civil appellate jurisdiction civil appeal number. 153839
of 1985.
from the judgment and order dated 25.4.1984 of the
bombay high companyrt in first civil appeal number. 37/8 and 38/8
of 1980.

k. mehta for the appellants. jitendra sharma for the respondents. the judgment of the companyrt was delivered by
desai j.a monumberoly successfully avoided its legally
incurred liability on the wholly untenable ground. that is
the scenario in these appeals. oriental fire and general
insurance companypany limited a nationalised companypany having the
monumberoly of general insurance is the fifth respondent in the
first appeal and the second respondent in the second appeal. it would be referred to and insurance companypany hereinafter. an accident occurred on praca de jorge barrete road
margao on may 17 1976 around 10.30 a.m. in which one sita
gomes and her sister-in-law ida menezes were injured. ida
succumbed to her injuries and sita gomes recovered. the
offending vehicle was a pick-up van belonging to m s.
narcinva v. kamat a firm carrying on business at margao
goa. the vehicle was insured with the insurance companypany. two
petitions claiming companypensation came to be filed one by the
heirs of ida and the other by sita. the motor accident
claims tribunal  tribunal for short  held that the driver of
the van was responsible for the accident as the van was
being driven at the relevant time rashly and negligently. the tribunal awarded rs. 75000 as companypensation to the heirs
of ida and rs. 3000 to sita. in the proceedings before the tribunal the insurance
company appeared and companytended that according to the terms
of the companytract of insurance as evidenced by the policy of
insurance the vehicle can be driven either by a driver in
the employment of the insured or with the permission of the
insured by one who holds a valid driving licence. in respect
of this companytention the tribunal framed issue number. 7 and 8 in
both the petitions in the following terms

whether the respondent number 6  insurance
company  proves that there is numberliability on them as
the respondent number 2 narcinva kamat who was driving the
vehicle involved in the accident was number holding any
effective driving licence ? whether the respondent number 6 proves that under
the provisions of sec. 95 of the motor vehicles act and
the policy in force their liability in any event is
limited to the extent of rs. 50000 in all both in
respect of this claim petition as well as other claim
petition filed in the same tribunal on account of the
same accident being claim petition number. 22-23/76 filed
in the tribunal on account of the same accident. the tribunal answered both the issues in favour of the
insurance companypany observing that at the time of the accident
the vehicle was being driven by appellant number 2 the
partner of the firm which was the owner of the vehicle and
as the driver did number produce his driving licence it must
be held that the driver did number have a valid driving
licence. the tribunal therefore companycluded that in the
absence of a valid driving licence there was a breach of
the companytract of insurance and the insurance companypany was
absolved from the liability under the policy of insurance. the firm and its partner preferred two appeals before
the panaji bench  goa  of the high companyrt of bombay.a
division bench of the high companyrt agreed with the findings of
the tribunal and dismissed the appeals. hence these appeals
by special leave. the scope of the appeals is very limited. the
appeals are by the firm owner of the vehicle which was
involved in the accident and one of its partner who it was
alleged was shown to be driving the vehicle at the time of
the accident and while granting leave it was limited to the
question whether both the tribunal and the high companyrt were
justified in holding that the insurance companypany was number
liable to satisfy the award under the companytracts of
insurance. the undisputed facts are that the pick-up van-motor
vehicle bearing number gdt-9510 belongs to the first appellant-
firm and
the second appellant is the partner of the firm. this
vehicle was involved in an accident that occurred on may 17
1976 at around 10.30 a.m. there is a companycurrent finding that
the vehicle was driven rashly and negligently by the partner
who was then driving the vehicle and that in this accident
sita and ida suffered injuries. idas injuries proved fatal. the amount of the companypensation awarded in both the petitions
is numbermore open to dispute. the question is whether the
insurance companypany under the companytract of insurance is liable
to satisfy the award ? before the tribunal and the high companyrt it was
contended on behalf of the appellants that at the relevant
time it was number appellant number 2 but one pandu lotlikar who
was respondent number 4 before the tribunal was driving the
vehicle. it has been companycurrently found that it was
appellant number 2 who was driving the vehicle. the companycurrent
finding must be accepted as companyrect. appellant number 2 is numbere other than the partner of the
first appellant-firm which is the owner of the vehicle. the
high companyrt has extracted a term in the schedule of the
policy of insurance pertaining to the pick-up van which may
be reproduced from the judgment of the high companyrt. driver any of the following
 a   deleted in type
 b  any other person provided he is in the insureds
employ and is driving on his order or with his
permission. provided that the person driving holds a licence
to drive the motor vehicle or has held and is number
disqualified for holding or obtaining such a licence. we have reproduced this term from the judgment of the
high companyrt because the learned companynsel for the insurance
company did number have a companyy of the policy of the insurance
number the one was shown from the record. of companyrse the
tribunal records that the vehicle was insured as a private
carrier and this was culled out from the claim form
submitted on october 141976. it is produced at ext. 37. one
jaimo albert was examined on
behalf of the insurance companypany. he was shown ext. 29 which
was identified as a companyy of the policy of insurance issued
by the insurance companypany in favour of the first appellant. he admitted that it was a companyprehensive policy meaning
thereby that the insurance companypany would be liable to
satisfy the claim of damage arising out of the use of the
vehicle. he does number speak of any other term of the companytract
of insurance. number would the insurance companypany be discharged from the
liability under the companytract of insurance if as companytended by
it at the relevant time appellant number 2 was driving the
vehicle. appellant number 2 is the partners of the firm. all
the partners of the firm if they have a valid driving
licence would be entitled to drive the vehicle. each partner
of the firm is an agent of the firm as well as the other
partner as provided by sec. 18 of the partnership act. every
partner is entitled to attend diligently to his duties in
the companyduct of the business as provided in sec. 12 of the
partnership act. sec. 26 provides that where by the wrongful
act or omission of a partner acting in the ordinary companyrse
of the business of a firm or with the authority of his
partners loss or injury is caused to any third party or
any penalty is incurred the firm is liable therefor to the
same extent as the partner. a companyspectus of these provisions shall show that where
the pick-up van belonging to the firm is being driven by a
partner it can be said that it is done with the permission
of the owner namely the firm or with its implied authority. the next question is whether the partner had a valid
driving licence at the relevant time. unfortunately while
dealing with this aspect of the case both the tribunal and
the high companyrt fell into an error which resulted in giving a
clean chit to the insurance companypany. it is admitted that
this pick-up van companyld be used as a private carrier. it is
also admitted that the insurance companypany had issued a
comprehensive insurance policy in respect of this van and at
the relevant time it was in force. it is companytended on behalf of the insurance companypany that
the second appellant did number have a valid driving licence. it is the insurance companypany which companyplains that there has
been a breach of one of the important terms of the companytract
of insurance as evidenced by the policy of insurance  the
whole of which was
number shown to us  and that the second appellant who was shown
to be driving the vehicle at the relevant time did number have
a valid driving licence to drive the pick-up van. the
insurance companypany companyplains of breach of a term of companytract
which would permit it to disown its liability under the
contract of insurance. if a breach of a term of companytract
permits a party to the companytract to number to perform the
contract the burden is squarely on that party which
complains of breach to prove that the breach has been
committed by the other party to the companytract. the test in
such a situation would be who would fail if numberevidence is
led. the language and the format in which issues number. 7 and
8 have been cast by the tribunal clearly casts the burden of
proof on the insurance companypany. number an iota of evidence has
been led by the insurance companypany to show that the second
appellant did number have a valid driving licence to drive the
vehicle. mr. j. sharma learned companynsel who appeared for the
appellant urged that a question was asked in the cross-
examination of the second appellant whether he would produce
his driving licence and that as he failed to produce the
same an adverse inference must be drawn against him that he
did number have a valid driving licence. the high companyrt has
recorded a finding in this behalf which may first be
extracted in its own words
mr. cardosos companytention proceeds on a misreading
of clause  b  indented above which brings to the
forefront that the person driving the vehicle must be
in the insurers employ and further being in such
employment was driving the vehicle on the order of the
insurer or with his permission. in this case the very
first premise is missing for the simple reason it is
number even the second p appellants case that he was
every in the employment of the first appellant firm but
was at all material times a partner thereof. even if
the first appellant held a valid driving licence
clause  b  would number absolve him from liability for
payment if the van had been driven by him at the
relevant time. the high companyrt took numbernumberice of the fact that the van
belonged to the firm and every partner for that reason would
be the owner of the property of the firm because the firm is
number a legal entity in the sense in which the companypany under
the company-
panies act has a juristic personality. firm is a companypendious
name for the partners. and the high companyrt limited its
enquiry to ascertain whether the first part of the companydition
is satisfied viz. whether the driver was in the employ of
the insurer. it companypletely overlooked the second clause that
the driver appellant number 2 was driving with the permission
of the insured the firm in this case. two clauses are
disjointed by a disjunctives or. on a proper analysis and
interpretation of the term of companytract of insurance the
insurance companypany cannumber escape the liability if  a  the
insured himself was driving the vehicle or  b  the driver is
in the employment of the insurer and is driving on the order
of the insurer or  c  he is driving with his permission. the
words with his permission does number qualify the expression
is in the insurers employ. the clause can be properly
read thus any other person with insurers permission. this ought to be so because a friend can always be permitted
if he has a valid driving licence to drive a friends car. if in every such situation where the person driving the
vehicle is number shown to be the insurer himself or someone in
his employment the companytract of insurance would afford no
protection and the insurance companypany having companylected the
premium would wriggle out of a loophole. therefore the
proper companystruction of this companydition must be to read it as
stated hereinbefore. approaching the matter from this angle if appellant
number 2 was driving the vehicle belonging to the firm it can
be said to be by the insurer itself or with its permission. the last question is whether he had a valid driving
licence. the high companyrt has number recorded a clear cut finding
on this point. the finding of the tribunal is more evasive
then the one by the high companyrt. mr. sharma did number dispute
that the second appellant had driving licence. his grievance
is that he having failed to produce the same when called
upon to do so in the cross examination an adverse inference
be drawn against him that he did number have a valid licence to
drive a pick-up van. the submission fails to carry
conviction with us. the burden to prove that there was
breach of the companytract of insurance was squarely placed on
the shoulders of the insurance companypany. it companyld number be said
to have been discharged by it by a mere question in cross-
examination. the second appellant was under numberobligation to
furnish evidence so as to enable the insurance companypany to
wriggle out its
liability under the companytract of insurance. further the r.t.
which issues the driving licence keeps a record of the
licences issued and renewed by it. the insurance companypany
could have got the evidence produced to substantiate his
allegation. applying the test who would fail if numberevidence
is led the obvious answer the insurance companypany. to some up of insurance companypany failed to prove that
there was a breach of the term of the companytract of insurance
as evidenced by the policy of insurance on the ground that
the driver who was driving the vehicle at the relevant time
did number have a valid driving licence. once the insurance
company failed to prove that aspect its liability under the
contract of insurance remains intact and unhampered and it
was bound to satisfy the award under the companyprehensive
policy of insurance.


civil appellate jurisdiction civil appeal number 1098 of
1969.
appeal by certificate from the judgment and order dated
march 15 1966 of the bombay high companyrt in special civil
application number 1067 of 1964.

c. bhandare and s. p. nayar for the appellant. p. kapur for respondent number 2-1
the judgment of the companyrt was delivered by
vaidialingam j.-this appeal on certificate by the state
of maharashtra is directed against the judgment and order of
the bombay high companyrt dated march 15 1967 special civil
application number 1067 of 1964 quashing the order of the
state government dated january 18 1964 making a reference
to the industrial tribunal. at the outset it must be stated that the workmen who filed
the writ petition in the high companyrt and got an order in
their favour have
number appeared before us to support the order of the high
court. on behalf of the management which was a party
before the tribunal and before the high companyrt it has been
represented that it is numberlonger. interested in these
proceedings. it is necessary to state a few facts leading upto the filing
of the writ petition in the high companyrt. on december 19
1962 the state. government referred certain disputes for
adjudication to the industrial tribunal the matters in
disputes included various items but it is only necessary to
refer to dispute number 3 which related to the production
bonus. that dispute relating to production bonus in part i
for daily rated workmen was as follows

production bonus. the present incentive scheme should be
revised as under

the scheme should be made applicable to
all the departments of the companypany. when the production in the establishment
reaches 500 tons in a month all the daily
rated workers should get 10 per cent of their
total earnings as production bonus. the
number of workmen being the average number
employed in the year 1960.

for every 10 tons increase in a months
production above 500 tons a 2 increase in the
percentage should be given over and. above
that in clause  b  above. the existing by laws and clauses
regarding the absenteeism etc. should be
abolished. bonus should be determined by the ratio
of days filled in by a worker to the number of
working days in a month. the above benefits should be paid with
retrospective effect from 1st july 1961.
in part 11. for monthly rated employees the
dispute regarding production bonus was as
follows

production bonus. monthly rated employees companynected
directly with production should be paid
production bonus at the same rate paid to
daily rated workmen. 50 of the average production bonus
paid to the employees directly companynected with
production should be paid as productions
bonus to all other monthly rated employees. production bonus for all monthly rated
employees should be paid with retrospective
effect from 1st july 1961.
when the adjudication on that reference was pending the
state government on january 18 1964. made anumberher reference
to the same tribunal as follows
should the existing incentive scheme of production bonus be
replaced by the new incentive scheme evolved
by messrs. ibcon private limited in their report dated
october 1963 as desired by the management ? in this order of reference it was stated that a previous
reference had already been made on december 10 1962
regarding the revision of production bonus scheme for the
workmen of the companypany. it is further stated that the
company made a representation companythe state government that
the terms of reference already made should be supplemented
so as to include the above question also. the state. government has also stated in the said order that it is of
the opinion that the matter on which a further reference is
asked for by the employer is companynected with or relevant to
the said dispute. the reference to the said dispute is
regarding the revision of production bonus which was already
the subject of the reference dated december 19 1962.
the tribunal appears to have passed an award on february 27
1964 on all the disputes companyprised in the 1st reference
excepting demand number 3 which as we have already stated
relates to the revision of the existing production bonus
scheme. the union filed an application before the tribunal
stating that the second reference dated january 18 1964
should number be adjudicated upon. this objection was raised
on the ground that the order dated january 18 1964 really
amounts to the withdrawal of the previous reference made on
december 19 1962 and that it interferes with the exercise of
the powers of the tribunal in the matter of adjudicating
dispute number 3 already referred to it the management opposed
this application on the ground that the order dated january
18 1964 does number have the effect of withdrawing the
previous reference and that on the other hand the dispute
that was referred by order of 1964 was really one companynected
with or relevant to the dispute which was already pending
adjudication before the tribunal. the tribunal overruled the preliminary objection of the
workmen about the companypetency of the reference made on
january 18 1964 and it resulted in the latter approaching
the high companyrt under article 226. the high companyrt in its
present order. accepting the companytentions of the union has
held that the second order. dated january 18 1964 had
really the effect of superseding- the previous reference
made on december 19 1962 and also of interfering with the
powers exercised by the tribunal in respect of the previous
reference. mr. bhandare learned companynsel for the appellant-state has
contended that the reasoning of the high companyrt that the
second order of reference amounts to a withdrawal of the
previous order dated december 19 1962 is fallacious. he
has further pointed out that the subject matter of the
reference dated january 18 1964 companyld have been included
in the order of december 19 1962 and then it would have
been perfectly companypetent for the tribunal to companysider the
nature of the modification that is to be effected in respect
of the production scheme then existing in the companypany. for
that purpose the tribunal companyld have companysidered the nature
of the modifications required by the workmen as well as the
further question whether the incentive me evolved by the
ibcon private limited companyld be adopted. mr. bhandare
also pointed out that the question companyered by the second
reference is really a matter which companynected with or
relevant to the dispute already pending before the
tribunal. we are of the opinion that the companytentions of mr. bhandare
have to be accepted. we are number able to appreciate the
reasoning of the learned judges that the order dated
january- 18 1964 has the effect of withdrawing or
superseding the reference already made on december 19 1962.
there will be withdrawal of a reference when the dispute
referred is taken out of the purview of the tribunal. there
will be supersession of a previous reference when the
second reference companyprises matters or disputes totally
unconnected with or different from the disputes originally
referred. neither is the case here. on the other hand in
our opinion the question regarding the nature of the
modification to be effected to the production bonus scheme
has to be companysidered by the tribunal having due regard to
the scheme as it exists as well as to the various
suggestions that may be made by the parties namely the
employer and the employee. if the employer had relied on
the scheme evolved by m s ibcon private limited it was
certainly companypetent for the tribunal to companysider how far
that scheme companyld be adopted in this particular case. this
aspect companyld have been companysidered by the tribunal because
it is companynected with or relevant to the dispute number 3
relating to production bonus. we are number inclined to accept the view of the high companyrt
that the reference dated january 18 1964 in any manner
interferes with the powers of the tribunal in adjudicating
upon the demand number 3 companyered by-the reference dated
december 19 1962. in fact in our view the question that
has been further referred by order dated january 18 1964
is really a matter companynected with or relevant to dispute number
3 already pending adjudication before the tribunal. the
tribunal had full jurisdiction when dealing with demand number
3 companyered by the order dated december 19 1962 to companysider
the report mentioned in the subsequent reference dated
january 18 1964. it had full power to companysider as to in
what manner and to what extent the modification is to be
effected in the incentive scheme obtaining in the companypany. in fact. even without the second reference the tribunal
when dealing with demand number 3 of the 1st reference companyld
have also companysidered the question of adopting the scheme
evolved by ibcon private limited because it was a relevant
matter and also companynected with the production bonus scheme. when lit was so open to the tribunal to companysider the scheme
of ibcon the fact that the government specifically referred
for companysideration the said scheme makes numberdifference. at
any rate the question companyered by the 2nd reference was a
matter companynected with or relevant to dispute number 3 of the
1st reference and hence the state was well within its
jurisdiction under section 10 1   d  of the industrial
disputes act in passing the order dated january 18 1964.
the high companyrt has referred to various decisions regarding
the powers of the government when making a reference
which in our opinion it is number necessary to companysider in
the view that we take regarding the nature of the reference
dated january 18 1964.
in the result the judgment and order of the high companyrt are
set aside. the tribunal will proceed to adjudicate on the
question pending before it regarding the revision of the
existing production bonus scheme.


original jurisdiction writ petitions 1 7 8 10 53 and 76
of 1963.
petitions under art 32 of the companystitution of india for the
enforcement of fundamental rights. v. s. mani and k. r. shama for the petitioner  in w.p. number. 1 and 76 of 1963 . v. s. mani and t. r. y. sastri for the petitioner  in

p. number. 7 8 10 and 53 . v. ranganadham chetty and a. y. rangam for the respondent
 in the petitions . n. shroff for the interveners number. 1 and 5  in all the
petitions . c. setalvad n. s. bindra and r. h. dhebar for inter-
vener number 2  in w.p. number 1 of 1.963 . p. lal for intervener number 3  in w.p. number 1 of 1963 . h. dhebar for intervener number 4  in w.p. number 1 of
1963 . v. gupte additional solicitor-general n. s. bindra
and r. h. dhebar for intervener number 6  in w.p. number 1 of
1963 . march 9 1964. the judgment of the companyrt was delivered by
wanchoo j.-these six petitions under art. 32 of
constitution raise a companymon question about the companystitution-
ality of the madras land reforms  fixation of ceiling on
land act number 58 of 1961  hereinafter referred to as the
act  which was assented to by the president on april 13
1962 and came into force on publication in the fort st.
george gazette on may 2 1962. the companystitutionality of the
act is attacked on the ground that it violates arts. 14 19
and 31 2  of the companystitution. it is number necessary to set
out in full the attack made on the companystitutionality of the
act in these petitions. it will be enumbergh if we indicate
the two main attacks on the companystitutionality of the act
under art. 14. the first of these is with respect to s. 5
of the act which lays down the ceiling area. the second is
on s. 50 of the act read with sch. iii thereof which
provides for companypensation. it is urged that the act is number
protected under art. 31-a of the companystitution and is
therefore open to attack in case it violates art. 14 19 or

the petitioners in this companynection rely on the judgment
of this companyrt in karimbil kunhikoman v. state of kerala 1 . before we companysider the two main attacks on the companystitu-
tionality of the act we may briefly indicate the scheme of
the act. chapter 1 is preliminary section 3 thereof
provides for various definitions some of which we shall
refer to later. chapter 11 deals with fixation of ceiling
on land holdings. section 5 thereof fixes the ceiling area. the other sections provide for determining surplus land and
s.18 provides for the acquisition of surplus land which
vests in the government free from all encumbrances. chapter
iii provides for ceiling on future acquisition and
restriction on certain transfers. chapter iv provides for
the companystitution and functions of the land board. chapter v
provides for the companystitution and functions of the sugar
factory board. chapter vi provides for companypensation. section 50 thereof read with sch. iii lays down the mode
for determining companypensation for the land acquired by the
government and other ancillary matters. chapter vii
provides for survey and settlement of lands in the
transferred territory which came to the state of madras by
virtue of the states reorganisation act of 1956. chapter
viii provides for cultivating tenants ceiling area. chapter ix provides for exemption of certain lands from the
application of the act. chapter x provides for land
tribunals and chapter xi for appeals and revision. chapter
xii provides for certain penalties and procedure while
chapter xiii provides for disposal of land acquired by the
government under the act. chapter xiv deals with
miscellaneous provisions including s.110 which provides
for the framing of rules
 1  1962 suppl. 1 s.c.r. 829.
the main purpose of the act is to provide for a ceiling on
land holdings for determining surplus land which would be
acquired by government and for payment of companypensation
therefor. the act is applicable to agricultural land as
defined in s. 3 22  and is mainly companycerned with persons
holding lands in ryotwari settlement or in any other way
subject to payment of revenue direct to the government. it
is number in dispute that the act is number protected under art. 31-a of the companystitution and it is in this background that
we shall companysider the attack based on art. 14 on the two
main provisions of the act relating to ceiling area under s.
5 and companypensation under s. 50 read with sch. iii of the
act. it is first necessary to read certain definitions in s 3.
section 3 14  defines family as follows--
family in relation to a person means the
person the wife or husband as the case may
be of such person and his or her-

minumber sons and unmarried daughters and

minumber grandsons and unmarried grand
daughters in the male line whose father and
mother are dead. it is unnecessary to refer to the explanation
of s. 3 14  for present purposes. section 3
 34  is in these terms -
person includes any trust companypany family
firm society or association of individuals
whether incorporated or number. section 3  45  is as follows -
surplus land means the land held by a
person in excess of the ceiling area and
declared to be surplus land under sections 12
13 or 14.
section 5 is in these terms -
5.  1  - a  subject to the provisions of
chapter viii the ceiling area in the case of
every person and subject to the provisions of
sub-sections  4  and  5  and of chapter viii
the ceiling- area in the case of every family
consisting of number more than five members
shall be 30 standard acres

the ceiling area in the case of every
family companysisting of more than five members
shall subject to the provisions of sub-
sections  4  and  5  and of chapter viii be
30 standard acres together with an additional
5 standard acres for every member of the
family in excess of five. for the purposes of this section all
the lands held individually by the members of
a family or jointly by some or all of the
members of such family shall be deemed to be
held by the family.  3   a  in calculating the extent of land
held by a member of a family or by an
individual person the share of the member of
the family or of the individual person in the
land held by an undivided hindu family a
marumakkattayam tarwad an aliyasanthana
family or a nambudiri illom shall be taken
into account. in calculating the extent of land held
by a family or by an individual person the
share of the family or of the individual
person in the land held by a firm society or
association of individuals  whether
incorporated or number  or by a companypany  other
than a number-agricultural companypany  shall be
taken into account. explanation-for the purposes of this section-
 a  the share of a member of a family or of
an individual person in the land held by an
undivided hindu family a marumakkattayam
tarwad an aliyasanathana family or a
nambudiri illom and
 b  the share of a family or of an
individual person in the land held by
a firm
society or association of individuals  whether
incorporated or number  or by a companypany  other
than a number-agricultural companypany
shall be deemed to be the extent of land-

which in case such share is held on the
date of the companymencement of this act would
have been allotted to such member person or
family had such land been partitioned or
divided as the case may be on such date or

which in case such share is acquired in
any manner whatsoever after the date of the
commencement of this act would be allotted to
such member person or family if a partition
or division were to take place on the date of
the preparation of the draft statement under
sub-section  1  of section 10.  4
it is unnecessary to companysider the rest of s. 5 for present
purposes. the attack on s. 5  1  is that it is hit by art. 14 inasmuch
as it denies equality before the law or equal protection of
law to persons similarly situate and reliance is placed in
this companynection on the decision of this companyrt in karimbil
kunhikoman 1 . in that case this companyrt was companysidering the
kerala agrarian relations act 1961  hereinafter referred to
as the
1962 suppl. 1 s.c.r. 829.
kerala act . the argument is that as in the kerala act so
in the present act the word family has been given an
artificial definition which does number companyform to any kind of
natural families prevalent in the state namely hindu
undivided family marumakkattayam family aliyasanathana
family or nambudiri illom and that a double standard has
been fixed in s. 5 1  in the matter of providing ceiling. it is therefore urged that the ratio of that decision fully
applies to the present act. therefore s. 5 1  should be
struck down as violative of art. 14 in the same manner as s.
58 of the kerala act was struck down. we are of opinion that this companytention is companyrect and the
ratio of that case applies with full force to the present
case. it was observed in that case that where the ceiling
is fixed  by a double standard and over and above
that the family has been given an artificial definition
which does number companyrespond with a natural family as knumbern to
personal law there is bound to be discrimination resulting
from such a provision. in the present case also family
has been given an artificial definition as will immediately
be clear on reading. 3 14  which we have set out above. it
is true that this definition of family in s. 3 14  is number
exactly the same as in the kerala act. even so there can be
numberdoubt that the definition of the word family in the
present case is equally artificial. further in the kerala
act s. 58 fixed a double standard for the purpose of
ceiling in the present case s. 5 1  a  fixes a double
standard though there is this distinction that in s. 5 1
the same ceiling is fixed in the case of a person as in the
case of a family companysisting of number more than five members
namely 30 standard acres while in the kerala act the
ceiling fixed for a family of number more than five was double
that for an adult unmarried person. but that in our opinion
makes numberdifference in substance. the provision of s. 5 1
results in discrimination between persons equally
circumstanced and is thus violate of art. 14 of the
constitution. this will be clear from a simple example of
an undivided hindu family which we may give. take the case
of a joint hindu family companysisting of a father two major
sons and two minumber sons and assume that the mother is dead. assume further that this natural family has 300 standard
acres of land. clearly according to the personal law if
there is a division in the family the father and each of
the four sons will get 60 standard acres per head. number
apply s. 5 1  to this family. the two major sons being number
members of the family because of the artificial definition
given to family in s. 3 14  of the act will be entitled to
30 standard acres each as individuals and the rest of their
holdings i.e. 30 standard acres in the case of each will be
surplus land. but the father and the two minumber sons being
an artificial family as defined in s. 3 14  will be entitled
to 30
standard acres between them and will thus lose 150 standard
acres which will become surplus land. this shows clearly
how this double standard in the matter of ceiling read with
the artificial definition of family will result in
complete discrimination between these five members of a
natural family. under the hindu law each member would be
entitled to onefifth share in the 300 standard acres
belonging to the family. under the act however the two
major sons will keep 30 standard acres each while the father
and the two minumber sons together will keep 30 standard acres
which work out to 10 standard acres each. the two major
sons will thus lose 30 standard acres each while the father
and the two minumber sons will lose fifty standard acres each. numberjustification has been shown on behalf of the state for
such discriminatory treatment resulting in the case of
members of a joint hindu family number .ire we able to
understand why this discrimination which clearly results
from the application of s. 5  1  of the act is number violative
of art. 14 of the companystitution. examples can be multiplied
with reference to joint hindu families which would show that
discrimination will result on the application of this
provision. similarly we are of opinion that discrimination
will result in the case of marumakkattayam family
aliyasanthana family and a nambudiri illom particularly in
the case of the former two where the husband and wife do number
belong to the same family. we are clearly of opinion that
as in the case of s. 58 of the kerala act so in the case of
s. 5  1  of the act discrimination is writ large on the
consequences that follow from s. 5 1 . we therefore hold
that s. 5 1  is violative of the fundamental right enshrined
in art. 14 of the companystitution. as the section is the basis
of chapter 11 of the act the whole chapter must fall along
with it. next we companye to the provisions as to companypensation companytained
in s. 50 read with sch. iii of the act. here again we are
of opinion that the decision of this companyrt in karimbil
kunhikomans 1  case fully applies to the scheme of
compensation provided in the act which is as discriminatory
as was the scheme in the kerala act. learned companynsel for
the respondent however companytends that sch. iii does number
provide for any cut in the purchase price as was the case in
the kerala act and therefore the provisions in the act are
number discriminatory. if we look at the substance of the
matter however we find that there is really numberdifference
between the provisions for companypensation in the kerala act
and the provisions in respect thereof in the act though the
provisions in the act are differently worded. what was done
in the kerala act was to arrive at the figure of
compensation on certain principles and a cut was then
imposed on the figure thus arrived at and this cut pro-
gressively increased by slabs of rs. 15000. in the present
1962 suppl. 1 s.c.r. 829.
case  a companyverse method has been adopted and the provision
is that first the net annual income is arrived at and
thereafter companypensation is provided for slabs of rs. 5000
each of net income. for the first slab of rs. 5000 the
compensation is 12 times the net annual income for the
second slab of rs. 5000 it is ii times for the third slab
of rs. 5000 it is -ten times and thereafter it is nine
times. let us number work out this slab system. take four cases where
the net annual income is respectively rs. 5000 rs.10000
rs. 15000 and rs. 20000. the firstperson whose net
annual income is rs. 5000 will get rs.60000 as
compensation the second person whose net annualincome is
rs. 10000 will -et rs. 115000 the third personwith
a net annual income of rs. 15000 will get rs. 165000 and
the person with a net annual income of rs. 20000 will -et
rs. 210000. if the same multiplier had been applied as in
the case of the first slab of rs. 5000 to the other three
slabs also these persons would have got companypensation of rs. 120000 rs. 180000 and rs. 240000. this will show
that in effect there is a cut of about 4 per cent on the
total companypensation which companyresponds to the purchase price
in the kerala act in the case of a person with a net annual
income of rs. 10000 of about 8 per cent in the case of a
person with a net annual income of rs. 15000 and about 12
per cent in the case of a person with a net annual income of
rs. 20000. though the manner of arriving at the total company-
pensation is ostensibly different from that provided in the
kerala act its effect is the same namely as the total net
income goes up after the first slab of rs. 5000 there is a
progressive cut in the total companypensation just as was the
case in the kerala act. the argument that the cut is
justified on the same basis as higher rates of income-tax on
higher slabs of income has already been rejected by this
court in karimbil kunhikomans case 1 . therefore for the
reasons given in that case we are of opinion that the
provisions companytained in s. 50 read with sch. iii of the act
with respect to companypensation are discriminatory and violate
art. 14 of the companystitution. sections 5 and 50 are the pivotal provisions of the act and
if they fall then we are of opinion that the whole act must
be struck down as unconstitutional.


civil appellate jurisdiction civil appeal number 303 of
1976.
appeal by special leave from the judgment and order
dated the 30th october 1974 of the rajasthan high companyrt in

b. civil special appeal number 247 of 1974.

s. chitale mrs. sadhana ramachandran parveen kumar
for the appellant. badri das sharma for the respondents number. 1 2.
the judgment of the companyrt was delivered by
balakrishna eradi j. this appeal by special leave
arises out of a writ petition filed by the appellant herein
in the high companyrt of rajasthan challenging the legality of
the action of the rajasthan public service companymission in
issuing of the appellant the companymunication-annexure iv-dated
july 21 1973 stating that the
appellant was number eligible for being companysidered for
recruitment to the post of lecturer in forensic medicine in
the government medical companyleges in the state since he lacked
the necessary academic qualifications specified in the
advertisement and that companysequently the application of the
appellant stood rejected. there were also other incidental
prayers in the writ petition for the issuance of an
appropriate writ or direction to the public service
commission to refrain from finalising the selection without
considering the case of the appellant and for a direction
being issued to the state government of rajasthan number to
accept the recommendations of the public service companymission
in making appointments to the post of lecturer in forensic
medicine to medical companyleges in rajasthan in case the
appellant was number called for interview along with the other
candidates. a learned single judge of the high companyrt allowed the
writ petition holding that the public service companymission had
acted illegally in treating the appellant as number possessing
the requisite academic qualifications and in rejecting his
candidature for the post of lecturer in forensic medicine on
the said ground. the state of rajasthan and the rajasthan
public service companymission carried the matter in appeal
before a division bench of the high companyrt. that appeal was
allowed by a division bench by its judgment dated october
30 1974 whereby the order passed by the learned single
judge was set aside and the writ petition filed by the
appellant was dismissed. aggrieved by the said decision the
appellant has preferred this appeal after obtaining special
leave from this companyrt. the appellant secured the m.b.b.s. degree from the
university of rajasthan in the year 1954 and after
undergoing houseman-ship for one year he was substantively
appointed as civil assistant surgeon in the rajasthan state
medical service with effect from may 26 1956. in 1962 the
rajasthan medical service was bifurcated into two branches
namely  1  the rajasthan medical service and  2  the
rajasthan medical service  companylegiate branch . separate
service rules knumbern as the rajasthan medical service
 companylegiate branch  rules 1962  hereinafter called the
rules  were framed for the companylegiate branch and all
appointments of teaching staff in the government medical
colleges in rajasthan were thereafter governed by the said
rules. under the provisions of the rules the post of
lecturer is to be filled up only by direct recruitment. it
is laid down in chapter iv of the rules which prescribes the
procedure for direct recruitment that the appointments are
to be
made on the basis of selection by the state public service
commission. rule 12 lays down that the candidate for direct
recruitment to the post specified in parts a b and c of the
schedule shall possess such academic and technical
qualifications and experience as is laid down from time to
time by the rajasthan university for the teaching staff in
medical companyleges. the post of lecturers is included in part
c of the schedule to the rules. hence for ascertaining the
qualifications required for the post of lecturer under the
rules one has to refer to the rules relating to technical
qualifications and experience laid down by the rajasthan
university for the teaching staff in medical companyleges. clause  vii  of ordinance number 65 occurring in chapter
xx of the handbook of the university of rajasthan part ii
vol. i is the relevant provision wherein the university of
rajasthan has prescribed the academic and technical
qualifications and experience required for eligibility for
appointment as teachers in medical companyleges. that clause is
in the following terms

all teachers must possess a basic university
or equivalent qualification entered in schedules to the
indian medical companyncil act 1956 except in the number-
clinical departments of antomy physiology
biochemistry pharmacology microbiology where number-
medical teachers to the extent of 30 of the total
posts of the department may be appointed to posts other
than that of the director or head of the department
who must necessarily hold a recognised medical
qualification. medical men must be registered under the state
central medical registration act and number-medical
persons must be recognised as teachers with the
university before appointments are made permanent. all the teachers in medical companyleges except
registrars and demonstrators must possess the requisite
post-graduate qualification in their respective
subjects. 4. 50 of the time spent in recognised research
under the indian companyncil of medical research or a
university or a medical companylege after obtaining the
requisite post-graduate qualification be companynted
towards teaching experience for the post of lecturer in
the same or in allied subject
provided that 50 of the teaching experience shall be
the regular teaching experience. equivalent qualification referred to above and
in the recommendations below shall be determined by the
university of rajasthan. in case of specialities under medicine and
surgery the qualifications and experience should also
be as scheduled below but in case the post has been
advertised and suitable candidates are number available
the qualifications can be reladed. this is followed by a tabular statement headed
requirements of special academic qualifications and
teaching experience. companyumn 1 of this table deals with
the posts companyumn 2 lays down the academic
qualifications and companyumn 3 is about teaching
experience. the table has a number of sub-headings
according to the various specialities. the speciality
of forensic medicine is given at page 168 of the
handbook  1971 edition . the relevant provision
regarding lecturer in forensic medicine is as
follows

assistant m.d.  path.  two years
professor m.d.  forensic of medico-
lecturer medicine  legal work. speciality board of
pathology  usa

d. m.r.c.p./

r.c.p.  with
diploma d.f.m.  r.c.p.  with
forensic medicine as
special subject
or equivalent
qualification or
post-graduate
degree or equivalent
qualification in
medicine or surgery. on march 3 1972 the rajasthan public service
commission  for short the companymission  issued advertisements
inviting appli-
cations for the recruitment of two lecturers in forensic
medicine for medical companyleges medical public health
department in accordance with the rules. the appellant had by then obtained the m.d. degree in
forensic medicine from the university of bihar muzaffarpur
in 1970 and had been functioning as lecturer in forensic
medicine in one of the government medical companyleges in
rajasthan on a temporary and ad hoc basis from december 31
1970 on wards. in response to the aforesaid advertisement published by
the companymission the appellant applied for appointment to one
of the two posts. however by the impugned letter  annexure
iv  dated july 21 1973 issued by the secretary of the
commission the appellant was informed that his application
for the post of lecturer in forensic medicine was rejected
since he did number possess the necessary academic
qualification. a representation made by the appellant to the
public service companymission for reconsideration of the matter
did number meet with any favourable response and hence the
appellant approached the high companyrt by filing the writ
petition under article 226 of the companystitution out of which
this appeal has arisen. during the pendency of the writ
petition the companymission companyducted the interview of the
remaining candidates and selected respondents number. 3 and 4
for appointment to the two posts and on the basis of the
said selection the state government appointed respondents 3
and 4 as lecturers. the appellant thereupon amended the writ
petition by incorporating a further prayer that the high
court should issue an appropriate writ or direction
cancelling the interview and selection companyducted by the
commission as well as the companysequential appointments given
by the state government to respondents 3 and 4 as lecturers
in forensic medicine. the short point to be companysidered is whether the
commission was right in law in excluding the appellant from
consideration on the ground that he did number possess the
academic qualification prescribed by clause  vii  of
ordinance number 65 of the rajasthan university ordinances for
the post of lecturer in forensic medicine. the qualifications prescribed for the said post by
clause  vii  of ordinance number 65 are

a basic university  degree ?  or equivalent
qualification entered in schedules to the indian
medical companyncil act 1956.

registration under the state central medical
registration act. post-graduate qualification in the companycerned
subject. two years experience of medico-legal work. the appellant is admittedly the holder of the basic
degree of m.b.b.s. from the rajasthan university which is a
qualification entered in the first schedule to the indian
medical companyncil act. it is also number in dispute that he is
duly registered under the medical registration act. the sole
ground on which the appellant was treated by the companymission
as ineligible for companysideration was that the post-graduate
degree in forensic medicine possessed by the appellant is
number one awarded by the university of rajasthan and the said
degree has also number been recognised by the university of
rajasthan as an equivalent qualification. the university of bihar at muzaffarpur is one duly
established by statute and it is fully companypetent to companyduct
examinations and award degrees. the degree of doctor of
medicine  forensic medicine -m.d.  forensic medicine -of the
university of bihar is included in the schedule to the
indian medical companyncil act 1956 as a degree fully
recognised by the indian medical companyncil which is the
paramount professional body set up by statute with authority
to recognise the medical qualifications granted by any
university or medical institution in india. a post-graduate
medical degree granted by a university duly established by
statute in this companyntry and which has also been recognised
by the indian medical companyncil by inclusion to the schedule
of the medical companyncil act has ipso facto to be regarded
accepted and treated as valid throughout our companyntry. in the
absence of any express provision to the companytrary such a
degree does number require to be specifically recognised by
other universities in any state in india before it can be
accepted as a valid qualification for the purpose of
appointment to any post in such a state. the division bench
of the high companyrt was in our opinion manifestly in error
in thinking that since the post-graduate degree possessed by
the appellant was number one obtained from the university of
rajasthan it companyld number be treated as a valid qualification
for the purpose of recruitment in question in the absence of
any specific order by the university of rajasthan
recognising the said degree or declaring it as an equivalent
qualification. it is companymon ground before us that the
university of rajasthan does number
conduct post-graduate examinations in the subject of
forensic medicine and it does number award the degree of m.l.  forensic medicine . in order that there should be scope for
declaration of equivalence of a qualification obtained
from anumberher body there should be a companyresponding
qualification that can be earned by virtue of passing an
examination or test companyducted by the companycerned university. there can be declaration of equivalence only as between a
degree etc. awarded by the companycerned university and one
obtained from a body different from the companycerned
university. when the university of rajasthan does number
conduct any examination for the award of the degree of m.l.  forensic medicine  there cannumber be any question of
declaration of equivalence in respect of such a degree
awarded by any university. unfortunately the state public
service companymission as well as the division bench of the high
court failed to numberice this crucial aspect. we may also
point out that the declaration of equivalence referred to
in section 23a of the rajasthan university act as well as in
clause  vii  of ordinance number 65 of the rajasthan university
ordinances can only be in respect of qualifications other
than basic or post-graduate degrees awarded by other
statutory indian universities in the companycerned subjects. in
the case of a post-graduate degree in the companycerned subject
awarded by a statutory indian university numberrecognition or
declaration of equivalence by any other university is called
for. this is all the more so in the case of a medical
degree-basic as well as post-graduate-that is awarded by a
statutory indian university and which has been specifically
recognised by the indian medical companyncil. though a companytention was taken by the respondents in the
high companyrt as well as before us that the appellant did number
also satisfy the requirement regarding two years of medico-
legal work we dont find any force in the said plea. the
certificates from the principal and heads of departments of
forensic medicine in the companycerned medical companyleges produced
by the appellant in the high companyrt as annexures in his
affidavit dated july 27 1973 which are at pages 31 and 33
of the printed paper book establish beyond doubt that the
appellant had put in more than two years of medico-legal
work in dr. s. n. medical companylege and in the dharbhanga
medical companylege prior to the last date fixed by the
commission for receipt of the applications.


civil appellate jurisdiction civil appeal number 2460 of 1966.
appeal by special leave from the judgment and order dated
numberember 9 1960 of the allahabad high companyrt in second
appeal number 2074 of 1944.

p. goyal and sobhag mal jain for the appellants. yogeshwar prasad and m. v. goswami for the respondent. the judgment of the companyrt was delivered by
wanchoo c. j. the main question raised in this appeal by
special leave is whether parjoti land  i.e. a permanent
lease-hold interest  in the city of benaras can be
preempted. the respondent brought a suit for pre-emption of
the land in dispute which was sold under a sale deed dated
february 6 1942. the case of the respondent was that he
was owner of a house and land to the south of the property
sold. -he based his claim to pre-emption as a shafi-i-jar
 i.e. pre-emptor by right of vicinage  and also as a
shafi-i-khalit  i.e. pre-emptor by right of appendages . his case was that there was such a custom of pre-emption
prevailing in the whole of the city of benaras and therefore
he was entitled to pre-empt the property sold which was a
khandar  i.e. a house in ruins . the plaint made the ususal
allegation that the necessary talabs had been performed and
the respondent was entitled to pre-empt the sale. the suit was resisted by the vendee whose legal representa-
tive is the appellant before this companyrt. the vendee denied
that there was any custom of pre-emption in the city of
benaras and particularly in the mohalla in which the
property in dispute was situate. it was further alleged
that even if the existence of custom of pre-emption was
proved it companyld number be applied to parjoti land  i.e. lease-
hold land . it was also denied that the respondent was
either shafi-i-jar or shafi-i-khalit. it was further
pleaded that as the vendors and the vendee lived in
calcutta they were number
governed by the custom of pre-emption if any prevalent in
the city of benaras. the performance of talabs was also
disputed. the trial companyrt framed four issues namely  i
whether the respondent had a right to sue  ii  whether the
custom of pre-emption prevailed in mohalla baradeo in the
city of benaras  iii  whether the vendors and the vendee
as residents of calcutta were governed by the custom of
pre-emption and  iv  whether the talabs had been performed. the trial companyrt held that the necessary talabs had been per-
formed. it also held that the respondent was the owner of
the companytiguous house and had therefore the right to sue. on
the question of custom the trial companyrt held that there was
a custom of preemption in the locality which was company
extensive with mahomedan law of pre-emption. finally the
trial companyrt held that the vendors and the vendee were number
governed by the custom as they did number live in benaras. in
this view of the matter the suit was dismissed with companyts. the respondent then went in appeal and his companytention in
one of the grounds of appeal was that as the custom of pre-
emption was held by the trial companyrt to have been proved  and
it was companyextensive with mahomedan law  the custom would
bind hindus also. it was further companytended that the fact
that the vendors and the vendee did number live in benaras made
numberdifference and they would be bound by the custom
prevailing in the locality in which the property was
situate. two main questions thus arose before the first
appellate companyrt namely- i  whether the custom as proved
bound hindus also and  ii  whether the fact that the
vendors and the vendee did number live in benaras exempted them
from being governed by the custom. on the question of
custom the first appellate companyrt observed that the custom
in question had been proved to exist in the locality and was
co-extensive with mahomedan law of pre-emption and that this
finding had number been challenged before it. on the second
question the first appellate companyrt held that the fact that
the vendors and the vendee did number reside in benaras made no
difference to the application of the custom to them with
respect to the property transferred. the question whether parjoti lands companyld be subjected to
pre-emption was number decided by the trial companyrt for it
dismissed the suit on the ground that the vendors and the
vendee number being residents in benaras were number bound by the
custom. the first appellate companyrt having found that the
vendors and the vendee were so bound went into the question
whether lease-hold property companyld be preempted. it held
that the property was heritable and transferable and though
the vendors were lessees and paid some groundrent they were
for all intents and purposes owners and therefore the land
was pre-emptible. it therefore allowed the appeal and
granted a decree for pre-emption. then followed a second appeal to the high companyrt by the
vendee and two main questions were raised there namely- i
that the custom of pre-emption companyld number prevail against the
vendors and the vendee as they were number residents of benaras
and  ii  that in any case it did number extend to lease-hold
land or parjoti land. the high companyrt held that the custom
would bind the vendors and the vendee in this case even
though they were number residents of benaras. on the question
whether the custom prevalent applied to parjoti land or number. the high companyrt seems to have read the judgments of the two
lower companyrts as holding that the custom of pre-emption even
in the case of transfer of parjoti land had been proved. the high companyrt therefore dismissed the appeal. the vendees
heir then obtained special leave from this companyrt and that
is how the matter has companye before us. a number of questions has been raised on behalf of the
appellant but it is unnecessary to go into all of them. the main point that has been urged on his behalf is that the
high companyrt had misread the judgments of the two companyrts below
when it held that they had found that the custom of pre-
emption existed even with respect to transfer of parjoti
land in the city of benaras. it is argued that all that the
two lower companyrts have held is that the custom of pre-emption
co-extensive with mahomedan law existed in the city of
benaras and the first appellate companyrt had further held that
such a custom bound even hindus whether they were residents
in benaras or number. we are of opinion that this companytention
is well-founded. we have already referred to the findings
of the two lower companyrts. the finding of the trial companyrt is
clear and is expressed in these words
i hold that there is a custom of pre-emption
co-extensive with mahomedan law. the first appellate companyrt endorsed this finding in these
words-
the trial companyrt found that the custom in
question existed in the locality and was company
extensive with mahomedan law of pre-emption
and the finding is number challenged in appeal. further in the grounds of appeal by the respondent one of
the grounds was in these terms-
because when the lower companyrt has held that
the custom of pre-emption as obtaining in
benaras is companyextensive with mahomedan law
which embraces the zimmees the lower companyrt has
erred in holding that the plaintiff companyld number
enforce his right of pre-emption against the
defendants. it is thus clear that all that was found by the two iower
courts was that there was a custom of pre-emption prevailing
in the city of benaras which was companyextensive with mohomed
law and
which bound hindus also whether they were residents there or
number so long as the property to be preempted was in the city
of benaras. it is true that the first appellate companyrt held that the
custom applied to lease-hold land also because it was of
opinion that the holder of parjoti land was for all intents
and purposes the owner. but that does number mean that the two
courts had found that the custom as such related to parjoti
land. the custom that was pre-vailing was companyextensive with
mahomedan law whether it applied to parjoti land or number
would depend upon the provisions of mahomedan law. the first appellate companyrt which was apparently number unaware
of the provisions of mahomedan law with respect to pre-
emption seems to have held that though there was some
ground-rent payable the holder of parjoti land was for all
intents and purposes the owner. the high companyrt was
therefore number right in saying that it had been found by the
two companyrts below that the custom of preemption prevailing in
the city of benaras applied even to transfer of parjoti
land. all that the two companyrts had found was that the
custom prevailing in the city of benaras was companyextensive
with mahomedan law. this immediately raises the question as to what is the
extent of mahomedan law in the matter of pre-emption. the
contention on behalf of the appellant is that mahomedan law
recognises pre-emption only with respect to full proprietary
rights and that it does number recognise pre-emption with
respect to lease-hold rights. we are of opinion that this
contention is well-founded. in principles of mahomedan law
by d. f. mulla  15th edition  the extent of pre-emption in
mahomedan law is thus stated at p. 207 -
there must be also full ownership in the land
preempted and therefore the right of pre-
emption does number arise on the sale of a lease-
hold interest in land. this statement of law is supported by a number of decisions
to which reference may number be made. the earliest of these
decisions is baboo ram golam singh v. nursing sahoy
others 1 . in that case mokureree land -was sold and the
owner wanted to pre-empt the sale. the companyrt held that the
mokurereedar did number stand in the same position as the malik
and the law of pre-emption only applied to the sale of land
of a malik i.e. proprietor. therefore there companyld be no
pre-emption where the sale was of only mokureree rights
which were permanent lease-hold rights. the next case to which reference may be made is phul
mohammad khan v. quazi kutubuddin 2 . in that case the
patna companyrt held that mahomedan law of pre-emption did number
 1   1875  xxv weekly reporter  sutherland  43.

i.l.r. 1937 16 pat. 519.
apply to preempting mukarrari and raivati rights the sale
of such .interests being number of full proprietary interest. the next case to which reference may be made is dashrathlal
chhaganlal v. bai dhondubai 1 . there also the right of
preemption arose by custom and was companyextensive with
mahomedan law. the property sold in that case was a plot of
land with two rooms on it in which the vendors had
transferable and heritable rights and some rent was paid to
government on account of the permanent lease on which the
land was held. the high companyrt held that mahomedan law of
pre-emption with which the custom of pre-emption was company
extensive applied only as between freeholders that is to
say the neighbouring land in respect of which the custom
was claimed must be freehold and the land sought to be
preempted must also be freehold. it did number arise on the
sale of leasehold interests in land. the next case to which reference may be made is rameshwar
lal marwari v. pandit ramdeo jha 2 . in that case rayati
land had been sold and a suit was brought to pre-empt that
sale. the patna high companyrt held that there companyld be numberpre-
emption with respect to rayati land which amounted to a
leasehold whatsoever might be the ground on which the pre-
emption might be sought under mahomedan law. these cases bear out the proposition which has been accepted
without dissent by high companyrts that mahomedan law of pre-
emption applies only to sales where they are of full
ownership and pre-emptors must also base their claim on
similar full ownership whether pre-emption is claimed on
ground of companysharership vicinage or participation in
amenities and appendages. learned companynsel for the
respondent relied on bhagwati prasad v. balgobind 3  for the
proposition that there companyld be pre-emption of leasehold
interest also for that was a case of lease. pre-emption
there was claimed number under mahomedan law but under the oudh
laws act. that case therefore does number help the respondent. the law in our opinion is quite clear and it is that under
the mahomedan law of pre-emption there must be full
ownership in the land preempted and therefore the right of
pre-emption does number arise on the sale of leasehold
interest in land. it may be added that the pre-emptor also
must have full ownership in order to maintain a suit for
pre-emption for reciprocity is the basis of mahomedan law
of pre-emption. in this view of the matter as the custom which was found
proved was companyextensive with mahomedan law there can be no
pre-emption of the land which had been sold by the impugned
-sale-deed because the land was parjoti land i.e. leasehold. we may in this companynection refer to oudh behari singh v.
gajadhar

i.l.r. 1941 bom. 460.  3  a.i.r. 1933 oudh 161.

a.i.r. 1957 pat. 695.
jaipuriya 1 . that was also a case of pre-emption relating
to this very mohalla in the city of benaras and the land
pre-empted was parjoti land ie. leasehold it was held by the
allahabad high companyrt that the sale of parjoti land
corresponding to lessees right companyld number be a subject of
pre-emption. the learned judges pointed out in that case
that numbercase had been brought to their numberice in which
lessees rights were held pre-emptible under mahomedan law.


civil appellate jurisdiction civil appeal number 430 of 1970.
appeal by special leave from the judgment and order dated
august 13 1969 of the punjab and haryana high companyrt in

p.a. number 288 of 1968.
jagjit singh chawla k. l. mehta and s. k. mehta for the
appellant. l. sibbal advocate-general punjab and r. n. sachthey
for respondent number 1.

c. mahajan s. s. khanduja and v. p. kohlo for res-
pondent number 2.
the judgment of the companyrt was delivered by
ray j.--this.is an appeal by special leave from the judg-
ment dated 13 august 1969 of the high companyrt of punjab and
haryana. the appellant was appointed and companyfirmed in punjab civil
medical service class i with effect from 26 february 1955.
respondent number 3 dr. s. s. sekhon was companyfirmed in the same
class i service on 28 february 1955. the time scale
salary of class i service is rs. 600-40-800-50-900 with
efficiency bar at 800/-. a class i officer on promotion to
the selection grade is entitled to rs. 1000/-. dr. pritam singh is a fellow of the royal companylege of
surgeons. he obtained qualifications in various post
graduate medical companyrses in england and america. in 1961 he
was serving the government of uganda in africa at a salary
of rs. 3000/p.m. in a permanent pensionable post. the
punjab government in the year 1961 offered him the post of
civil surgeon in the punjab civil medical service. dr.
pritam singh expressed his willingness to accept the post at
a suitable salary. respondent number 2 dr. pritam singh was appointed on 16 july
1962 as chief medical officer in the punjab civil medical
service class i in the scale of rs. 800-50-1500 with a
starting salary of rs. 1000/- p.m. with such allowances as
might be admissible under the rules. he joined the post
with effect from 4 august 1962. by an order of the
governumber of punjab dated 18 december 1962 the post was
directed to be in addition to the existing posts of civil
surgeons both in the selection grade and ordinary grade. the government of punjab thereafter took steps of filling
the post of the chief medical officer chandigarh on a
permanent basis through the public service companymission. a
public numberice
inviting applications for the post was issued under the
authority of the companymission in the month of april 1963.
dr. pritam singh applied for the post. neither the
appellant number respondent dr. sekhon applied for the post
because they did number have the requisite qualification
prescribed for the post. dr. pritam singh was selected by
the punjab public service companymission. the order of
appointment by the governumber was issued on 10 may 1963.
dr. pritam singh was on probation for a period of two years
with effect from the date on which he joined as chief
medical officer namely 4 august 1962 and he was governed
by the punjab civil medical service class i rules. on 30
august 1963 a formal letter was issued to dr. pritam singh
that the governumber of punjab in companysultation with the punjab
public service companymission had allowed dr. pritam singh the
grant of higher starting pay of rs. 1250/- p.m. on his
appointment as chief medical officer on a regular basis in
the time scale of rs. 800-50-1500 with effect from 17 april
1963 as principal medical officer chandigarh which was the
name of the redesignated post of the chief medical officer. on 9 december 1965 dr. pritam singh was companyfirmed with
effect from 17 april 1963 as principal medical officer
chandigarh. on 20 october 1966 the respondent dr. pritam singh was
appointed by the president of india in the selection grade
of punjab civil medical service in the scale of rs. 1300-50-
1600 with effect from 20 october 1966.
the appellant impeached the order dated 20 october 1966
appointing the respondent dr. pritam singh in the selection
grade to be in violation of the punjab civil medical
service  recruitment and companyditions of service  rules 1940
on two broad grounds first that the appointment to the
selection grade of punjab civil medical service companyld be
only by promotion from punjab civil medical service class i
and number by direct appointment and secondly even if dr.
pritam singh companyld be appointed direct to the selection
grade his seniority would be below that of the appellant and
dr. sekhon. when dr. pritam singh was appointed to the selection grade
he was placed at the bottom of the selection grade. the
appellant and the respondent dr. sekhon were also appointed
to the selection grade with effect from 1 numberember 1966 10
days subsequent to the appointment of dr. pritam singh. the
appellant and dr. sekhon companytended that they had been senior
to dr. pritam singh in the time scale of class i service and
therefore the respondent dr. pritam singh should number have
been placed senior to them in the selection grade. 15-1 s.c. india/71
the punjab civil medical service class i  recruitment and
conditions of service  rules are 17 in number. rule 2 c
defines the service to mean the punjab civil medical
service class i. rule 3 states that all appointments to the
service shall be made by the government on the advice of the
commission from time to time as required. the other
relevant rules necessary for the purpose of the present
appeal are rules 5 6 7 1  8 and 9 which are as follows-

appointment to the service shall be made
either by promotion from the class 11 service
or by direct recruitment in india or in
england and when any vacancy occurs or is
about to occur government shall determine in
what manner such vacancy shall be filled. numbereexcept with the previous sanction of
government only such persons shall be eligible
for direct appointment as are number already in
government service. 6.  1  the service shall companysist of such
number of posts of civil surgeons as may be
determined by government from time to time. number less than nine posts shall be filled
by promotion from the class 11 service. provided that recruitment by promotion shall
be made by strict selection and numbermember of
the class 11
serviceshall have any claim to such
promotions of right. 7.  1  members of the service who are
appointed against permanent vacancies shall on
appointment remain on probation for a period
of two years if recruited by direct
appointment and one year if recruited
otherwise than by direct appointment. explanationofficiating service shall be
reckoned as period spent on probation but no
member of the service who is officiating in
any appointment shall on the companypletion of his
period of probation be entitled to be
confirmed until he is appointed against a
permanent vacancy. the seniority of the members of the
service shall be determined by the dates of
their companyfirmation in the service
provided that if two or more members are
confirmed on the same date

a member recruited by direct appointment
shall be senior to a member recruited by
promotion.  b  in the case of members who are both or
all appointed by promotion from the class ii
service seniority shall be determined
according to the seniority of those members in
that service and
 c  in all other cases government shall
decide the seniority. 9.  1  a member of the service shall on
appointment be entitled to a pay of a scale
rising from rs. 600 a month by an annual
increment of rs. 40 a month to rs. 800 a month
and then by an annual increment of rs. 50 a
month to rs. 900 a month with an efficiency
bar at rs. 800 a month. in addition a member
if he is of number-asiatic domicile shall be
entitled to receive such overseas pay as may
be prescribed by government from time to time. members of the service shall be eligible
for promotion to a selection grade and on such
promotion shall be entitled to a pay of rs. 1000 a month. provided that promotion to the selection grade
shall be made strictly by selection and no
member of the service shall be entitled as of
right to such promotion. the number of appointments in the
selection grade shall number exceed 25 per cent
of the total number of appointments in the
service
counsel for the appellant companytended that rule 9 2  which
stated that the members of the service shall be eligible
for promotion to the selection grade meant that only the
members of class i service companyld be promoted to a selection
grade and there companyld be numberdirect appointment to a
selection grade. a direct appointment to the selection
grade was said by the appellant to be an infraction of rule
9 2 . the companytention of the appellant with regard to rule 5
was that it spoke of appointment to the service either by
promotion from class ii or by direct recruitment and
therefore there companyld be direct recruitment only to class i
service and number to the selection grade. it was emphasised
that rule 5 did number specifically provide for direct
appointment to selection grade. rule 9 2  does number companytain any restrictive word that only
members of the service shall be eligible to promotion to a
selection grade. the proviso to rule 9 2  companytains a word
of limitation and it is that numbermember of the service shall
be entitled as of right to such promotion. to exclude
appointment to selection grade would be to rob rule 5 as
well as rules 9 2  and 9 3  of their companytent because rule 5
speaks of appointment to the service to be
either by promotion or by direct recruitment. rule 9 2
speaks of eligibility of members of the service for
promotion to the selection grade and rule 9 3 speaks of the
number of appointments in the selection grade number to exceed
25 per cent of appointments in the service. the service as
defined in rule 2 c  means the punjab civil medical service
class i. selection grade is the punjab civil medical service
class i. that is number disputed. therefore rule 5 which
specifically speaks of appointment to the service by direct
recruitment embraces class i and the selection grade which
is a part and parcel of class i. the word appointment in
rule 9 3  in regard to selection grade as number exceeding 25
per cent of the total number of appointments in the service
contemplates both promotion and direct appointments in the
service to the selection grade. the word appointment
cannumber mean only promotion. it means appointment both by
promotion and by direct recruitment. that is why the word
appointment is used in that sense once in relation to
selection grade and again in relation to the total number of
appointments to the service. direct appointment to
selection grade is number only companytemplated in the rules
particularly rules 5 9  2  and 9  3  but is also the
implicit idea inherent in the words direct recruitment and
direct appointment in rule 5 for the purpose of attracting
able and meritorious persons to the service including the
selection grade. the fallacy in the appellant companytention
is that though selection grade will be within the definition
of the service in rule 2 c  wherever the word service
occurs in rules 5 and 9 the companystruction put upon the
words service is members of the service who are in class i
on time scale appointment and who alone can be promoted to
the selection grade and that there cannumber be any direct
appointment to selection grade. there is anumberher reason as to why the rules companytemplate
direct appointment to selection grade in proper cases. if
it appears that there are number suitable persons in class i
time scale who can be promoted to the selection grade
persons of ability will have to be brought in to the
selection grade from outside. a companytention was advanced by companynsel for the appellant that
rule 3 companytemplated appointment by the government on the
advice of the public service companymission and that the
appointment of dr. pritam singh was number made on such advice. the recruitment of dr. pritam singh to the post of chief
medical officer was in companysultation with the punjab public
service companymission. that appointment was made in the month
of may 1963. being a direct recruit he was an probation
for two years. he was companyfirmed thereafter. his starting
salary was higher and at the time of companyfirmation he was
getting a salary of rs. 1250 p.m. in the scale of rs. 800-
50-1500. dr. pritam singh prior to his appointment to the
selection grade in the punjab civil medical service class i
was getting a salary of rs. 1250 p.m. which was higher than
the limit of time scale pay in class i service. the other companytention on behalf of the appellant was that dr.
pritam singh should number have got seniority over the
appellant and the respondent dr. sekhon in the selection
grade. prior to the appointment of dr. pritam singh to the
selection grade the seniority list of class i service to
which the appellant and the two respondents belonged was number
fixed because of representations made by various persons
including the appellant and dr. sekhon. we are number called
upon to go into the seniority list of class i service
because the only companytroversy number is with regard to the
seniority list of the selection grade. the appointment of dr. pritam singh to the selection grade
was earlier than that of the appellant and dr. sekhon. therefore there cannumber be any cause for companyplaint on ground
of seniority. when dr. pritam singh was appointed to the
selection grade his position was last in the list. that was
on 20 october 1966. the appellant and dr. sekhon were
promoted to the selection grade 10 days thereafter and their
position would be in the ordinary companyrse below dr. pritam
singh. it would be unjust to hold that the appellant and
dr. sekhon would be put at a place higher than dr. pritam
singh in the selection grade. the high companyrt companyrectly expressed the view that there are
numberspecific rules in regard to the fixation of seniority in
the selection grade in the case of a direct appointment. if
there are numberrelevant rules with regard to fixation of
seniority in the case of a direct appointment to the
selection grade dr. pritam singh having been recruited by
direct appointment earlier than the appellant and dr.
sekhon dr. pritam singhs seniority cannumber be disturbed.


original jurisdiction writ petition number 522 of 1974.
petition under article 32 of the companystitution. s. marwah for the petitioner. c. majumdar g. s. chatterjee and sukumar basu for the
respondent. krishna iyer j. the detenu petitioner challenges his
detention on various rounds but shri h. s. marwah appearing
as amicus curiae has raised big companytentions and small some
of which do number merit companysideration and others need number be
dealt with since on a short point the petition must
succeed. the scheme of the maintenance of internal security act 1971
 act number 26 of 1971   hereinafter called the misa for
short  is in keeping with art. 27 of the companystitution and
emphasizes the various stages at which there will be
consideration of the need for the detention by different
authorities such as the district magistrate the state
government and ultimately the central government. for the
effective exercise of this power a scheme has been built
into the statute. 15 5
we are companycerned at present with the power to direct
release of the detenu. we may extract the provision here
14 1  without prejudice to the provisions of
section 21 of the general clauses act 1897 a
detention order may at any time he revoked
or modified
 b numberwithstanding that the order has been
made by a state government by the central
government. with a view to posting the central government
with the detention and the grounds t
herefore
s. 3 4  provides thus

power to make orders detaining certain persons. when any order is made or approved by
the state government under this section the
state government shall within seven days
report the fact to the central government
together with the grounds on which the order
has been made and such other particulars as in
the opinion of the state government have a
bearing on the necessity for the order.  emphasis ours
a fair reading of s. 3 indicates that the state government
may directly issue an order of detention or if it is done
by a lesser authority approve of such detention order as
provided in the statute. sub-s.  4  of s. 3 which we have
extracted obligates the state government to companymunicate
within seven days of the order of detention it makes or it
approves that fact to the central government together with
the grounds on which the order has been made and other
relevant particulars. even assuming that the order is made
by the district magistrate and is approved by the state
government the companymunication has to be made to the central
government within the time specified. this procedural
mandate is inviolable except on peril of the order being
voided. in the present case it is obvious that the detention order
was made on numberember 21 1972 by the district magistrate and
approved by the state government on december 2 1972. it is
curious that on the states own showing the companymunication to
the central government in companypliance with s. 3 4  of the
misa has been made on december 1 1972. this date is beyond
seven days of the district magistrates order and it companyld
number have been in companypliance with the seven days spell after
the approval by the state government that having been done
only a day after the alleged companymunication to the central
government. it is thus plain that the state government
before the approval itself was made. secondly if what it
communicated was the order of the district magistrate it
was number sufficient companypliance with the statutory
requirement. moreover it was beyond the seven days
period. in short there has been an infringement of the procedural
safeguard. this has in several rulings held that the
liberty of the citien is a priceless freedom sedulously
secured by the companystitution. even so during times of
emergency in companypliance with the provisions of the
constitution the said freedom may be curtailed but only in
strict companypliance with statutory formalities which are the
vigilant companycern of the companyrts to enforce.