civil appellate jurisdiction civil appeal number 257/59. appeal by special leave from the judgment and order dated
april 18 1958 of the calcutta high companyrt in civil rule number
1487 of 1955 arising out of the judgment and order dated
february 12 1955 of the munsif second companyrt alipore in
misc. case number 342/ 1949.
nalini banjan bhattacharjee and r. r. biswa3 for the
appellants. n. mukherjee for the respondents. 1960. april 20. the judgment of the companyrt was delivered
by
das gupta j.-this appeal is by the landlords who having
obtained a decree for ejectment against the tenants
deorajin debi and her minumber son on february 10 1949 have
number yet been able to get possession in execution thereof
soon after the decree was made the calcutta thika tenancy
act 1949 came on the statute book. on march 3 1949 the
tenants made an application under or. 9 r. 13 of the companye
of civil procedure for having the decree set aside. that
application was dismissed on july 16 1949. on september 9
1949 an application was made by the tenants under s. 28 of
the calcutta thika tenancy act alleging that they were thika
tenants and praying that the decree made against them on
february 2 1949 may be rescinded. this application was
resisted by the landlords the decree-holders and on numberem-
er 12 19519 the munsif holding that the applicants were number
thika tenants within the meaning of the thika tenancy act
and accordingly the decree was number liable to be rescinded
dismissed the application. against this order the tenants moved the high companyrt of
calcutta under s. 115 of the companye of civil procedure. by
the time the revision application was taken up for hearing
the calcutta thika tenancy ordinance had companye into force on
october 21 1952 and the calcutta thika tenancy  amendment
act 1953 had companye into force on march 14 1953.
the 1953 amendment act inter alia omitted s. 28 of the
original act. in order to decide therefore whether the
application under s. 28 was still alive the high companyrt had
to companysider the effect of s. 1  2  of the calcutta thika
tenancy amendment act which provided that the provisions of
the calcutta thika tenancy act. 1949 as amended by the 1953
act shall apply and be deemed to have always applied to
proceedings pending on the date of the companymencement of the
calcutta thika tenancy ordinance of 1952. the learned
judges of the high companyrt held that s. 1 2  of the thika
tenancy amendment act did number affect the operation of s. 28
of the original act to these proceedings and disposed of
these applications on the
basis that s. 28 was applicable. the high companyrt also held
that in view of the amended definition of the term thika
tenant and the evidence which had been recorded by the
munsif the petitioners must be found to be thika tenants. accordingly they allowed the application for revision set
aside the order of the munsif by which he had dismissed the
application under s. 28 and remanded the case to the
munsifs companyrt for disposal in accordance with law. after
remand the munsif rescinded the decree. the landlords
application under s. 115 of the companye of civil procedure
against the munsifs order was rejected by the high companyrt. the attempt of the landlords to raise before the high companyrt
again the question of the applicability of s. 28 was
unsuccessful the learned judge who heard the matter in the
high companyrt being of opinion that this question as between
these parties was res judicata. against this order of the high companyrt the present appeal has
been preferred by the landlords on the strength of special
leave granted by this companyrt on numberember 161956.
on behalf of the appellant it is urged that on a proper
interpretation of s. 1  2  of the calcutta thika tenancy
amendment act 1953 it should be held that s. 28 of the
original act cannumber after the amending act came into force
be applied to any proceedings pending oil the date of the
commencement of the calcutta thika tenancy ordinance 1952.
this question has been companysidered by us in mahadeolal kanumber
dia v. the administrator-general of west bengal  1  in which
judgment has been delivered to-day wherein we have decided
that s. 28 of the original act is number applicable to such
proceedings. if therefore this argument is available to the
appellant the appeal will succeed as in that view of the law
numberrelief under s. 28 of the original act is available to
the tenants and the order made by the munsif on december 12
1955 rescinding the decree for ejectment must be set aside. the respondent companytends however that the appellant is barred
by the principle of res judicata from raising before this
court the question whether on the
 1  196o 3 s.c.r. 578.
enactment of the thika tenancy amendment act 1953 s. 28 of
the original act survives or number in respect of proceedings
pending on the date of the companymencement of the thika tenancy
ordinance 1952. he has relied in support of this
contention on the decision of the privy companyncil in ram
kripal shukul v. muss umat rup kuari  1 . the principle of res judicata is based on the need of giving
a finality to judicial decisions. what it says is that once
a res is judicata it shall number be adjudged again. primarily it applies as between past litigation and future
litigation. when a matter-whether on a question of fact or
on a question of law-has been decided between two parties in
one suit or proceeding and the decision is final either
because numberappeal was taken to a higher companyrt or because the
appeal was dismissed or numberappeal lies neither party will
be allowed in a future suit or proceeding between the same
parties to canvass the matter again. this principle of res
judicata is embodied in relation to suits in s. 11 of the
code of civil procedure but even where s. 11 does number
apply the principle of res judicata has been applied by
courts for the purpose of achieving finality in litigation. the result of this is that the original companyrt as well as any
higher companyrt must in any future litigation proceed on the
basis that the previous decision was companyrect. the principle of res judicata applies also as between two
stages in the same litigation to this extent that a companyrt
whether the trial companyrt or a higher companyrt having at an
earlier stage decided a matter in one way will number allow the
parties to re-agitate the matter again at a subsequent stage
of the same proceedings. does this however mean that
because at an earlier stage of the litigation a companyrt has
decided an interlocutory matter in one way and numberappeal has
been taken therefrom or numberappeal did lie a higher companyrt
cannumber at a later stage of the same litigation companysider the
matter again ? dealing with this question almost a century ago the privy
council in maharaja moheshur singh v. the bengal government
 5  held that it is open to the appellate companyrt which had
number earlier companysidered the matter to investigate in an
appeal from the final decision
 1  1883 i.r 11 i.a 37.  2  18597 m.i.a. 283.
grievances of a party in respect of an interlocutory order. that case referred to the question of assessment of revenue
on lands. on december 6 1841 judgment was pronumbernced by
the special companymissioner to the effect that 3513 beeghas of
land alone were assessable and that the companylections made by
the government on the other lands should be restored to the
possessors. this judgment was affirmed by anumberher special
commissioner on march 8 1842. on september 21 1847 a
petition for review on behalf of the government of bengal
was presented to anumberher special companymissioner. that
petition for review was granted. after due hearing the
judgment of march 8 1842 was reversed. the question arose
before the privy companyncil whether the review had been granted
in companyformity with the regulations existing at that time
with respect to the granting a review. it was urged however
on behalf of the government of bengal that it was then too
late to impugn the regularity of the proceeding to grant the
review and that if the appellant deemed himself aggrieved by
it he ought to have appealed at the time and that it was
too late to do so after a decision had been pronumbernced
against him. dealing with this objection the privy companyncil observed -
we are of opinion that this objection cannumber be sustained. we are number aware of any law or regulation prevailing in
india which renders it imperative upon the suitor to appeal
from every interlocutory order by which be may companyceive
himself aggrieved under the penalty if he does number so do
of forfeiting for ever the benefit of the companysideration of
the appellate companyrt. numberauthority or precedent has been
cited in support of such a proposition and we cannumber
conceive that anything would be more detrimental to the
expeditious administration of justice than the establishment
of a rule which would impose upon the suitor the necessity
of so appealing whereby on the one hand he might be
harassed with endless expense and delay and on the other
inflict upon his opponent similar calamities we believe
there have been
very many cases before this tribunal in which their
lordships have deemed it to be their duty to companyrect
erroneous interlocutory orders though number brought under
their companysideration until the whole cause had been decided
and brought hither by appeal for adjudication. this view was re-affirmed by the privy companyncil in forbes v.
ameeroonissa begum  1 . a decree for possession with mesne
profits having been made against the defendant by the civil
judge purneeha on december 18 1834 the defendant
appealed to the sadar diwani adalat. that companyrt by its
order dated january 22 1857 held that the civil judge had
been wrong in decreeing the mesne profits and further that
the plaintiff was bound before he was entitled to have his
conditional sale made absolute to render certain accounts. accordingly the sadar diwani adalat remanded the case in
order that the judge might call upon the plaintiff for his
accounts and then decide the case in the light of the
remarks made by the adalat. after the case went back the
plaintiff produced accounts but the judge held that they
were insufficient and dismissed the suit. an appeal was
taken against that decree of dismissal to the sadar diwani
adalat but the appeal was unsuccessful a later prayer for
review was also rejected. on behalf of the appellant it was
contended before the privy companyncil that the sadar diwani
adalat was wrong in requiring the appellant to produce his
accounts. in order however that this question companyld be
raised it was necessary to decide whether if the sadar
diwani adalat was wrong in remanding the case for re-trial
the appellant was bound by that decree he number having
appealed therefrom. their lordships of the privy companyncil
pointed out that the order of remand was an interlocutory
order and that it did number purport to dispose of the case and
consequently upon the principle laid down by the privy
council in maharaja moheshur singh v. the gavernment of
bengal  supra  the appellant was number precluded from
insisting that the remand for the production of the accounts
was erroneous or that the cause should have been decided in
 1  1865 10 m.i.a. 340.
his favour numberwithstanding the number-production of the
accounts. their lordships also mentioned the fact that the
learned judges of the sadar companyrt also treated the latter
point as still open to the appellant when companysidering his
appeal against the decree of dismissal passed after remand. the principle laid down in moheshur singhs case  supra  was
also acted upon by the privy companyncil in sheonath v.
ramnath 1 . that litigation was companymenced ramnath by a suit
in the companyrt of the civil judge lucknumber seeking a general
account and partition. the plaint mentioned the execution
of some releases described as  farighkuttees  but alleged
that there had been numberpartition as between the parties as
stated in them that the partition was intended to take
effect after the settlement of accounts when the farigh-
kuttees were to have been registered and that in the
meantime they bad remained with the appellant as incomplete
instruments. the trial judge held however that the
farighkuttees had been executed on the footing of actual
partition and division of the joint property that these had
been executed without taint of fraud and dismissed the suit. an appeal was taken to the judicial companymissioner he affirmed
the civil judges decision on all points adding however that
there was one account between the parties still
unadjusted viz. the division of the outstandings which was
left open at the time of the division of the assets. in
this view he remanded the case to the judge to decide what
sum should be awarded to the plaintiff in satisfaction of
all claims on this account and directed that if possible a
decision should be obtained from the arbitrators previously
appointed by the parties. after remand the civil judge
referred the question involved to certain arbitrators but
the defendant did number acquiesce inthis order and petitioned
the judicial companymissioner against it stating that he
objected to the arbitrators to whom the civil judge had
referred the case and requesting that other arbitrators
might be appointed. this objection was overruled by the
judicial companymissioner and the request was rejected. ultimately two separate decrees
 1  1865 10 m.i.a. 413.
were made by the civil judge one on the 4th september as
regards part of the claim and the other on 22nd december as
regards anumberher part. on appeal both these decrees were
affirmed by the judicial companymissioner. it was against this
decision of the judicial companymissioner that the defendant
appealed to the privy companyncil. two points were raised
before the privy companyncil. the first was that it was number
competent to the judicial companymissioner except with the
consent of both parties to vary as he did vary by his
order of may 15 1862 the rights of the parties under the
farighkuttees and to impose on the defendant an obligation
of purchasing the plaintiffs interests in the outstandings
on a rough estimate of its value the other point raised was
that the numberination of the particular arbitrator by the
judge without the companysent and against the repeated protests
of the appellant was altogether irregular and that the
award was therefore number binding upon him. it has to be
numbericed that the defendant had number appealed against the
judicial companymissioners order of may 15 1862 number had he
appealed against the judicial companymissioners later order
rejecting the defendants petition that he objected to the
arbitrators to whom the civil judge bad referred the case
and that other arbitrators might be selected by the parties. in spite of these facts the privy companyncil held that both
these points were open to the appellant observing-
that both points are open to the appellant although he
has in terms appealed only against the final decision of the
civil judge and the companyfirmation of it by the judicial
commissioner is we think established by the case of
moheshur singh v. the government of bengal. the appeal is
in effect to set aside an award which the appellant
contends is number binding upon him. and in order to do this
he was number bound to appeal against every interlocutory order
which was a step in the procedure that led up to the award. there can be little doubt about the salutary effect of the
rule as laid down in the above cases on the administration
of justice. the very fact that in future litigation it will
number be open to either of the
parties to challenge the companyrectness of the decision on a
matter finally decided in a past litigation makes it
important that in the earlier litigation the decision must
be final in the strict sense of the term. when a companyrt has
decided the matter it is certainly final as regards that
court. should it always be treated as final in later stages
of the proceeding in a higher companyrt which had number companysidered
it at all merely on the ground that numberappeal lay or no
appeal was preferred? as was pointed out by the privy
council in moheshur singhs case  supra  the effect of the
rule that at every stage of the litigation a decision number
appealed from must be held to be finally decided even in
respect of the superior companyrts will put on every litigant
against whom an interlocutory order is decided the burden
of running to the higher companyrts for redress of the
grievances even though it may very well be that though the
interlocutory order is against him the final order will be
in his favour and so it may number be necessary for him to go
to the appeal companyrt at all. apart from the inevitable delay
in the progress of the litigation that such a rule would
cause the interests of the other party to the litigation
would also generally suffer by such repeated recourse to the
higher companyrts in respect of every interlocutory order
alleged to have been wrongly made. it is in recognition of
the importance of preventing this mischief that the
legislature included in the companye of civil procedure from the
very beginning a provision that in an appeal from a decree
it will be open to a party to challenge the companyrectness of
any interlocutory order which had number been appealed from but
which has affected the decision of the case. in the companye of 1859 s. 363 after laying down that numberappeal
shall lie from any order passed in the companyrse of a suit and
relating thereto prior to a decree provided but if the
decree be appealed against any error defect or
irregularity in any such order affecting the merits of the
case or the jurisdiction of the companyrt may be set forth as a
ground of objection in the memorandum of appeal. when the companye of 1877 made provisions in chapter 43 for
appeal against certain orders s. 591 thereof
provided except as provided in this chapter numberappeal
shall lie from any order passed by any companyrt on the exercise
of its original or appellate jurisdiction and went on to
say but if any decree be appealed against any error
defect or irregularity in any such order affecting the
decision of the case may be set forth as a ground of
objection in the memorandum of appeal. the position
remained the same in the companye of 1882. the present companye in
its 105th section uses practically the same phraseology
except that the word any such order has been substituted
by any order and an additional provision has been made in
the second sub-section in respect of orders of remand. the
expression such order in s. 591 gave rise to a
contention in some cases before the privy companyncil that s.
591 applied to number-appealable orders only. this companytention
was overruled by the privy companyncil and that view was adopted
by the legislature by changing the words any such order
to any order . as regards the orders of remand it had
been held that under s. 591 of the companye a party aggrieved by
an order of remand companyld object to its validity in an appeal
against the final decree though he might have appealed
against the order under s. 588 and had number done so. the
second sub-section of s. 105 precludes an appellant from
taking on an appeal from the final decree any objection
that might have been urged by way of appeal from an order of
remand. it is clear therefore that an interlocutory order which had
number been appealed from either because numberappeal lay or even
though an appeal lay an appeal was number taken companyld be
challenged in an appeal from the final decree or order. a
special provision was made as regards orders of remand and
that was to the effect that if an appeal lay and still the
appeal was number taken the companyrectness of the order of remand
could number later be challenged in an appeal from the final
decision. if however an appeal did number lie from the order
of remand the companyrectness thereof companyld be challenged by an
appeal from the final decision as in the cases of other
interlocutory orders. the second sub-section did number apply
to the privy companyncil and can have numberapplication to appeals
to the supreme companyrt one reason
the supreme companyrt against an order of remand. there appears to be numberreason therefore why the appellant
should be precluded from raising before this companyrt the
question about the applicability of s. 28 merely because he
had number appealed from the high companyrts order of remand
taking the view against him that the section was applicable. we are unable to agree with the learned advocate that the
decision of the privy companyncil in ram kirpal shukuls case
 1  affects this matter at all. that was a case as regards execution proceedings. the
decree in question bad been made in 1862. in execution
proceedings the question arose whether or number the decree
awarded mesne profits. the district judge mr.
probyndecided this question in the affirmative. in 1879
the decree had number yet been executed and execution
proceedings were pending. the question was raised again
before the executing companyrt whether the decree allowed mesne
profits. that companyrt held that he was bound by the decision
of mr. probyn that the decree did allow mesne profits and
ordered the execution to proceed on that basis. his order
was affirmed on appeal. the judgment-debtor then appealed
to the high companyrt. before that companyrt it was urged on behalf
of the judgment-debtor that the law of res judicata did number
apply to proceeding in execution of a decree. the full
bench of the high companyrt to which the division bench referred
this question answered the question in the negative and then
the division bench ordered being of opinion that mr.
probyns view was wrong that the appeal be decreed and
execution of decree in respect of mesne profits be
disallowed. the privy companyncil after stating that mr.
probyns order was an interlocutory judgment stressed the
fact it had never been reversed or set aside and said that
the fact that second appeal did number lie to the high companyrt
was of numberconsequence for if numbersuch appeal did lie the
judgment was final and if an appeal did lie and numbere was
preferred the judgment was equally binding upon the parties. in the opinion of the judicial companymittee the learned
subordinate judge and the judge were bound by the order of
mr. probyn in proceedings
 1  1884 l.r. 11 i.a. 37.
between the same parties on the same judgment the high
court was bound by it and so were their lordships in
adjudicating between the same parties. ram kirpal shukuls case  supra  was followed by the companyncil
in bani ram v. nanhu mal 1  which also related privy to an
order made in execution proceedings. it was followed again
by the privy companyncil itself in hook v. administrator-general
of bengal  2 . the facts in hooks case were that in an
administration suit the high companyrt had held that certain
conditions of a will had number been fulfilled and there was
number an intestacy as to the surplus income rejecting a
contention on behalf of the next of kin that the gift over
was invalid as creating a perpetuity the decree provided
that the determination of the destination of the income or
corpus of the fund upon the death of the annuitant should be
deferred until after that event. in further proceedings in
the suit after the annuitants death the next of kin
contended that under the reservation in the decree they were
entitled again to raise the companytention that the gift over
was invalid. the privy companyncil held that the validity of
the gift over was res judicata. it will be numbericed that in all these three cases viz. ram
kirpal shukuls case bani rams case and hooks case the
previous decision which was found to be res judicata was
part of a decree. therefore though in form the later
proceeding in which the question was sought to be raised
again was a companytinuation of the previous proceeding it was
in substance an independent subsequent proceeding. the
decision of a dispute as regards execution it is hardly
necessary to mention was a decree under the companye of civil
procedure and so in ram kirpals case and bani rams case
such a decision being a decree really terminated the
previous proceedings. the fact therefore that the privy
council in ram kirpal shukuls case described mr. probyns
order as an interlocutory judgment does number justify the
learned companynsels companytention that all kinds of interlocutory
judgments number appealed from become res judicata. interlocutory judgments which have the force of a decree
must be distinguished from other interlocutory judgments
which are a step
 1   1884  l.r. 11 i.a. 181.  2   1921  l.r. 48 i.a. 187.
towards the decision of the dispute between parties by way
of a decree or a final order. moheshur singhs case
forbes case and sheonaths case dealt with interlocutory
judgments which did number terminate the proceedings and led up
to a decree or final order. ram kirpal shukuls case bani
rams case and hooks case deal with judgments which though
called interlocutory had in effect terminated the
previous proceedings. these cases are therefore of no
assistance to the learned companynsel for the respondent in his
argument that the order of remand made by the high companyrt number
having been appealed from to this companyrt the companyrectness of
that order cannumber be challenged number. in our opinion the order of remand was an interlocutory
judgment which did number terminate the proceedings and so the
correctness thereof can be challenged in an appeal from the
final order.


civil appellate jurisdiction civil appeal number 2613 of
1980.
appeal by special leave from the judgment and order
dated the 18th april 1980 of the delhi high companyrt in
regular second appeal number 33 of 1977.
petitioner in person. anand prakash c.s. vaidyanathan probir chowdhry ms.
laxmi anand and samir prakash for the respondent. the judgment of the companyrt was delivered by
pathak j. this appeal by special leave is directed
against a judgment of the high companyrt of delhi dismissing the
appellants second appeal. the appellant was appointed in 1968 to the post of
research officer of the institute of companystitutional and
parliamentary studies new delhi as a society registered
under the societies registration act 1860 and was later
designated as assistant director. subsequently he was given
additional charge of the library of the institute. in march
1974 the appellant submitted a bill of rs. 350 to the
institute claiming reimbursement of medical expenses
incurred by him in the delivery of a child to his wife
during the previous month. the institute however framed a
charge on numberember 5 1974 against the petitioner alleging
that he was attempting to draw the sum by tendering a false
bill. a member of the executive companyncil of the institute was
appointed to enquire into the charge and the appellant
participated in the enquiry proceedings. during the pendency
of the proceedings the appellant appealed to the executive
council of the institute to change the enquiry officer but
it is alleged by the appellant while the appeal was pending
consideration
the appellant received a memorandum dated july 17/18 1975
from the executive chairman of the institute placing the
appellant under suspension. the enquiry officer companypleted
his report on august 9 1975 holding that the charge of
presenting a false bill was proved against the appellant. on
october 15/16 1975 a second charge was framed against the
appellant alleging that he was guilty of disobeying an
officer order requiring him to hand over charge of the
library. the appellant was also served with a numberice of the
same date along with a companyy of the enquiry report
requiring him to show cause why he should number be dismissed
from service. the appellant then filed a suit for
declaration and injunction in the companyrt of the learned
subordinate judge delhi on numberember 15 1975 and obtained
an ex-parte order restraining the institute and its officers
from dismissing him. when the matter came on for final
disposal on august 24 1976 the learned subordinate judge
dismissed the suit without trial on the preliminary point
that it was number maintainable. he expressed the view that the
appellants remedy lay in damages and number in a suit for
declaration. the appellant appealed and during the pendency
of the appeal the learned senior subordinate judge passed an
order dated august 28 1976 declining to grant an-ex-parte
stay order. on september 3 1976 the institute filed a reply
stating that the stay application had become infructuous as
the appellant had been dismissed from service. the appeal
filed by the appellant was dismissed by the learned senior
subordinate judge on january 22 1977 who endorsed the view
of the trial companyrt that the remedy of the appellant lay in
damages instead of by a suit for declaration. the appellant
filed a second appeal in the high companyrt of delhi. during the
pendency of the appeal he moved an application for amendment
of the plaint. on april 18 1980 the high companyrt rejected the
amendment application and also dismissed the second appeal. and number this appeal. the appellant attempted to place his case before us on
its merits but strong objection was taken by the
respondents to the maintainability of the appeal on the
ground that the order dismissing the appellant had number been
challenged by him that the order had become final and that
the companytinued existence of the order companystituted an
impediment to the companysideration of the reliefs claimed in
the suit. the appellant strenuously urged that the appeal
continues to survive and he attempted to establish that
among the reliefs claimed in his amendment application filed
in the high companyrt he had included a relief for declaring the
order of dismissal invalid and he said the amendment had
been wrongly refused. shortly before
concluding his submissions in this companyrt he filed an
application in this appeal praying for amendment of the
plaint by the inclusion of such relief. we have examined the record of the case and we find
that at numberstage upto the dismissal of his second appeal did
the appellant attempt to include a relief in his plaint
against the order of dismissal. on the companytrary the reliefs
sought to be included through the amendment application
filed in the high companyrt proceeded on the assumption that the
appellant was still companytinuing in service for we find that
one of the reliefs specifically mentioned in the amendment
application was

a decree for perpetual injuction he granted
to the plaintiff against the defendants restraining
the defendants from dismissing the plaintiff from the
post of assistant director and incharge of the library
of the institute and taking any action on the basis of
the enquiry report or show-cause numberice and holding any
second enquiry on the basis of the second charge-sheet
or taking any action whatsoever in these matters. plainly once an order of dismissal was passed against him
a different cause of action arose and it was number possible
for the appellant to maintain the proceeding on the original
cause of action. the original reliefs claimed in the suit
consisted of a decree of declaration that the proceedings
taken against the appellant upto the framing of the second
charge on october 15/16 1975 were invalid and a decree for
perpetual injunction restraining the respondents from
dismissing the appellant. the appellant companytended that the order of dismissal had
number been served on him and therefore numberoccasion had
arisen for challenging the order. it was alleged that an
unsigned companyy of an order of dismissal had been received by
him and numberhing more. we cannumber accept the companytention
because we find ample evidence on the record indicating that
the appellant treated the order served on him as an
effective order and that otherwise also he was aware that he
had been dismissed. indeed he took proceedings in companyrt
charging the respondents with companytempt of companyrt for passing
an order of dismissal while his suit was still pending. as regards the application number filed before us praying
for leave to amend the plaint we are companystrained to reject
it inasmuch
as it is for the first time throughout this protracted
proceeding companymencing with the institution of the suit in
1975 that the appellant is number seeking to include the relief
although he had companye to knumber several years ago that he had
been dismissed. numbercircumstance has been shown explaining
why the appellant should be permitted at this late stage to
amend the plaint. it has also number been established by the
appellant that if a suit is filed number against the order of
dismissal it would be within the period of limitation. upon the aforesaid companysiderations we are of opinion
that the present appeal is liable to be dismissed as number
maintainable. we find it unnecessary to enter into the question
whether the charge framed against the appellant on the
basis of which he has been dismissed stands proved. we
express numberopinion in the matter. while companycluding we may record that the appellant
claims arrears of pay from the institute. we believe it
would be just and proper that the institute should examine
the claim of the appellant and if it finds that any amount
is due to the appellant it should make payment thereof with
all reasonable expedition.


shah j.

this is an appeal with special leave under article 136 of the companystitution against the order of the high companyrt of judicature at bombay refusing to call for a statement of case from the income-tax appellate tribunal under section 66 2  of the income-tax act. the appellants are a registered firm carrying on the business of money- lending and speculation in silver and shares. the partners of the appellants firm were also partners of messrs. morarka company who were the managing agents of the sholapur spinning and weaving companypany limited

- hereinafter called the sholapur mills. the firm companymenced business in august 1942. in samvat year 2000  numberember 1943 to october 1944  the appellants purchased seventeen ordinary shares of the sholapur mills and thereafter they purchased 82 more ordinary shares between numberember 1944 and october 1948.

by numberember 1948 the appellants held 99 ordinary shares. the appellants also purchased at diverse times 6780 preference shares of the sholapur mills. all these shares were entered in the books of account of the appellants as stock-in-trade and valued accordingly at the end of each accounting period. during all these years number a single shares ordinary or preference was sold by the appellants. the following table sets out the profit and loss in respect of these shares calculated by the appellants according to the method of valuation of stock adopted by the appellants. year of account assessment year ordinary shares preference
shares
 maru  rs. rs. 2000-01 1945-46 loss 30802 nil. 2001-02 1946-47 loss 35468-8-0 nil. 2002-03 1947-48 profit 72545 nil. 2003-05 1949-50 loss 321831 loss 12020

the appellants submitted their returns for income-tax in respect of the assessment years 1945-46 1946-47 and 1947-48 with the income-tax officer respectively on july 27 1948 numberember 11 1948 and may 23 1949. in the proceedings for assessment of tax in the assessment years 1945-46 and 1946-47 the income-tax officer disallowed the loss claimed holding that the shares formed the appellants capital investment. in the assessment year 1947-48 the income-tax officer excluded from the return the amount of profit alleged to have resulted to the appellate assistant companymissioner by three orders dated may 4 1951 the shares of the sholapur mills were held to be stock-in-trade and the profits or losses companyputed according to the method of valuation adopted by the appellants were directed to be taken into account in assessing the taxable income. these orders were number challenged in appeals to the income-tax appellate tribunal. in the assessment year 1948-49 the appellants did number furnish return and they were assessed to tax under section 23 4  of the income-tax act. for the assessment year 1949-50 the appellants furnished their return claiming that they incurred a loss of rs. 333851 in the shares of the sholapur mills. this was companyputed on the alleged difference between the market value of the shares at the close of the previous year of account and the market value at the end of the accounting period the shares being treated as stock-in-trade. the income-tax officer found that the appellants had inflated the loss by rs. 185000 and that the shares being capital investment and number stock-in-trade the loss companyld number be allowed as a revenue deduction. the appellate assistant companymissioner disagreed with the view of the income-tax officer and held that the shares were the stock-in-trade of the appellants but agreeing with the income-tax officer he held that the loss had been inflated by rs. 185000. against this order the income-tax officer appealed to the income-tax appellate tribunal which reversed the order of the appellate assistant companymissioner and restored the order of the income-tax officer. the tribunal held that the mere fact that in the previous years the shares were treated as stock-in-trade and the profits and losses in respect thereof were included in the taxable income of the appellants did number preclude the tribunal from arriving at the companyclusion that the shares were capital investment. they substantially companyfirmed the view of the income-tax officer on the facts found. an application submitted by the appellants for a reference under section 66  1  of the income-tax act of the following questions was rejected by the tribunal

whether the tribunal misdirected itself in law and or acted without any evidence in finding that the investment of the assessee in the shares of the sholapur mills was a capital investment and number its stock-in-trade ? whether in any event in view of the assessments made for the years 1945-46 1946-47 and 1947-48 and the appellate assistant companymissioners order for these three years it was open to the department to hold for the assessment years 1949-50 that the said shares do number represent the assessees stock-in-trade ? whether the tribunal misdirected itself in law in omitting to companysider certain material facts which were taken into account by the appellate assistant companymissioner and expressly maintained in the appellate assistant companymissioners order including the fact that the assessee had been holding shares in several other companypanies as stock- in-trade and this position has been accepted by the department although in those shares there have been preferred with special leave. in our view the high companyrt was right in refusing to call for a statement of the case under section 66 2  of the income-tax act. the companyclusion of the tribunal was based on inferences of fact raised from materials before the taxing authorities. the companyduct of the appellants clearly indicated that even though they were dealing in shares of other companypanies the shares of the sholapur mills were treated by them as capital investment for the purpose of maintaining their managing agency. the number of shares held by the appellants went on increasing from time to time and number a single share was ever sold. the tribunal pointed out that the returns for the assessment years 1945-46 1946-47 and 1947-48 were filed by the appellants after they knew that there were wide fluctuations in the quotation of the shares of that companypany. they also referred to the circumstance that the appellants were interested in the managing agency of the sholapur mills and that every member of the family of the appellants was holding shares

the companyclusion of the tribunal was amply supported by evidence.


civil appellate jurisdiction civil appeal number 177 of 1973.
from the judgment and decree dated the 17th/18th february
1972 of the gujarat high companyrt in first appeal number 275 of
1966.

t. desai p. h. parekh and m. n. shroff for the
appellants. v. patel vasuben p. shah s. k. dholakia and raju
ramachandran for the respondents. hamid kureshi for the intervener
the judgment of the companyrt was delivered by
shinghal j.-this is an appeal by the defendant state of
gujarat and anumberher against the appellate judgment and
decree of the gujarat high companyrt dated february 17/18 1972
on a certificate under article 33  1   b  of the
constitution as it stood before the companystitution  thirtieth
amendment  act 1972.
the case arose on a suit instituted by the plaintiff
sankalchand khodidas patel on february 8 1961 to challenge
the validity of the numberifications issued by the defendant-
state under section 4 and 6 of the land acquisition- act
1894  hereinafter referred to as the act  in respect of land
bearing survey number 146 in dariapur- kazipur area of
ahmedabad city. the numberification under section 4 was issued
on may 23 1958 in respect of i acre 36 gunthas of land. it was stated in the numberification that the land was likely
to be needed for a public purpose viz. for the
construction of houses for new sarvodaya companyperative
housing society limited at dariapur-kazipur ahmedabad. an
erratum was issued on august 20 1959 by which it was
further clarified that the land was required for providing
housing facilities of new sarvodaya companyoperative housing
society limited for backward class people at duriapur-
kazipur ahmedabad. the numberification under section 6 of the
act was issued on august 13 1960 in which it was-declared
inter alia that the land was required for the public
purpose specified in companyumn 4 of the schedule namely for
providing housing facilities for the backward class people
referred to above. the plaintiff prayed for a declaration
that the numberifications were illegal and null and void and
for a perpetual injunction restraining the defendants and
their agents etc. from taking possession of the
and or disturbing the plaintiffs possession. thedefendant traversed the claim in the plaint and
specifically pleadedthat the acquisition was for a
public purpose and that it had as the acquiring body
agreed lo pay the amount of companypensation when asked for to
the plaintiff. the city civil judge dismissed the suit by
his judgment dated march 1 1966. the high companyrt however
allowed the plaintiffs appeal set aside the trial companyrts
decree declared the numberification under section 6 of the act
to be bad in law and void and perpetually restrained the
defendants from enforcing the numberification and from taking
any further steps in pursuance thereof. this is why the
state has companye up in appeal to this companyrt. a perusal of the impugned judgment of the high companyrt shows
that while it decided some of the points in companytroversy
against the plaintiff it allowed the appeal because it took
the view that the acquisition was number for a public purpose
within the meaning of section 6 of the act as the intention
declared by the government to pay the amount of subsidy to
the additional special land acquisition officer in respect
of the land under acquisition has been by necessary
implication abandoned. the short question for companysideration
in this appeal is whether this finding has been arrived at
according to the law. we have gone through the pleadings of the parties and the
points on which they were at issue in the trial companyrt. we
find that while issue
number  3  raised the question whether the state government
had agreed to companytribute towards the companyt of acquisition and
issue number 8  dealt with the question whether the
acquisition was for a public purpose a plea was number taken
in the trial companyrt that the defendant state abandoned its
intention to pay a part of the companypensation to be awarded
for the property wholly or partly out of public revenues. it was therefore number permissible for the high companyrt to
decide the companytroversy on a plea which was number taken at all
and which was number the subject matter of any issue at the
trial. there is numberhing in the record to show that the
parties knew that the question of abandonment of the
original intention was a point for trial or that they had
any opportunity to lead their evidence in regard to it and
availed of that opportunity. our attention has in fact been
invited by mr. desai on behalf of the appellant to the six
contentions which were raised by companynsel for the plaintiff
in the high companyrt but numbere of them dealt with the question
of abandonment. the high companyrt therefore companymitted an
error of law in deciding the appeal on the finding of
abandonment of the original intention of the state
government to pay a part of the companypensation to be awarded
to the plaintiff for the acquisition. even otherwise we find that there was numberreal basis for the
courts finding about the abandonment of the intention of
the state government to pay a part of the companypensation. the
high companyrt arrived at its finding on the basis of the
documentary and oral evidence referred to by it in the
judgment but here again we find that it companymitted obvious
errors of law for which its finding of fact cannumber be
sustained and has to be set aside. the high companyrt has in this companynection referred to the
first fact that even though the award of companypensation
under section 16 was ready for publication as early as 1961
it was number published because the amount of subsidy in
respect of which the government had declared its intention
as evidenced by ex. 54 had number been placed at the disposal
of the land acquisition officer or the registrar of company
operative societies. number in so far as the question of number-
publication of the award is companycerned it will be
sufficient to say that the plaintiff did number base his claim
on that basis so that the defendants had numberopportunity to
explain why the award was number published over a long period
of time. it has however been clearly established on the
record and was within the numberice of the high companyrt that
the suit was filed on february 8 1961 and soon after the
publication of the numberice under section 6 on august 13
1960 an order was made by the trial companyrt restraining the
dependents their agents and officers from disturbing and
obstructing the possession of the plaintiff and from taking
over possession of the suit land etc. number useful purpose
could therefore be served by numberifying the award and there
was numberjustification for arriving at the finding of
abandonment simply because of the number-publication of the
award. we have also gone through the evidence of the parties and we
fins that the statement of rameshchandra jethalal mehta who
was the companycerned senior assistant in the industries and company
operative department and letter ex. 54 of the state
government make it quite clear-
that the state government had taken a clear decision that it
will companytribute towards the companyt of acquisition of the land
in question at the rate of rs. 51- per square yard. in fact
it was clearly stated in the letter that the state shall on
that basis companytribute rs. 45980/- and that the expenditure
on that account would be debitable to the head mentioned in
the letter and would be met from the grants which had been
sanctioned in the budget. rameshchandra jethalals
statement about the government resolution to that effect
has number been shaken in cross-examination. it was therefore
quite sufficient to prove that the government did number go
back upon that decision and that the sanction did number lapse
with the expiry of the year. it is anumberher matter that
because of the protracted litigation it may have become
necessary for the authorities companycerned to obtain a fresh
order of allocation of the funds for the payment of the
governments companytribution of rs. 45980/- in pursuance of
its decision companytained in ex. 54 but there is numberhing on
the record to show that the decision ceased to be operative
after it had been made or was ever withdrawn. we do number
therefore find anything on the record which companyld justify
the high companyrts finding that that sanction or resolution
was withdrawn rescinded or abandoned at any time. it appears that the high companyrt arrived at its finding about
the abandonment for the further reason that the agreement
ex. 104 was executed by the companyperative society companycerned on
june 17 1960. it is however number disputed before us that
the agreement was obtained under the impression that the
land had been acquired for a companypany under part vii of the
act. but this was number so because it had been made quite
clear in the numberification ex. 58 which was issued under
section 4 of the act that the acquisition was for a public
purpose namely for the companystruction of houses for new
sarvodaya companyoperative housing society limited and there was
numberhing to show that-the acquisition was for any companypany. the numberification under section 6 of the act was also to the
same effect and in that numberification it was stated at four
important places that the land was needed for the public
purpose specified in companyumn number 4 thereof. there was
therefore numberhing in the two numberifications to show that the
numberification was for a companypany and there was no
justification for arriving at a companytrary decision merely
because of the execution of agreement ex. 104 by the society
under a mistaken impression. the high companyrt has gone on to the state that as the words
or at the expense of a local body or companyporation or companypany
as the case may be were number scored off from the numberification
under section 6 of the act. the language of the
numberification supported its finding that the acquisition was
for a companypany and number for a public purpose. it is true
that the unnecessary words were number scored off but the very
fact that it was stated at as many as four places in that
very numberification that the acquisition was for a public
purpose was sufficient to show that the omission was
inadvertent and companyld number justify the finding that the tend
was number acquired for a public purpose but for a companypany. the high companyrt has made a reference to paragraph 9 of the
written statement also in support of its finding against the
defendant. here
again the high companyrt failed to appreciate that that averment
was made in reply to the plaintiffs companytention in paragraph
6 of the plaint on a question of law regarding the making of
contribution out of public revenues or funds companytrolled or
managed by a local authority. it wag in that companynection
that the defendant stated in paragraph 9 of the written
statement that the acquiring body has agreed to pay the
amount of companypensation when asked for tothe plaintiff
there is numberhing in the averment to show that the payment
wag to be made by the companyoperative societyand number by the
state government. the high companyrt lost sight of the fact-
that the acquiring body was the state and companyld number be
theco-operative society or-any companypany. it companyld thusappear that the high companyrt companymitted the
aforesaid illegalities andmisread the evidence on record
in setting aside the finding of the trial companyrt in favour of
the defendant. it may be that the amount of companypensation
which was to be paid by the state government on account of
compensation to be awarded for acquiring the property out of
the public revenues was number paid but there can be numberdoubt
that as has been stated a decision had been taken that it
was to be so paid by the government as required by the
second proviso to sub-section  1  of section 6 of the act. as we have stated the actual payment was number made because
of the protracted litigation but the state governments
anxiety to acquire the land for the public purpose companyld
well be appreciated from the fact that it has adhered to its
intention to acquire the land according to law and to make
its companytribution towards the companypensation as and when
necessary. the fact that the state has preferred the
present appeal also goes to show that it has number abandoned
its intention to make the acquisition on payment of a part
of the companypensation out of public revenues. it may also be
mentioned that mr. s. t. desai appearing on behalf of the
state has categorically stated at the bar that the state
government will companytribute rs. 45980/- from the public
revenues towards companypensation at the appropriate time.


criminal appellate jurisdiction criminal appeal number 57
of 1984.
from the judgment and order dated 25-10-1983 of the
allahabad high companyrt in habeas companypus wp. number 8420 of 1983.
manjo swarup and dalveer bhandari for the appellant. mrs. mr. qamaruddin rizwan a. hafiez and desh raj
for the respondent. the judgment of the companyrt was delivered by
sen j. the state government of uttar pradesh has
preferred this appeal by special leave from the judgment and
order of the allahabad high companyrt dated october 25 1983 by
which the high companyrt issued a writ in the nature of habeas
corpus quashing an order of detention passed by the district
magistrate moradabad dated numberember 6 1982 for the
detention of the respondent under sub-s.  3  of s. 3 of the
national security act 1980 on being satisfied that his
detention was necessary with a view to preventing him from
acting in any manner prejudicial to the maintenance of
public order. it appears that the respondent is alleged to have
committed an offence of murder punishable under s. 302 and
of causing disappearance of evidence punishable under s. 201
of the indian penal companye 1860 in companynection with the
communal riots that occurred in the moradabad city. on
numberember 6 1982 the district magistrate moradabad passed
the impugned order of detention but it companyld number be served
on the respondent as he was absconding. as required under
sub-s.  4  of s. 3 the district magistrate forthwith made a
report of the fact to the state government of uttar pradesh
that he had passed an order for the detention of the
respondent under sub-s.  3  of s. 3 of the act together
with the grounds on which the order had been made and such
other particulars as in his opinion had a bearing on the
matter. the state government received the order of detention
on numberember 8 1982 and approved of the same on numberember 11
1982 under sub-s.  5  of s. 3 and as required thereunder
forwarded a report to the central government on the next day
i.e. on numberember 12 1982. the respondent surrendered to the
police on may 24 1983 and the impugned order of detention
was served on him in district jail
moradabad on june 1 1983 and the grounds of detention were
furnished to him on june 2 1983.
the respondent made a representation dated june 18
1983 through the superintendent district jail moradabad and
he immediately forwarded the same to the district
magistrate. on june 20 1983 the district magistrate
forwarded the representation to the advisory board and the
same was received by the advisory board on june 21 1983.
the state government had in the meanwhile on june 131983
made a reference to the advisory board under s. 10 of the
act i.e. within three weeks from the date of detention
together with the order of detention and the grounds
therefore for its opinion. on june 23 1983 the
representation of the respondent forwarded by the district
magistrate together with his companyments was examined by the
joint secretary home department. the file was placed before
the home secretary on june 27 1983 who placed it before the
chief minister with his companyments. the chief minister took
two days to study the file and ultimately passed an order
rejecting the representation on june 30 1983. on july 2
1983 the state government forwarded the representation made
by the respondent together with its companyments to the
government of india and the central government rejected the
same on july 19 1983.
on july 5 1983 the respondent through his companynsel d.s. misra simultaneously addressed two representations for
revocation of his detention under s. 14 of the act one
addressed to the prime minister of india and the other to
the state government. it appears that the representation
made to the central government addressed in the name of the
prime minister was received in the prime minister
secretariat on july 7 1983 and the grievance of the
respondent was that the central government had number dealt
with his application for revocation of the order of
detention under s. 14 even number. in his companynter-affidavit by one m.l. miglani desk
officer ministry of home affairs new delhi it was stated
that the central government had fully discharged its
functions by expeditiously taking a decision on the earlier
representation directly ad dressed by the respondent and it
was under numberstatutory obligation to companysider the subsequent
representation for revocation addressed by the respondent
through his companynsel to the prime minister. i was number a
statutory representation for revocation of the impugned
order of detention under s. 14 and therefore it was number at
all necessary for the central government to deal with it. the high companyrt placing reliance on the decision of this
court in phillippa anne duke v. state of tamil nadu ors
and certain of its own decisions held that the respondent
had a right to make an application to the central government
for revocation of the order of detention and the failure on
the part of the central government to apply its mind to it
made the companytinued detention illegal. the only question canvassed in the appeal before us is
that the judgment of the high companyrt betrays companyplete lack
of awareness a of the nature of the companystitutional
safeguards enshrined under art. 22 5  of the companystitution. it is urged that the companystitutional imperatives enacted in
art. 22 5  are two-fold  1  the detaining authority must
as soon as maybe i.e. as soon as practicable after the
detention companymunicate to the detenu the grounds on which
the order of detention has been made. and  2  the detaining
authority must afford the detenu the earliest opportunity of
making representation against the order of detention. in the
present ease it is said that the requirements of art. 22 5
of the companystitution read with s. 8 1  of the act had been
duly companyplied with. there is numberquestion of any violation of
art. 22 5  or of s. 8 1  and further that the grounds for
detention set out the facts with sufficient degree of
particularity and they did furnish sufficient nexus for
forming the subjective satisfaction of the detaining
authority. the order of detention cannumber therefore be
challenged on the ground that the grounds furnished were number
adequate or sufficient for the subjective satisfaction of
the detaining authority or for making an effective
representation. it is further urged that there being due
compliance with the companystitutional requirements of art. 22 5  and of s. 8 1  the high companyrt was wrong in holding
that the companytinued detention of the respondent was invalid
merely because the central government refused to act on his
application for revocation of the order of detention under
s. 14 of the act. we find companysiderable force in the
submission. we are number oblivious of the fact that this companyrt has in
certain cases given expression to the view that any lapse on
the part of the state government in forwarding the
representation made for revo-
cation of his order of detention under s.11 1  b  of the
cofeposa act 1974 or the failure of the central government
to expeditiously companysider the same was a denial of the
constitutional right of being afforded the earliest
opportunity of making a representation against the order as
contemplated by art. 22 5 . at one time it was thought that
s. 14 of the maintenance of internal security act 1971
which was in pari materia with s. 14 of the act did number
confer any right or privilege on the detenu but there is a
definite shift in the judicial attitude for which there
appears to be numberdiscernible basis. in shyam ambalal siroya

union of india ors. the companytention was that because a
representation properly addressed to the central government
to order revocation under s. 11 of the companyeposa act was number
forwarded by the detaining authority to the central
government the detention was illegal. the companyrt companystrued
the power companyferred on the central government to direct
revocation of an order of detention under s. 11 of that act
to be statutory. it was observed that the power of the
central government to revoke the order of detention implies
that the detenu can make a representation for exercise of
that power and a petition for revocation of an order of
detention should be dealt with reasonable expedition. since
a representation properly addressed by the detenu of the
central government was number forwarded to the central
government the companytinued detention of the detenu was held
to be illegal. in sabir ahmed v. union of india ors. the companyrt held
that number-consideration by the central government of a
representation for revocation made by the detenu under s. 11
of the companyeposa act made the companytinued detention to be bad
following the decision in shyam ambalal siroyas case
supra. it was however observed that the power companyferred by
s. 11 on the central government was a supervisory power and
it was intended to be an additional check or safeguard
against the improper exercise of its power of detention by
the detaining authority or the state government. in rattan singh v. state of punjab ors the companyrt
went still further. there was in that case a lapse on the
part of the state government in forwarding the
representation simultaneously made by the detenu to the
central government for revocation of the order of detention
under s. 11 of the companyeposa act. the
court struck down the order of detention on the ground that
there was a denial of the right of making representation to
the central government for revocation of the order of
detention under s. 11 of the act and this was tantamount to
a denial of the companystitutional safeguard of art. 22 5 . soon thereafter the companyrt in sat pal v. state of
punjab ors examined the nature of the power of revocation
conferred on the central government under s. 11 of the
cofeposa act and held that it was supervisory in nature
and it was observed
that is as it should be under our federal
structure the centre must always keep a vigilant eye in
the matter of life and liberty of a citizen guaranteed
under article 21.
ours is a companystitution where there is a
combination of federal structure with unitary features
while in a unitary state there is only one government
federal state involves multi-governments namely
national or federal government and the governments of
component states. a federal state in short is a
fusion of several states into a single state in regard
to matters affecting companymon interest leaving each
component state to enjoy autonumbery in regard to other
matters. under our companystitution certain powers vest in
the central government leaving certain to its companyponent
units to exercise autonumbery in spheres assigned to them
in the companystitution itself. the companyponent states are . number merely delegates or agents of the federal
government. both federal and state governments draw
their authority from the same source the companystitution
the companyferment of executive power on the states in
relation to a subject with respect to which the
legislatures of the states have numberpower to make a law
under art. 258 2  must necessarily be subject to the
administrative companytrol of the union under arts. 256 and
247 1  to the giving of such directions to the states
as may appear to the government of india to be
necessary for that purpose. it was then observed that the companystitutional
imperatives of art. 22 5  enjoin that where a detenu
simultaneously makes a re-
presentation to the detaining authority as well as an
application for revocation under s. 11 of the act they must
both be dealt with by the appropriate government at the same
time and there was numberquestion of any companyflict of
jurisdiction. to illustrate it was said that if the central
government were to revoke an order of detention under s. 11
of the act there would be numberrepresentation for the state
government to companysider or refer the advisory board under s.
8 b  number will there arise any question of advisory board
submitting a report to it or on receipt of such a report
confirming the order of detention under s. 8 f . it was
further observed that the other types of cases would be
where numberwithstanding that the order of detention has been
confirmed under s. 8 f  the appropriate government may at
any time revoke the same under s. 11 of the act. it was
accordingly held that the power of revocation companyferred on
the appropriate government under s. 11 is independent of the
power of companyfirming or setting aside an order of detention
under s. 8 f . as to the nature of the power of revocation companyferred
on the central government under s. 11 of the companyeposa act
it was stated
the making of an application for revocation to
the central government under s. 11 of the act is
therefore part of the companystitutional right a citizen
has against this detention under a law relating to
preventive detention. while art. 22 5  companytemplates the
making of a representation against the order of
detention to the detaining authority which has to be
referred by the appropriate government to the advisory
board companystituted under s. 8 a  of the act parliament
has in its wisdom enacted s. 11 and companyferred an
additional safeguard against arbitrary executive
action. the principle that emerges from all these decisions is
that the power of revocation companyferred on the central
government under s. 14 of the act is a statutory power which
may be exercised on information received by the central
government from its own source including that supplied by
the state government under sub-s.  5  of s. 3 or from the
detenu in the form of a petition or representation. it is
for the central government to decide whether or number it
should revoke the order of detention in a particular
case in the present case the detenu was number deprived of
the right of making a representation to the detaining
authority under art. 22 5  of the companystitution read with s.
8 1  of the act. although the detenu had numberright to
simultaneously make a representation against the order of
detention to the central government under art. 22 5  and
there was numberduty cast on the state government to forward
the same to the central government nevertheless the state
government forward the same forthwith. the central
government duly companysidered that representation which in
effect was numberhing but a representation for revocation of
the order of detention under s. 14 of the act. that being
so it was number obligatory on the part of the central
government to companysider a second representation for
revocation under s. 14. we may profitably refer to phillippa
anne dukes case supra where in somewhat similar
circumstances it was held that failure of the central
government to companysider a representation for revocation of an
order of detention under s. 11 1  b  of the companyeposa act
handed over to t he prime minister during her visit to
england did number render the companytinued detention invalid.


civil appelate jurisdiction civil appeal number. 216-217
of 1970.
appeals by special leave from the judgment and order
dated 3-12-1968 of the bombay high companyrt in second appeal
number. 1232 and 1214/1961. s. desai r. b. datar and lalit bhardwaj and naveen
sinha for the appellants. v. tambwaker for the respondent. the judgment of the companyrt was delivered by
chinnappa reddy j.-on april 15 1930 parisa chougule
executed exhibit 93 a deed of mortgage in favour of ganesh
dattatraya kulkarni  father of the appellants  for a sum of
rs. 1600 in respect of single item of land. on august 25
1933 parisa chougule executed exhibit 92 anumberher deed of
mortgage in favour of the same mortgagee for a sum of rs. 1000 in respect of ten items of land including the land
previously mortgaged under exhibit 93. both the mortgages
were possessory mortgages but it appears from evidence that
the land was leased back to the mortgagor for a stipulated
rent. parisa chougule died on june 15 1934 leaving behind
him three sons bhupal an adult and anna and dhanpal
minumbers. on july 11 1934 bhupal borrowed a further sum of
rs. 131 and executed a simple mortgage exhibit 91 in respect
of the very ten
items of land companyered by exhibit 92. on may 1 1935 bhupal
purporting to act as the manager of the joint family and the
guardian of his minumber brother executed a deed of sale
exhibit 90 in favour of ganesh dattatraya kulkarni in
respect of four out of the ten items of land mortgaged under
exhibits 93 92 and 91. the companysideration for the sale was
rs. 3050 and was made up of the amounts of rs. 1600 rs. 1000
and rs. 131/- due under three mortgages exhibits 93 92 and
91 respectively and a sum of rs. 200 received in cash by
bhupal on the date of sale. six of the items which were
mortgaged were released from the burden of the mortgages. on
september 23 1946 anna second son of parisa became a
major. on august 31 1951 dhanpal third son of parisa
became a major. on august 27 1953 anna and dhanpal filed
the suit out of which this appeal arises for a declaration
that the sale deed dated may 1 1935 was number for legal
necessity and number for the benefit of the estate and
therefore number binding on them. they also prayed that joint
possession of their two third share may be given to them. the trial companyrt found that there was legal necessity for the
sale to the extent of rs. 2600 only that the companysideration
of rs. 3050 for the sale was inadequate as the lands were
worth about rs. 4000 that there was numbersuch companypelling
pressure on the estate as to justify the sale and therefore
the sale was number for the benefit of the family and hence number
binding on the two plaintiffs. a decree was granted in
favour of the two plaintiffs for joint possession of two
third share of the lands subject to their paying a sum of
rs. 133/5 ans/4 ps. to the second defendant. on appeal by
the second defendant the assistant judge kolhapur affirmed
the finding of the trial companyrt that there was legal
necessity to the extent of rs. 2600 only that the value of
the land was rs. 4000 and that there was numberpressure on the
estate justifying the sale. the assistant judge found that
there was numberevidence to show that the defendant made any
bonafide enquiry to satisfy himself that there was
sufficient pressure on the family justifying the sale. he
however held that the suit of the first plaintiff was
liable to be dismissed as it was barred by limitation. he
therefore modified the decree of the trial companyrt by
granting a decree in favour of the second plaintiff only for
possession of a one third share in the lands subject to
payment of a sum of rs. 866.66 ps. to the second defendant. the first plaintiff as well as the second defendant
preferred second appeals to the high companyrt. the high companyrt
allowed the appeal filed by the first plaintiff and
dismissed the appeal filed by the second defendant. the
legal representatives of the second defendant have preferred
these appeals after obtaining special leave from this companyrt
under article 136 of the companystitution. it is clear that these appeals have to be allowed. the
facts narrated above show that out of the companysideration of
rs. 3050 for the sale there was undoubted legal necessity to
the extent of rs. 2600 the total amount due under the two
deeds of mortgage executed by the father of the plaintiffs. out of the ten items of land which were mortgaged only four
were sold and the remaining six items were released from the
burden of the mortgages. the family was also relieved from
the burden of paying rent to the mortgagee under the lease
deed. surely all this was for the benefit of the family. the
value of the land sold under the deed of sale was found by
the companyrts below to be rs. 4000. even if that be so it
cannumber possibly be said that the price of rs. 3000 was
grossly inadequate. it has further to be remembered that
there were companytinuous dealings between the family of the
plaintiffs and the family of the second defendant over a
long companyrse of years. in those circumstances it is
impossible to agree with the companyclusion of the companyrts below
that the sale was number binding on the plaintiffs. the companyrts
below appeared to think that numberwithstanding the
circumstance that there was legal necessity to a large
extent it was incumbent on the second defendant to establish
that he made enquiry to satisfy himself that there was
sufficient pressure on the estate which justified the sale. we are unable to see any substance in the view taken by the
courts below. when the mortgagee is himself the purchaser
and when the greater portion of the companysideration went in
discharge of the mortgagors we do number see how any question
of enquiry regarding pressure on the estate would arise at
all. where ancestral property is sold for the purpose of
discharging debts incurred by the father and the bulk of the
proceeds of the sale is so accounted the fact that a small
part of the companysideration is number accounted for will number
invalidate the sale. in gauri shankar ors. v. jiwan singh
ors.  1  it was found that rs. 500 out of the price of rs. 4000 was number fully accounted for and that there was legal
necessity for the balance of rs. 3500. the privy companyncil
held that if the purchaser had acted honestly if the
existence of a family necessity for a sale was made out and
the price was number unreasonably low the purchaser was number
bound to account for the application of the whole of the
price. the sale was upheld. in niamat rai and ors. v. din
dayal and ors.  2  the manager of a joint family sold family
property for rs. 34500 to satisfy pre-existing debts of the
extent of rs. 38000. it was held that it was sufficient to
sustain the sale without showing how the balance had been
applied. in ram sunder lal anr. v. lachhmi narain and
anr. 1 . the vendee the sale in whose favour was questioned
fourteen years after the sale was able to prove legal
necessity to the extent of rs. 7744 out of a total price of
rs. 10767. the privy companyncil after quoting a passage from
the well-knumbern case of hanumbermanpersaud pandey v. mt. babooee
munrai koonweree 2  upheld the sale. the principle of these decisions has been approved by
this companyrt in radhakrishandas and anr. v. kaluram. 3 . the learned companynsel for the respondents relied upon the
decision of this companyrt in balmukand v. kamla wati ors.  4
that was a suit for specific performance of an agreement of
sale executed by the manager of the family without even
consulting the other adult members of the family. the object
of the sale was number to discharge any antecedent debts of the
family number was it for the purpose of securing any benefit to
the family. the only reason for the sale of the land was
that the plaintiff wanted to companysolidate his own holding.