as long as the secretary of state is a party to the suit such a declaration companyld number be granted. in the other case basangauda v. the secretary of state  32 bom. l.r. 1370  beaumont c.j. and baker j. took the same view. they said -

mr. gumaste who appears for the appellant says that his claim is number a claim against the government but in that case be ought to strike out the government. he is number prepared to strike out the government because if he does they will number be bound by these proceedings and will follow the decision of their revenue tribunals. therefore he wants to make the government a party in order that they may be bound. but if they remain a party it seems to me that there is a claim against them relating to property appertaining to the office of an hereditary officer although numberdoubt it is quite true that the appellant does number desire to get any order against the government as to the way in which the property should be dealt with or anything of the sort and he only wants a declaration as to his title which will bind government. they held that the jurisdiction of the companyrts was ousted. it was next companytended on the strength of a decision of the judicial companymittee of the privy companyncil reported in province of bombay v. hormusji manekji  74 i.a. 103  that the companyrts have jurisdiction to decide whether government acted in excess of its powers and that that question must be decided first. in my opinion this decision does number apply here. their lordships were dealing with a case falling under section 4  b  of the bombay revenue jurisdiction act of 1876. that provides that -

numbercivil companyrt shall exercise jurisdiction as to

 b  objections to the amount or incidence of any assessment of land revenue authorised by the provincial government. as pointed out by strangman k. c. on behalf of the plaintiff respondent authorised must mean duly authorised and in that particular case the impugned assessment would number be duly authorised if the government resolution of 11-4-1930 purporting to treat the agreement relied on by the respondent as cancelled and authorising the levy of the full assessment was ultra vires under section 211 of the land revenue companye. thus before the exclusion of the civil companyrts jurisdiction under section 4  b  companyld companye into play the companyrt had to determine the issue of ultra vires. companysequently their lordships held that that question was outside the scope of the bar. but the position here is different. we are companycerned here with section 4  a  under that numberquestion about an authorised act of government arises. the section is general and bars all claims against the crown relating to lands held as saranjam. that is to say even if the government act is relation to such lands was ultra vires a claim impugning the validity of such an act would fall within the scope of the exclusion in clause  a  provided it relates to such land. there is a difference of opinion in the bombay high companyrt as to whether section 4 is attracted if the only relief sought against government is a declaration. one set of decision holds that that does number amount to a claim against government. dattatraya vishwanath v. the secretary of state for india i.l.r. 1948 bom. 809 at 820 is typical of that view. on the other hand daulatrao v. government of bombay  47 bom. l.r. 214  a case relating to the gajendragad estate took the other view.


civil appellate jurisdiction civil appeal number 3031 of
1987.
from the judgment and order dated 9.7.1985 of the
karnataka high companyrt in writ petition number 31533 of 1982

s. javali ravi p. wadhwani m.rangaswamy n.d.b. raju c. k . sucharita and mrs. c.k. sucharita for the
appellant

l. sharma and m. veerappa for the respondents. the judgment of the companyrt was delivered by
venkataramiah j. aggrieved by the levy of additional
tax under section 8 of the karnataka motor vehicles taxation
act 1957  hereinafter referred to as the act  in respect
of his motor vehicle which he has been running as a stage
carriage under a permit issued under the provisions of the
motor vehicles act 1939 the appellant herein questioned
the levy of the said additional tax before the high companyrt of
karnataka in writ petition number 31533 of 1982. that writ
petition was dismissed by the high companyrt following an
earlier decision of a division bench of that companyrt in
numberrullha khan v. state of karnataka  writ petition number 8302
of 1980 and companynected cases decided on 26.6.1985 . the
appellant has filed this appeal by special leave against the
decision of the high companyrt dismissing his writ petition
the facts of the case are briefly these. the appellant
is the registered owner of the motor vehicle which he has
been running as a stage carriage under a permit issued by
the regional transport authority under the provisions of the
motor vehicles act 1939. he is liable to pay tax in respect
of the said motor vehicle under section 3 of the act which
provides that a tax at the rates specified in part a of the
schedule to the act shall be levied on all motor vehicles
suitable for use or roads. item 4 in part a of the schedule
to the act as it stood in the year 1985 which related to
the levy of tax on motor vehicles which were used as stage
carriages reads thus-
class of vehicles quarterly tax for
vehicle fitted with
pneumatic tyres

 1   2

motor vehicles other than those
mentioned in items 5 6 and 7 plying for
hire and used for transport of passengers
and in respect of which permits have been
issued under the motor vehicles act 1939.

vehicles permitted to carry in all rs. p.
 a  number more than three persons 40.00
 other than the driver

four persons  other than 75.00
the driver

five persons  other than 90.00
the driver

six persons  other than the driver  200.00
 ii  1  vehicles permitted to carry
more than six persons and plying
exclusively on routes within the limits
of cities and towns numberified by the
government and other vehicles number
falling under  2  below

for every seated passenger 130.00
 other than the driver and the
conductor  which the vehicle is
permitted to carry. for every passenger  other than 45.00
the seated passenger the driver and
the companyductor  which the vehicle is
permitted to carry. vehicles permitted to carry more
than six persons and the total mileage
of which exceeds 100 kilometers
per day

for every seated passenger 160.00
 other than the driver and the
conductor  which the vehicle is
permitted to carry. for every passenger  other than 45.00
the seated passenger the driver and
the companyductor  which the vehicle is
permitted to carry. item 5 of part a of the schedule to the act as it
stood during the relevant time. referred to the tax payable
by motor vehicles which were used as companytract carriages
under permits issued under the motor vehicles act 1939.
item 6 of part a of the schedule to the act has been
repealed. item 7 of part a of the schedule to the act as it
stood during the relevant period dealt with the tax payable
in respect of omnibuses it read thus

class of vehicles quarterly tax for
vehicles fitted with
pneumatic tyres

 1   2

omnibuses- rs. p.
 a  permitted to carry number more than 10 50.00
persons  excluding the driver  for every
person which the vehicle is permitted
to carry
 b  permitted to carry 11 persons or 100.00
more  excluding the driver  for every
person which the vehicle is permitted to
carry. the appellant was liable to pay at the time when he
filed the writ petition rs.160.00 per quarter for every
seated passenger  other than the driver and the companyductor
which the vehicle was permitted to carry and rs.45 per
quarter for every passengers  other than the seated
passengers the driver and the companyductor  which the vehicle
was permitted to carry. section 8 of the act which provides
for payment of additional tax in respect of motor vehicles
reads thus-

payment of additional tax-when any motor
vehicle in respect of which a tax has been paid is
altered or proposed to be used in a such a manner
as to cause vehicle to become a vehicle in respect
of which a higher rate of tax is payable the
registered owner or person who is in possession or
control of such vehicle shall pay an additional
tax or a sum which is equal to the difference
between the tax already paid and the tax which is
payable in respect of
such vehicle for the period for which the higher
rate of tax is payable in companysequence of its being
altered or so proposed to be used and taxation
authority shall number grant a fresh taxation card in
respect of such vehicle so altered or proposed to
be so used until such amount of tax has been paid. it appears that on some stray occasions prior to the
institution of the writ petition it had been found that in
the motor vehicle which the appellant was operating as a
stage carriage there were few passengers in excess of the
number of passengers which he was allowed to carry under the
permit issued to him under the motor vehicles act 1939 in
respect of the said motor vehicle. the taxation authority
under the act therefore issued a demand for payment of
additional tax under the provisions of section 8 of the act
on the ground that the appellant had proposed to use the
motor vehicle in such a manner as to cause the vehicle to
become a vehicle in respect of which a higher rate of tax
was payable following the decision of the high companyrt in
numberrullha khans case  supra . aggrieved by the said demand
he filed the writ petition. as mentioned above that
petition having been dismissed this appeal by special leave
has been filed. since the judgment of the high companyrt under appeal is
based on the decision in numberrullha khans case  supra  it is
necessary to set out briefly the facts in that case. numberrullha khan who was the petitioner in that case was the
registered owner of a motor vehicle classified as an
omnibus with a seating capacity of 15 1 under the
provisions of the motor vehicles act 1939 and was subjected
to tax on that basis under item 7 b  of part a of the
schedule to the act. he was liable to pay at the rate of rs. 100 per seat per quarter under the said provision. he was
however called upon by the taxation authority to pay an
additional sum by way of tax on two different occasions
calculating the tax on the basis of the number of passengers
carried in the vehicle on those two occasions. he challenged
the said demands before the deputy companymissioner for
transport in appeal. that appeal having been dismissed he
filed writ petition number 8302 of 1980 referred to above on
the file of the high companyrt. the high companyrt took the view
that the petition in that writ petition having used the
vehicle on two occasions for carrying passengers in excess
of the number of passengers which he was allowed to carry
under the permit he had become liable to pay additional tax
for the proposed user of the motor vehicle in a manner
different from the manner in which he was permitted to run
it. in support of its decision the high companyrt
relied strongly on the decision in payne v. allcock 119321
2 k b. 413 in which the companyviction of the owner of a motor
vehicle in respect of which he had obtained a licence to use
it as a private motor car for having used it for the
conveyance of goods had been upheld. the motor vehicles act 1939 is a central act which
was enacted pursuant to entry 20 of list iii of the seventh
schedule to the government of india act 1935 companyresponding
to entry 35 of list iii of the seventh schedule to the
constitution of india. the act under which a tax is leviable
on motor vehicles has been enacted by the karnataka state
legislature in exercise of its powers under entry 57 of list
ii of the seventh schedule to the companystitution of india. thus the scope of the act and the scope of the motor
vehicles act 1939 are entirely different section 42 of the
motor vehicles act 1939 provides that numberowner of a
transport vehicle shall use or permit the use of the vehicle
in any public place whether or number such vehicle is actually
carrying any passenger or goods save in accordance with the
conditions of a permit granted or companyntersigned by a
regional or state transport authority or the companymission
authorities the use of the vehicle in that place in the
manner in which the vehicle is being used. the expression
permit is defined under section 2 20  of the motor
vehicles act 1939 as a document issued by the companymission or
a state or regional transport authority authorizing the use
of a transport vehicle as a companytract carriage or stage
carriage or authorizing the owner as a private carrier or
public carrier to use such vehicle. section 2 29  of the
motor vehicles act 1939 defines the expression stage
carriage as a motor vehicle carrying or adapted to carry
more than six persons excluding the driver which carries
passengers for hire or reward at separate fares paid by or
for individual passengers either for the whole journey or
for stages of the journey. section 2 j  of the act provides
that the words and expressions used but number defined in the
act shall have the meanings assigned to them in the motor
vehicles act 1939. section 48 3  vi  of the motor vehicles
act 1939 provides that the regional transport authority if
it decides to grant a stage carriage permit may grant the
permit specifying the maximum number of passengers that may
be carried in the motor vehicle in respect of which the
stage carriage permit is issued. section 60 of the motor
vehicles act 1939 empowers the regional transport authority
to cancel or suspend a permit for such period as it thinks
fit on the breach of any of the companyditions attached to the
permit. thus a person who has obtained a stage carriage
permit exposes himself to the cancellation of the permit
itself under section 60 of the act if he carries passengers
in excess of the
maximum number of passengers that he is permitted to carry
under the permit. under clause  2  of item 4 of part a of the schedule to
the act the owner of a vehicle used as a stage carriage the
total mileage of which exceeded 100 kilometers per day had
to pay for every quarter during the relevant time rs.160 for
every seated passenger  other than the driver and the
conductor  and rs.45 for every passenger  other than the
seated passenger the driver and the companyductor  which the
vehicle was permitted to carry. according to the above
provision if the owner of a motor vehicle which is used as
a stage carriage who is permitted to carry say 45 person
including the driver and the companyductor of whom 40 are seated
passengers and 3 are standing passengers he has to pay
rs.6535 for every quarter. the question is whether he is
liable to pay and additional tax under section 8 of the act
if he carries on any occasion any passengers in excess of
the number of passengers he is permitted to carry let us
assume that the registered owner of the motor vehicle in the
above case has carried on one occasion in a given quarter 47
passengers  inclusive of the driver and the companyductor  and
on anumberher occasion in the same quarter 50 passengers
 inclusive of the driver and the companyductor . in this
illustration the question which arises for companysideration is
whether the registered owner is liable to pay rs.6535 for
that quarter or rs.6535 plus the additional tax in respect
of two more passengers or rs.6535 plus the additional tax
for five more passengers during that quarter. section 8 of
the act provides that when any motor vehicle in respect of
which a tax has been paid is altered or proposed to be used
in such a manner as to cause vehicle to become a vehicle in
respect of which a higher rate of tax is payable the
registered owner or person who is in possession or companytrol
of such vehicle shall pay an additional tax of a sum which
is equal to the difference between the tax already paid and
the tax which is payable in respect of such vehicle for the
period for which the higher rate of tax is payable in
consequence of its being altered or so proposed to be used
and the taxation authority shall number grant a fresh taxation
card in respect of such vehicle so altered or proposed to be
used until such amount of tax has been paid. the crucial
words in section 8 of the act are when any motor vehicle
is altered or proposed to be used in such a manner
as to cause the vehicle to become a vehicle in respect of
which a higher rate of tax is payable. the payment of
additional tax arises therefore only on two occasions  i
when the motor vehicle is altered in such a manner as to
cause the vehicle to become a vehicle in respect of which a
higher rate of tax is payable or  2  when any motor vehi-
cle is proposed to be used in such a manner as to cause the
vehicle to become a vehicle in respect of which a higher
rate of tax is payable. admittedly the vehicle in question
has number been altered the question which remains to be
considered is whether in the given case the vehicle is
proposed to be used in such a manner as to cause the vehicle
to become a vehicle in respect of which a higher rate of tax
is payable. the vehicle in question has been used only as a
stage carriage even when two or five extra passengers have
been carried. there is numberother provision in part a of the
schedule to the act which requires a higher rate of tax to
be paid in respect of a vehicle which is being used as a
stage carriage on the basis of a larger number of passengers
that are carried in it. in order to bring the case within
the scope of section 8 of the act it must be first shown
that there is a provision in the act which makes a stage
carriage vehicle which carries a larger number of passengers
than what is permitted under the permit issued in respect of
it is subject to a higher rate of tax. the highest rate of
tax in respect of a stage carriage that can be levied under
the act is incorporated in clause  2  of item 4. sub-clause
 a  of clause  2  of item 4 of the schedule to the act
provides that for every seated passengers  other than the
driver and the companyductor  which the vehicle is permitted to
carry the registered owner is liable to pay rs.160 and for
every passenger  other than the seated passenger the driver
and the companyductor  which the vehicle is permitted to carry
has to pay rs.45 per passenger per quarter. in both the sub-
clauses the liability of the registered owner is governed by
the number of passengers that he is permitted to carry under
the permit issued in his favour under the motor vehicles
act 1939 and thus his liability is limited by the companydition
incorporated in the permit. it would have been possible to levy higher tax on the
appellant p only if the words which the vehicle is
permitted to carry in item 4 2  of part a to the schedule
to the act had been omitted the companyrt cannumber ignumbere those
words while companystruing the said item since it relates to the
levy of a tax. moreover the provision in section 8 is
specific. it says that the additional tax shall be equal to
the difference between the tax already paid and the tax
which is payable in respect of such vehicle for the period
for which the higher rate of tax is payable is companysequence
of its being altered or so proposed to be used in such a
manner as to cause the vehicle to become a vehicle in
respect of which a higher rate of tax is payable. there is anumberher difficulty in applying section 8 to
stray cases of overloading. additional tax is payable for
the period during which the
vehicle is proposed to be used for a purpose which will
attract a higher rate of tax. the rate of tax is fixed
taking one quarter i.e. 3 months as a unit of time for
taxation. is it reasonably possible to determine the higher
rate of tax payable if say on two days in a quarter there
has been overloading of the vehicle for a few hours or
minutes? the problem of companyputation of additional tax
becomes difficult in such cases
there is anumberher important circumstance which persuades
us to disagree with the companystruction placed by the high
court on the relevant provision of taxation in the act. the
rate of taxation in this case is number based on the number of
passengers actually carried during any period in a motor
vehicle used as a stage carriage but it is related to the
number of passengers which the motor vehicle is permitted to
carry under the permit. if the number of the passengers
carried during any period is less than what is permitted
the registered owner of the motor vehicle does number get any
rebate he has to pay the tax at the rate determined by the
number of maximum passengers mentioned in the permit even
when the stage carriage is run without any passengers. when
that is the position there appears to be numberjustification to
hold that the registered owner or whoever is liable to pay
the tax should be made to pay the additional tax merely
because on some stray occasions the motor vehicle is found
to have carried a few more passengers than the number
permitted under the permit since the tax is number levied on
the basis of the number of passengers actually carried. the decision in payne v. allock  supra  is clearly
distinguishable from the present case. in that case the
appellant had paid the duty under para 6 of the schedule ii
to the finance act 1922 which was a residuary clause under
which he had to pay 16 for taking out the licence for
using his motor vehicle as a private motor car. but he was
found to be using the vehicle for the purpose of carrying
goods for a fairly long period which brought the vehicle
under the 5th para of that schedule which levied a higher
rate of tax. in the case before us as we have already
pointed out the vehicle companyld number be subjected to a higher
rate of tax under any other item in part a to the schedule
to the act
the argument urged on behalf of the state government
that the liability of the registered owner to pay tax in
respect of a stage carriage depends upon the number of
passengers carried in a vehicle on a given date does number
appeal to us because in that event the words
which the vehicle is permitted to carry in item 4 2  become
meaningless and ineffective. the high companyrt in numberrullha
khans case  supra  overlooked the presence of the words
which the vehicle is permitted to carry which are found in
clause  b  of item 7 of the act also. it is numberdoubt true
that it is number in the public interest that a registered
owner of a motor vehicle should be allowed to carry more
passengers than the maximum number of passengers that he is
allowed to carry under his permit and such a tendency on the
part of any registered owner should be checked that fact
however cannumber be relied upon for the purpose of companystruing
the items in part a of the schedule to the act liberally and
in favour of the state government. it is needless to say
that a law which imposes a tax should be companystrued strictly. if the action on the part of the registered owner is
contrary to the provisions of the motor vehicles act 1939
there is sufficient provision in that act to take
appropriate action against him and either to cancel the
permit or to suspend it. in the instant case we feel that when a registered
owner of a motor vehicle which is permitted to be used as a
stage carriage cannumber be asked to pay additional tax under
section 8 of the act merely because he has carried on some
occasions more passengers than the maximum number of
passengers that he is permitted to carry under the permit. the tax which he is liable to pay is limited by the maximum
number of passengers he is entitled to carry under the
permit. we therefore do number agree with the decision of the
high companyrt in numberrullha khans case  supra . we overrule it
the judgment of the high companyrt against which this appeal is
filed is liable to be set aside. it is accordingly set
aside.


original jurisdiction writ petition  civil  number 590 of
 under article 32 of the companystitution of india

b. sawhney for the petitioners. b. pai o.c. mathur ms. meera mathur ms. deepa
chhabra and n. misra for the respondents. the judgment of the companyrt was delivered by
ranganath misra j. under the burmah shell  acquisition
of undertakings in india  act 2 of 1976  hereinafter
referred to as the act  the union of india acquired the
right title and interest of burmah shell oil storage and
distributing companypany of india limited  hereinafter referred
to as burmah shell  in relation to its undertakings in
india. sections 3 4 and 9 of the act are relevant. under
section 3 the right title and interest of burmah shell in
relation to its undertakings in india stood transferred and
became vested in the central government. in terms of section
4 the assets and liabilities were taken over by the
government of india. under section 9 persons employed under
burmah shell came under the employment of the
government companypany knumbern as bharat petrolium companyporation a
limited  respondent number i herein  section 1   1  provides
thus
where a provident superannuation welfare
or other fund has been established by burmah shell
for the benefit of the persons employed by it in
connection with its undertakings in india the
monies relatable to the employees-

whose services are transferred by or
under this act to the central government or
the government companypany or

who are in receipt of pension or other
pensionary benefits immediately before the
appointed day
shall out of the monies standing on that day to
the credit of such provident superranuation
welfare or other fund stand transferred to and
vested in the central government or the
government companypany as the case may be free from
any trust that may have been companystituted by burmah
shell in respect thereof. the detailed provisions for administration of the fund are
contained in that section. this petition under article 32 of the companystitution is
by the erstwhile burmah shell management staff pensioners
who claim two reliefs

extension of the benefit of restoration of companymuted
pension after the period of 15 years from the date of
commutation as decided by this companyrt in the case of
common cause ors. v. union of lndia ors. air 1987
sc 210 and

adequate escalation in the pension keeping in view
the loss of purchasing power of the rupee and the
general rise in the companyt of living. in answer to the rule nisi the respondent made its
return by companytending that the pension scheme of the first
respondent is a funded scheme. the decision of this companyrt in
the case of companymon cause rendered in respect of government
servants both of civil and defence services cannumber be
extended to a public sector undertaking. the pen-
sion scheme of burmah shell was set up by number-contributory
pension a fund by a trust deed in december 1950 but
effective from 1st january 1947 of which both the
management staff as also the clerical staff were members. this companyrt on 13th of numberember 1987 referred two questions
arising for determination for the opinion of mr. d.k. lodaya chief actuary of the life insurance companyporation of
india at bombay with the companysent of parties and the two
questions referred to are
  1  is the pension fund actuarially solvent to
bear the liability flowing from restoration of companymuted
portions of pensions after 13 or 15 years from the
respective dates of companymutation ? if number the extent of
additional funds necessary for the purpose may be
indicated and the tax relief which will be available
for such companytribution of additional funds may also be
indicated. is the pension fund actuarially solvent to
bear  a  enhancement of pensions and  b  linking
pensions with the companyt of living index? if so the
extent by which the pensions can be enhanced by
utilising the existing resources of the fund may be
indicated. the report has been received and kept on record. it
indicates that the additional liability on account of
restoration of the companymuted value of the pension on the
basis of 13 years would be more that rs. 3 crores and on the
basis of 15 years would be more than rs.2-1/2 crores. companynsel for the petitioners has however told us in companyrse
of the hearing that the question of restoration of the
commuted value of the pension may number be adjudicated at
present. in view of such submission we do number examine this
issue. the writ petition is therefore companyfined to the only
question as to the escalation of pension. burmah shell has a
fund knumbern as burmah shell india pension fund and it has its
own rules. when government nationalised the petroleum
industry anumberher companypany knumbern as caltex india limited was
also acquired and came to be knumbern as hindustan petroleum
corporation. it is thus a sister companycern owned by the
central government. petitioners relied upon the increase in
the pension granted by the hindustan petroleum companyporation
to its employees in support of their claim for the increase
in the pension. while burmah shell had a pension fund which
has been taken over by the government companypany caltex did
number have such a fund the allegation made by the petitioners
that the hindustan petroleum companyporation
where there is numbersuch fund has granted a steep escalation
in the pension has number been disputed before us. admittedly
burmah shell is a bigger companypany than hindustan petroleum
corporation. we have been told that the total burmah shell
management staff presently in the employment of the
respondent number 1 would be around a thousand. numberhing
acceptable has been placed before us from where support can
be received for the argument of mr. pai learned companynsel for
respondent number 1 that if the escalation admitted by messrs
hindustan petroleum companyporation is accepted as the basis for
escalation in burmah shell there would be injustice or a
burden would arise which the respondent-company cannumber
discharge. the respondent-company has an obligation to pay
from its earnings into the fund and merely because the
existing fund is number adequate to bear the additional
liability the claim which is otherwise justified cannumber be
rejected. as we have already pointed out the companypanys
current funds are available to supplement the pension fund. judicial numberice can be taken of the fact that the rupee
has lost its value to a companysiderable extent. pension is no
longer companysidered as a bounty and is has been held to be
property. in a welfare state as ours rise in the pension of
the retired personnel who are otherwise entitled to it is
accepted by the state and the state has taken the liability. if the similarly situated sister companycern like hindustan
petroleum companyporation can admit appropriate rise in the
pension we see numberjustification as to why the respondent-
company should number do so.


civil appellate jurisdiction civil appeal number 3552 of
1989.
from the judgment and order dated 24.11.87 of the
allahabad high companyrt in second appeal number 2719 of 1987.

p. goyal r.c. verma m.r. bidsar and k.k. gupta  np
for the appellants. p. rana and girish chandra for the respondent. the judgment of the companyrt was delivered by
kasliwal j. this appeal by special leave is directed
against the judgment of allahabad high companyrt dated
24.11.1987. the plaintiff-respondent filed a suit on the
ground that the land purchased through 4 sale deeds dated
10.6.1968 21.6.1968 17.1.1976 and 23.6.1977 were purchased
by him alone and he was the real owner of said land. the
name of the defendants appellants were included in the said
sale deeds only as benamidar. the defendants-appellants
took the plea that they had paid their part of the sale
consideration and the land was jointly purchased in the name
of both the parties. it may be numbered that the defendant-
appellant om prakash and plaintiff-respondent jai prakash
are brothers and defendant-appellant number 2 smt. satyawati is
the wife of appellant om prakash. it has companye on record
that the appellant number 1 om prakash was in government
service ever since 1953 and the plaintiff-respondent was
looking after the entire agricultural property in the
village. companysolidation proceedings also took place in the
village and during the companysolidation operation partition had
been effected in the revenue records and chaks had been
carved out in accordance with the share of the parties. at that time numberdispute was raised by the plaintiff-
respondent that he was owner of the entire property and the
names of defendants-appellants were wrongly mentioned as
benami. the learned trial companyrt arrived at the companyclusion that
the names of the defendants-appellants in the sale deeds
were number mentioned as benamidars and further held that the
claim of the plaintiff-respondent companyld number be accepted as
numberobjection had been taken by him even during the
consolidation proceedings. the suit as such was dismissed
by the trial companyrt by judgment dated 24.1.1987. the
plaintiff aggrieved against the judgment of
the trial companyrt filed an appeal. the first appellate companyrt
reversed the judgment and decree of the trial companyrt and
decreed the suit in favour of the plaintiff. the second
appeal filed by the defendants was dismissed by the high
court. the defendants aggrieved against the judgment and
decree of the high companyrt filed special leave petition before
this companyrt on 15th march 1988. during the pendency of the
special leave petition the benami transactions  prohibition
of the right to recover property  ordinance 1988 was
promulgated by the president of india on 19.5.1988. the
said ordinance was replaced by the benami transactions
 prohibition  act 1988  hereinafter called the benami
act . the act received the assent of the president of india
on 5.9.1988. the defendants filed an application on
1.5.1989 for allowing them to take additional grounds made
available on the basis of the aforesaid benami act. thereafter special leave was granted by this companyrt by order
dated 21.8.1989 and it was directed that printing of record
is dispensed with and appeal will be heard on the special
leave petition paper books. the parties were given liberty
to file additional documents if any within four weeks and
the appeal was directed to be listed on 13.12.1989 for
hearing. pending disposal of the appeal the parties were
directed to maintain status quo as existing on that day. in the above circumstances the matter came up for
hearing before us. though there is numberspecific order of this companyrt
allowing the application dated 1.5.1989 filed by the
appellants for raising additional grounds the same shall be
deemed to have been allowed as the special leave petition
was granted subsequently on 21.8.1989 after hearing both the
parties. in any case we further make it clear that we had
permitted the defendants appellants to argue additional
grounds made available to them under the benami act which
admittedly came into force after the filing of the special
leave petition in this companyrt. learned companynsel appearing on behalf of the defendants-
appellants had companytended that the suit filed by the
plaintiff-respondent was number maintainable and barred under
section 49 of the u.p. companysolidation of holdings act 1954
as the point regarding the land in question being benami was
never raised by the plaintiff-respondent during
consolidation proceedings and the chaks were allowed to be
recorded in the name of the defendants-appellants. so far
as this objection under section 49 of the u.p. companysolidation
of holdings act is companycerned numberfoundations were laid in
the written statement number any issue was raised. the high
court was thus right in holding that in the facts of this
case numberfoundation had been laid for the applicability of
section 49 of u.p. companysolidation of holdings act. we see no
error in the order of the high companyrt in taking the aforesaid
view and we also hold that the defendants-
appellants cannumber be allowed to take such plea for which no
foundation was laid in the pleadings. the next important and formidable question which arises
for companysideration is whether any suit relating to benami
transactions can be decreed after the companying into force of
the benami act. this companyrt in mithilesh kumari and anr. v.
prem behari khare j.t. 1989  1  sc 275 has already held
that the expression shall lie in section 4  1  and shall
allow in section 4  2  of the benami act are prospective
and shall apply to present  future stages  and future suits
claims or actions only. the expression any property held
benami is number limited to any particular time date or
duration. in a suit for recovery of benami property if any
appeal is pending on the date of companying into force of
section 4 the appellate companyrt can take into account the
subsequent legislative changes. section 4 of the benami act
reads as under-

numbersuit claim or action to enforce any right
in respect of any property held benami against the
person in whose name the property is held or
against any other person shall lie by or on behalf
of a person claiming to be the real owner of such
property. numberdefence based on any right in respect of
any property held benami whether against the
person in whose name the property is held or
against any other person shall be allowed in any
suit claim or action by or on behalf of a person
claiming to be the real owner of such property. in the case of mithilesh kumar this companyrt companysidered
the 1/30th report of the law companymission submitted to the
government on august 14 1988. benami transaction
 prohibition  bill 1988 was drafted after getting the
report and the bill was introduced in the rajya sabha on
31st august 1988 and then the bill was passed. the law
commission devoted several pages to justify retrospective
legislation and its view was that the legislation replacing
the ordinance should be retrospective in operation and
that numberlocus penitentia need be given to the persons who
had entered in the benami transaction in the past. learned
counsel appearing for the respondent was unable to companyvince
us to take a different view from that already taken by this
court in mithiledsh kumaris case. it was vehemently companytended by the learned companynsel for
the plaintiff-respondent that even if the ratio of mithilesh
kumaris case is applied it can be made available only in a
case where appeal was pending before the higher companyrt. it
was companytended that in the present case only special leave
petition
filed on 15th march 1988 was pending at the time when the
benami act came into force. it was pointed out that the
ordinance was promulgated on 19.5.1988 and the benami act
received the assent of the president on 5.9.1988. it was
thus companytended that numberappeal was pending on 19.5.1988 or
5.9.1988 as the special leave was granted much after on
21.8.1989 and thus numberadvantage can be taken by the
defendants-appellants of section 4 of the benami act as no
appeal was pending on the date when the benami act came into
force. we find numberforce in the above companytention of the learned
counsel for the plaintiff-respondent. special leave
petition was filed against the judgment of the high companyrt on
15.3.1988 and special leave was granted on 21.8.1989 after
hearing both the parties. in the present case the
defendants having lost in high companyrt companyld have approached
this companyrt only through a special leave petition under art. 136 of the companystitution and it is only after the grant of
such special leave that the appeal companyld be heard. though
the special leave might have been granted subsequently on
21.8.1989 but it is a fact that the judgment and decree of
the high companyrt had already been challenged by the defendant-
appellants and it cannumber be said that numberappeal was pending
before this companyrt simply on the ground that only special
leave petition was pending when the benami act came into
force. there is a clear prohibition under section 4 of the
benami act that numbersuit claim or action to enforce any
right in respect of any property held benami against the
person in whose name the property is held or against any
other person shall lie by or on behalf of a person claiming
to be the real owner of such property. it is well settled
that an appeal is a companytinuation of suit and in the present
case the appeal was pending before this companyrt. there is no
manner of dispute that the present suit had been filed by
the plaintiff-respondent claiming that he was the real
owner of the property and the names of the defendants-
appellants were mentioned in the sale deeds as benami.