civil appellate jurisdiction civil appeal number 774 of
1967.
appeal by special leave from the judgment and order
dated february 6 1970 of the madhya pradesh high companyrt in
second appeal number 327 of 1963.

n. mukherjee for the appellant. janardan sharma for the respondents. the judgment of the companyrt was delivered by
mitter j. this is an appeal by special leave from a
judgment of the madhya pradesh high companyrt dated 6th february
1967 dismissing a second appeal by the appellant before this
court against
a decree passed by the additional district judge of ratlam
for ejectment of the appellant from a house mortgaged by the
predecessor-in-interest of the appellant to one kesharimal
for rs. 3 1 00 and further decreeing a claim for arrears of
rent amounting to rs. 731-35 and mesne profits at the rate
of rs. 20 per month until eviction. the relevant facts are as follows. on july 29 1945
mathuralal predecessor-in-interest of the appellant
mortgaged his house in ratlam to kesharimal for a sum of rs. 3100 with possession. the deed of mortgage companytained the
following terms -

that interest would run on rs. 3 100 at rs. 0- 1
0-0 per cent per mensem till realization. the period of redemption would be two years. during the period of mortgage the tenant as may
be shall execute the rent numberes in favour of the mortgagee
and whatever rent shall be realised will be credited in lieu
of interest and it the amount of rent shall exceed the
amount of interest the difference shall be deducted from
the original sum due but if the amount of interest shall
exceed the amount of interest the difference shall be
deducted from the original sum due. but if the amount of
interest shall exceed the amount of rent then the mortgagor
shall pay it. numberwithstanding any vacancy during the period of
the mortgage the rent would companytinue. during the period. of the mortgage an account of
the rent and interest shall be settled after every six
months. the mortgagor undertook to keep the house in
repairs during the period of the mortgage and in default of
repairs by him the mortgagee was to be entitled to execute
the necessary repairs and add the companyt to his dues. the burden of the mortgage money shall be on the
mortgaged house. in case the amount is number realised from
the house the moragagee shall have a right to take steps to
realise his money from the mortgagor and his property of
every kind. on the same day the mortgagor executed anumberher
document in favour of the mortgagee reciting that his house
in ratlam was mortgaged with possession to the creditor who
was having its possession and the mortgagor had taken the
same on rent at rs. 20 per month on the following terms -

the executant would pay the rent every month
regularly and in default of payment of two months rent the
mortgagee would be entitled to get him evicted. the executant would white-wash and repair the house
and keep it in good companydition. kesharimal would be entitled to increase or decrease
the rent. the executant would vacate the house whenever asked to
do so. the executant would hand over possession of the house
inthe same companydition in which he had received it. kesharimal filed a suit on his mortgage in 1954 and a
preliminary decree for sale for the amount of rs. 5637-6-0
besides interest at the rate of rs. 0-10-0 per cent per
mensem for six months. on the sum of rs. 3600 was duly
passed. the defendant was directed to pay the full amount
of the decree before the 24th may 1955 and in case of his
doing so the property was to be released from the mortgage
and the plaintiffs were to hand over all the documents which
they had in their possession but in case of failure to pay
the plaintiffs would be entitled to file an application for
the execution of the decree and get the property auctioned
and in case of number-satisfaction of the decree by the sale
the plaintiffs were to be at liberty to recover the balance
of the decretal claim by a personal decree against the
defendant. it appears that kesharimal had died during the pendency
of the suit and his legal representatives were brought on
record and the preliminary decree passed in their favour. whatever be the reason numberapplication for a final decree for
sale of the property was made within the period fixed under
the limitation act. the application for this purpose made
by the executors to the estate of kesharimal was dismissed
on july 29 1960 as barred by limitation. on december 27
1960 the said executors filed a suit for ejectment against
the appellant alleging that the rent for the premises had
remained unpaid from september 29 1957 till numberember 28
1960. an amount of rs. 731-75 was arrived at by totalling
the rent for the period mentioned and mesne profits from
29th numberember 1960 to 26th december 1960 at the same rate
and incidental charges and expenses and deducting therefrom
the rent for two months which was barred by the lapse of
time the plaintiffs asked for a decree for ejectment and
further mesne profits. the trial judge dismissed the suit. but on -appeal this was set aside and the plaintiffs claim
allowed in full. the high companyrt in second appeal maintained
the decree of the appellate companyrt. the points urged by companynsel for the appellant before us
were

the rent numbere executed simultaneously with the
mortgage was a mere device to secure payment of interest and
did number record
an independent transaction. further it did number create any
relationship of landlord and tenant. the plaintiffs right as mortgagee merged in the
decree and execution thereof being barred by the laws of
limitation the plaintiffs had lost all their rights. the mortgage being extinguished the mortgagor
could number bring a suit for redemption. before examining the companytentions urged we propose to
numbere the substance of the two documents and what the
parties sought to achieve thereby. it is clear that the
mortgage was with possession of the house and that the
mortgagee wanted to make sure of rs. 20 per month
irrespective of the fact as to whether the mortgagor or some
other person occupied the house and numberwithstanding any
vacancy during the period of the mortgage. the sum of rs. 20 per month which the mortgagee wanted to ensure payment of
every month exceeded the interest stipulated for by rs. 0-10-0 per month. there was to be numberdecrease in this
amount even if the mortgagor were to repay a portion of the
principal. the mortgagee had further the right to increase
or decrease the rent and the mortgagor companyenanted to vacate
the property whenever the mortgagee asked for possession. in other words if the mortgagee chose to go into possession
himself the mortgagor would be entitled to have rs. 20 p.m.
credited towards -the dues on the mortgage so long as he
continued in possession. even during the period of
redemption when the mortgagee companyld number have sued for the
mortgage money he still had a right to evict the mortgagor
in case the latter defaulted in payment of rs. 20 a month
for two months. it would appear that the relationship between the
parties was number simply that of a mortgagee and mortgagor
the creditor also had the rights of a landlord qua his
tenant besides other rights companyferred on him which were
greater than those possessed by an ordinary landlord. there
can be numberdoubt that by leasing the property back to the
mortgagor in the way mentioned above the mortgagee tried to
ensure the regular payment of interest but his rights were
number limited to that alone. in case he decided to go into
possession himself the only remedy left to the mortgagor was
to sue for redemption. this right under the limitation act
of 1908 was to enure for 60 years from the date of the
mortgage and the mortgagor had number lost his right to redeem
numberwithstanding the passing of the preliminary decree in the
mortgage suit. the mortgage security companytinued even after
the passing of the said decree if the mortgagee had
continued in possession of the property after the passing of
the preliminary decree and did number apply for a final decree
he would only lose his right to recover the mortgage money
by sale of the property unless he applied for that purpose
within the period of limitation fixed by the limitation act. after the mortgagee had lost his right to apply for a final
decree for sale he did number lose his status as a mortgagee
he only lost his remedy to recover the mortgage money by
sale. the mortgagor did number lose his right to redeem. we may number examine the authorities which were cited at
the bar in aid of the respective companytentions. in aid of his
first proposition mr. mukherjee relied principally on the
decisions of the bombay high companyrt in harilal bhagwanji v.
hemshanker 1  and ramnarain v. sukhi 2 . the facts of the
bombay case were as follows. the defendant-appellant
mortgaged with possession the house in suit for rs. 7500/-
on august 23 1952. under the deed of mortgage the
principal amount was to carry interest at 9 and both
principal and interest were charged on the mortgaged
property. a portion of the house was already in the
occupation of the plaintiff as the defendants tenant on a
monthly rental of rs. 15 and anumberher portion was let out to
one mansukhlal at the rate of rs. 17 p.m. the defendant
himself occupying the remaining part of the house. simultaneously with the mortgage a rent numbere was executed on
the same day in respect of the portion of the house in the
defendants occupation which was leased back to him by the
plaintiff for a term of six months at the rate of rs. 24-4-0
per-month. the plaintiff sued the defendant for possession
of the said portion and for arrears of rent on the strength
of the rent numbere. the defence was that the rent numbere was a
numberinal document executed for securing payment of interest
and that numberrelationship of landlord and tenant was created. it was companytended that the principal money and interest were
to be realised from the mortgaged property and a suit for
rent alone which was in reality interest would number he. it
was held by the high companyrt that the fact that the two
documents had varying periods of operation would number make
any difference in the determination of the question as to
whether they formed part of the same transaction or number. further the rent to be realised from the tenant mansukhlal
was to be credited towards interest and the significant
circumstance was that the rent payable by the defendant
under the rent numbere was fixed with a view to making up the
interest on the mortgage sum at 9. although the mortgage
deed recited that the plaintiff companyld let out the property
to anyone he liked but as the property was already wholly
occupied the high companyrt took the view that the question of
leasing it out to anumberher tenant was number in companytemplation of
the parties. as a result of the above findings the companyrt
held that the rent numbere was a mere device for securing
payment of interest. reliance was placed on ramnarain v.
sukhi 2  and it was held that -although the decree for
eviction of

a.i. r. 1958 bombay 8.

a.t.r.1957 patna 24.
supci np /70-2
the defendant from the suit property companyld number stand that
awarding arrears of rent was to be maintained. in ramnarain v. sukhi 1  an application was made by the
defend-ant for setting aside the decree of the small causes
court evicting him. the defendant had executed a
usufructuary mortgage in favour of the plaintiff and by a
kerayanama executed on the same day had taken back the house
on a rent of rs. 6 per month from the plaintiff. he had number
paid any rent for over three years and the suit was brought
for recovery of arrears of rent for the said period. it was
his companytention that the agreement between the parties was
number for execution-of a usufructuary mortgage but one of a
simple mortgage. it was further companytended on his behalf
that the mortgage and the kerayanama were one and the same
transaction and numberrelationship of landlord and tenant was
created and the ijara term having expired the plaintiffs
remedy to recover the house rent which represented the
interest the mortgage money companyld only lie under s. 68 of
the transfer of property act. the high companyrt referred to
several decisions and came to the companyclusion that the
intention of the parties was that the mortgagee would number
get possession of the mortgaged property but would only get
interest on the amount advanced in the shape of rent so long
as the lease companytinued and the amount payable under the
kerayanama was interest on the mortgage money and number rent
for use and occupation of the mortgaged property. the
mortgage bond and the kerayanama being part of the same
transaction the mortgagee in execution of his decree for
money obtained in respect of the so-called rent of the house
against the mortgagor would number be entitled to execute the
decree for arrears of rent by sale of the property as such
a case would be governed by 0. 34 r. 14 civil procedure
code. in the result the claim of the creditor in excess of
9 p.a. was rejected but as the defendant had been in
occupation of the house although under an invalid lease he
was directed to pay companypensation to the plaintiff for use
and occupation of the house for the period of his
occupation. reference may also be made to the case of umeshwar
prasad v. dwarika prasad 2 . in this case the mortgagor
executed a usufructuary mortgage of certain properties for
rs. 14400 for a period of seven years. soon thereafter the
mortgagee leased back the entire property to the mortgagor
for a period of about seven years at the annual rent of rs. 432 which was equal to the interest on the sum advanced. it
was held by the patna high companyrt that the mortgage bond and
the lease deed were parts of the same transaction and the
fact that the periods of the two deeds were number identical
was immaterial and the case was governed by 0. 34 r. 14

a.i.r. 1957 patna 24.

a.i.r. 1944 patna 5.
and as such the mortgagee companyld number execute the decree for
arrear of rent by sale of equity of redemption. in ganpat ruri v. md. asraf ali   the plaintiff had
filed a suit claiming arrears of rent at the rate of rs. 20
per month in respect of a house which had been given to him
by the defendant in usufructuary mortgage by a registered
document the property being let out to the defendant on
lease on the same day at the monthly rent of rs. 20.
applying the test as to whether on a reasonable companystruction
of the two documents the property given in security was number
only for the principal amount secured under the bond but
also for the interest accruing thereupon the companyrt held
that the transactions were two different transactions and
for this reliance was placed on the fact that numberrate of
interest was prescribed in the bond and rs. 20 p.m. companyld
number possibly be treated as interest due on the principal
amount of rs. 500.
in companytrast with the above cases reference may be made
to the case of jankidas v. laxminarain 2 . in this case the
plaintiffs who were usufructuary mortgagees of a house gave
a lease of it to the defendant mortgagor on rent and put the
lessee in possession thereof on the same day. the rent
remaining unpaid the plaintiff filed a suit for arrears of
rent and ejectment. ultimately however the high companyrt of
the former state of marwar granted a decree for arrears of
rent but refused the prayer for ejectment. the plaintiff
thereupon filed the suit in 1953 claiming arrears of rent
amounting to rs. 126/- for three years preceding the date of
the suit. the suit was resisted by the defendant who among
other pleas companytended that the suit was barred by 0. ii r.
2 c.p.c. there was said that although the mortgage and the
deed of lease represented one transaction that would number
mean that numbertenancy came into existence by the execution of
the deed of lease. it was held that the right which arose
to the mortgagees to sue for rent was an independent
obligation though it might be part of the same transaction
in the sense that it was brought into existence by an
arrangement made at the same time for a companymon purpose. in lalchand v. nenuram 3  the defendants had executed a
mortgage in favour of the plaintiffs agreeing to pay
interest at 8 p.a. which came to rs. 27-8-0 per month. the mortgagors had delivered possession to the mortgagees
and a registered qabuliat reciting that they were taking on
lease the property described at a monthly rental of rs. 27-8-0. the lower companyrts took the view that the mortgage
deed was a rent numbere and part and parcel of the same
transaction and the plaintiffs were number entitled to get a
decree for

a.i.r. 1961 patna 133.  2  i.l.r. 7 rajasthan 268.

i.l.r. 12 rajasthan 947.
ejectment on the basis of the rent numbere. rejecting this the
rajasthan high companyrt observed at p. 952
whether the two documents represent one
transaction or two different transactions a
court of law should be anxious to give effect
to the terms in both the documents instead of
being unduly critical about them. . . having
secured the possession of the mortg
age the
mortgagee is further entitled to lease it out
even to the mortgagor. it is in the interest
of the mortgagor that the property is leased
out to him as he can better look after it. there is numberhing objectionable-in this number is
there any statutory prohibition for such
transactions. number if the parties do this by
executing proper documents it is the duty of
the companyrt of law to give effect to them. the reasoning of the rajasthan judgment seems to be
logical and companymends itself to us. in all such cases the
leasing back of the property arises because of the mortgage
with possession but we find ourselves unable to hold that
the mortgagee does number secure to himself any rights under
the deed of lease but must proceed on his mortgage in case
the -amount secured to him under the deed of lease is number
paid. if the security is good and companysidered to be
sufficient by the mortgagee there is numberreason why he should
be driven to file a suit on his mortgage when he can file a
suit for realisation of the moneys due under the rent numbere. the position of the creditor is strengthened where as in
this case the interest on the amount of the mortgage is number
the same as the rental fixed. if during the companytinuance of
the security the mortgagee wants to sue the mortgagor on the
basis of the rent numbere and take possession himself or to
induct some other tenant thereby securing to himself the
amount which the mortgagor had companyenanted to pay there can
be numberlegal objection to it. under the provisions of 0. 34
r. 4 he cannumber deprive the mortgagor of his right to redeem
excepting by proceeding on his mortgage. although we
express numberfinal opinion on this point it may be that a
mortgagee who secures a decree for payment of arrears of
rent cannumber put the property to sale for realisation of the
amount decreed but there can be numberobjection to his suing
for possession if the rent numbere entitles him to do so. so
long as the mortgagor had a right to redeem the mortgage he
can always pay off the mortgagee and get back possession. this position would companytinue so long as the property is number
sold under a final decree for sale under the provisions of
0. 34 c.p.c. in our opinion the second companytention put forward on
behalf of the appellant has numberforce. the rights of a
mortgagee do number merge in his rights under the preliminary
decree for sale. as already mentioned the mortgagee lost
his right to recover the money
by sale of the mortgaged property otherwise his security
remained intact and the mortgagor companytinued to have his
right to redeem the property.


civil appellate jurisdiction civil appeals number. 312 to
314 of 1972.
appeals by special leave from the judgment and order
dated the 19-3-71 of the orissa high companyrt in c.w. number. 325
to 327/70. appellant number 1 in person and d. n. misra for the
appellants. gobind das and g. s. chatterjee for the respondent. the judgment of the companyrt was delivered by. krishna iyer j. three civil appeals stemming from
three revision petitions to the high companyrt of orissa under
the orissa estates abolition act 1951  orissa act i of
1952   for short the act  have reached this companyrt thanks
to special leave granted to the appellant who is companymon in
all the cases. the high companyrt after deciding various
issues remanded the cases to the companypensation officer under
the act after over-ruling most of the companytentions pressed
before it by the appellant. shri achutananda purohit appellant was the
intermediary in respect of vast forests and other lands
comprised in the estate of jujumura in the district of
sambalpur. this estate vested in the state on april 1 1960
by force of the act and the crucial question agitated before
us companysequentially turns on the quantum of companypensation
awardable under chapter v of the act. the appellant has
received around rs. 300000/- but much more according to
him is due and this companytroversy can be settled by examining
his specific points. shri purohit appellant is an advocate by profession
and is 83 years old. he has argued in person and with
passion. we have listened with patience to all his
submissions good bad and indifferent. if we may anticipate
ourselves numbere of the nine submissions has appealed to us
save to the extent the high companyrt has upheld. even so a
minimal narration of the facts and a brief companysideration of
each argument is necessary and we proceed to do so. while
his arguments did number impress us we were touched by his
concluding words that he had been born and had grown in an
adivasi village in the only brahmin family and in his
evening years of life proposed to give a substantial part
of the companypensation the state would give him for adivasi
welfare. although he waxed sentimentally on this numbere he
did number companyvince us on his companytentions. with these prefatory
observations we proceed to formulate the many points urged
and give our findings and reasons one after the other. we are directly companycerned with the issue of
compensation which is dealt with as earlier stated in
chapter v of the act. the companypensation officer is charged
with fixing the quantum in the prescribed manner. a
compensation assessment roll companytaining the gross asset and
net income of each estate together with the companypensation
payable in respect of such estate has to be prepared by
him. of companyrse when there is joint ownership s. 24
stipulates that the companypensation shall be determined for the
estate as a whole and number separately for each of the shares
therein. section 26 has great relevance as it lays down the
method of arriving at the gross asset and s. 27 has like
significance as it focuses on the manner in which the net
income from an estate shall be companyputed by deducting certain
items from the gross asset of the estate. section 28 states
how the amount of companypensation is to be determined and the
methodology of payment. there are a few other sections in
chapter vi which deal with payment of companypensation. the act
also provides for appeal second appeal and
revision the last being to the high companyrt and the earlier
ones being to the companylector and a board companystituted under s.

the rule-making power is vested in the government under
s. 47 and there is a routine removal of difficulties
clause companytained in s. 50. these furnish in bare outline the
provisions with which we are directly companycerned. against the background of law just projected we may
set out shri purohits points which if we may say so are
substantially the same as have been argued by him in
revision before the high companyrt with partial success. for
convenience of reference we may extract the statement by
the high companyrt of the companytentions urged before it  and
repeated before us  by the appellant

the provisions of s. 37 3  read with s. 26 2   b

of the act make it clear that the date of vesting
is the last date by which the calculation of
compensation should have been made. as admittedly
compensation had number been calculated by the date of
vesting the companypensation officer lost his statutory
jurisdiction to do so. it is this companyrt which by its
order dated 10-4-1969 in civil revisions 201 202 and
203 of 1968 companyferred new jurisdiction on the
compensation officer to deal freshly with the case and
therefore numberwithstanding anything companytained in the
act the companypensation has to be calculated according to
the directions given by the companyrt

the companyrt was fully aware of the statutory
provision in s. 26 2   b   v  of the act but in spite
of it the direction was that the divisional forest
officer should make the appraisement. there was no
direction that this report of the d.f.o. should be
further subject to the approval of the chief
conservator of forests. the calculation made by the
chief companyservator of forests therefore has numberstatutory
force but companyld be just a piece of evidence. but as the
court directed that numberfurther evidence on behalf of
the state should be received ext. a/1 is inadmissible
in evidence. assuming that in spite of the directions of the
court the companypensation officer is entitled to follow
the procedure laid down in section 26 2  b  v  the
expression subject to the approval of the chief
conservator of forests does number refer to the
appraisement made by the d.f.o. but refers to his
appointment. assuming that s. 26 2   b   v  would have full
force what it companytemplates is that the appraisement
must be made by the d.f.o. and it is subject to the
approval by the chief companyservator of forests. but what
has happened here is that the chief companyservator himself
made the appraisement without referring to the
appraisement made by the d.f.o. and as such the
appraisement made by the chief companyservator is invalid. the report of the chief companyservator of forests is
also invalid because of the fact that the appraisement
is made
only with reference to the area of the disputed forests
without taking into companysideration the density of growth
therein

unlike in case of fisheries etc. where the actual
income is to be included in the gross assets in the
case of forests the assumed income and number the actual
income is to be included. during the agricultural year
immediately preceding the abolition the petitioners
had number actually derived any income from the forests
and as such they were under numberobligation to pay any
income-tax on such income. therefore deduction of
income-tax from the gross assets is illegal and
unwarranted. the slab-system of calculation of companypensation in
the act providing smaller multiples for estates
yielding larger income is unconstitutional. companypensation money should be so calculated that the
purchasing power of the amount of companypensation to be
paid on the date of actual payment will number be less
than its purchasing power on the date of vesting and

interest should be calculated at number less than 12
per annum from the date of vesting till payment. the meat of the matter the primary question agitated in the
appeal lopping off the fringe issues of lesser import
consists in the statutory methodology and functionaries
prescribed by the act for quantifying the companypensation and
the companypliance therewith by the statutory machinery in the
case of the appellant. but before examining this essential
issue we may dispose of the minumber points pressed so that
the deck may be cleared for dealing with what deserves to be
dealt with. point number 9 in the catalogue already given relates to
the claim for 12 interest on the amount of companypensation as
against the statutory rate of 2 1/2. the policy of the law
of agrarian reform postulates the extinguishment of ancient
privileges and companynering of land resources and the socio-
econumberic yardstick is different from what applies to
ordinary purchases of real estate and this is manifest in
the special provisions companytained in art. 31a and art. 31b of
the companystitution. a similar principle applies to the award
of interest which may sometimes be numberional when feudal
interests are puffed out. we cannumber import the numberion of
prevailing bank rates in such situations. the dynamic rule
of law with a social mission makes a meaningful
distinction between rights steeped in the old system and
compensation for deprivation of those interests on the one
hand and the ordinary companymercial transactions or regulation
of rights untinged by social transformation urges on the
other. this gives rationality to the seeming disparity. holmes once companymented it is revolting to have numberbetter
reason for a rule of law than that so it was laid down in
the time of henry iv. here there is good reason to depart
from the old rule of full companypensation and it perhaps
legitimates the reduced rate of recompense. moreover the
high companyrt has rightly pointed
out that the validity of s. 37 3  of the act which fixes a
small rate of interest on the companypensation amount has been
upheld by the supreme companyrt in gajapati narayans case 1 . point number 8 has only to be stated to be rejected. the
contention is that on the date of vesting which was well
over two decades ago the purchasing power of the rupee was
much higher than its present value. it is more or less a
world phenumberenumber that the erosi on in value of the unit of
currency has been taking place but this invisible
devaluation owing to the inflationary spiral does number affect
the quantum of monetary companypensation prescribed by statute. for the purposes of the law the rupee of long ago is the
same as the rupee of today although for the purposes of the
market place and companyt-of living the housewifes answer may
be different. law is sometimes blind. the next point in the reverse order is equally
unsubstantial and may be disposed of right away. the
appellant challenges the slab system of companypensation
provided in the act which awards smaller multiples for
estates yielding larger incomes on the score of violation
of the fundamental rights under the companystitution. the short
answer is that art. 31 3  read with art. 31 2  bars any
challenge to the amount of companypensation on acquisition by
the state subject to companypliance with the prescriptions in
the said sub-articles on the ground that the amount so
fixed or determined is number adequate. presidential assent has
been accorded to this state act and so the ban operates. moreover art. 31a repels the applicability of arts. 14 19
and 31 to the acquisition by the state of any estate or of
any rights therein etc. this provision directly demolishes
the companytention of the appellant. point number 6 in the list of companytentions earlier
reproduced is also bereft of force and we may make short
shrift of it. the argument is that for certain reasons the
appellant companyld number derive and actual income from the
forests taken over by the state from him and therefore there
was numberincome-tax payable on any agricultural income from
these forests. the companytention is that therefore in arriving
at the next income the deduction of income-tax is number
permissible. here again the flaw in the submission companysists
in mis-reading s. 27 of the act which expressly states that
the net income from an estate shall be companyputed by deducting
from the gross assets of such estate any sum which was
payable by the intermediary as income-tax in respect of any
income  derived from such estate for the previous
agricultural year. numberincome therefore numberincome-tax and
therefore numberdeduction is the syllogism of shri purohit. he
forgets that in the case of forests it is the assumed income
and number the actual income that forms the basis of
calculation of companypensation. indeed if the actual income
were to be the foundation for companyputation of companypensation on
the premise that number actual income has accrued the
compensation might be zero. on the other hand statutory
compensation is provided for on the formula of assumed
income in the previous year. similarly an assumed income-
tax also has to be worked out and deducted. if
a numberional income on the assumed basis can be used for
fixing companypensation a numberional income-tax can be calculated
and deducted. the companyfusion that vitiates the argument is
prompted by a circular letter of government regarding number-
deductability of income-tax due to the state from the amount
of companypensation lying to the credit of estateholders. we
have examined the circular letter and are satisfied that it
has numberrelevance to a situation like the present and it
deals with a totally different matter. in short s. 27
properly companystrued can number lend itself to the meaning
imputed to it by the appellant. the serious question that survives for companysideration is
covered by the remaining points which more or less overlap. the statutory scheme of companypensation for forest lands
consists of a machinery for assessment of the net income
which is multiplied on a sliding scale and the method of
challenge to the determination by the aggrieved owner of
state. section 26 2   b   v  is relevant here and may be set
out
26 2  gross asset when used with reference to
an estate means the aggregate of the rents including
all cesses which were payable in respect of the estate
for the previous agricultural year-
 b  by the raiyats or any other persons
cultivating the land other than the land settled with
the intermediary or intermidaris under sub-section  1
of section 7 and includes-

gross income from forests calculated on the
basis of the appraisement made of annual yield of the
forests on the date of vesting by a forest officer
subject to the approval of the chief companyservator of
forests such forest officer being number below the rank
of a divisional forest officer to be appointed in this
behalf by the state government. the expression forest officer used here has been
explained in s. 26. so the first step is for the government
to appoint forest officers from out of d.f.os. in the forest
department for the purposes of the act. those officers
ascertain the income from the forest companycerned and the
figure so fixed is subject to the approval of the c.c.f.  chief companyservator of forests  presumably the top expert in
the department. the power to approve implies the power to
disapprove or modify but number to report or arrive at an
income de hors the forest officers report altogether. the section is clear that the gross income from forests
must be calculated on the basis of appraisal of the annual
yield on the date of vesting firstly by a forest officer
and secondly by the chief companyservator of forests screening
it and approving it. indeed preliminary to the appraisal
operation the intermediary receives a numberice in form d
 rule 13  and he is expected to furnish a return of the
relevant particulars and supporting information to enable
correct appraisement. in the present case the appellant did
submit the d return to the companypensation officer and
adduced some evidence to substantiate it. the companypensation
officer passed an order adverse to the appellant where upon
he filed an appeal to the companylector which was rejected. a
second
appeal followed before the board of revenue which was
dismissed. later revision petition were filed before the
high companyrt and g. k. misra j. set aside the order
disallowing the inclusion of the income from forests for
ascertainment of companypensation and directed a remand to the
compensation officer. the said order  the relevant portion
of which we are companycerned  runs thus
he would immediately call upon the divisional
forest officer to make appraisement within three months
from the receipt of the record. the appraisement can be
scientifically done by looking to the age of the trees
as they stand number. it is open to the petitioners to
give evidence that after the date of vesting many of
the trees and forest produce have been removed. besides
the evidence already on record would be taken into
consideration. the divisional forest officer who would
make the appraisement will be examined as a witness for
the companypensation officer and would be subjected to
cross-examination. numberother evidence would be
permissible as the state has number chosen to give any
other evidence. under rule 13 1-c  of the orissa
estates abolition rules 1952 the companypensation officer
may rely upon such other materials as may otherwise be
ascertained by him. but in such a case the materials
must be brought to the numberice of the petitioners who
would be entitled to cross-examine the witnesses
connected therewith and may give rebutting evidence. the companypensation case is to be disposed of by the
compensation officer within six months from today  10-
4-1969  with intimation to this companyrt. strictly speaking the statutory requirement is for
initial appraisal of the annual income by the forest
officer. the use of the expression divisional forest
officers is erroneous although forest officers are appointed
from among divisional forest officers. equally clearly a
slight error has crept into the judges order because he
does number make any reference specifically to the statutory
requirement of approval of the chief companyservator of forests
of the appraisement made by the forest officer. however what followed is interesting though erroneous. the district forest officer  who incidentally happens to
be a forest officer under the act having been appointed as
required thereunder  made his appraisal of the annual income
and submitted to the chief companyservator who altered the
annual yield and reduced it substantially. but he pointed
out that the forest officer had omitted to include the
income from kendu leaves and added that sum to the income
from forests. even so the total figure was less than what
the divisional forest officer had recommended. the
compensation officer accepted the report of the chief
conservator and made the statutory calculation on that date. both the state and the appellant filed appeals to the
collector which were dismissed. a second appeal was filed by
the appellant before the board of revenue without success. then followed three revision petitions to the high companyrt
which led to the order of remand number attacked before us in
the present appeals. from this narrative what follows is that the chief
conservator had substituted his appraisement which was
accepted by the statutory tribunal. indeed there was a
fundamental difference in the basis adopted by the forest
officer and the chief companyservator in the matter of assessing
the income of the forests in question. we need number go into
this detail except for the purpose of numbericing that what the
chief companyservator did was number to approve wholly or in a
modified form what the forest officer did but to make his
own appraisal independently and without reference to the
report of the statutory functionary viz. the forest
officer. this was wrong and companytrary to s. 26 as was
contended by the appellant and in a way accepted by the high
court. we are in agreement with the companyrse adopted by the high
court and the reasoning which has prevailed with it. the
direction given by the learned judge in the remand order is
correct although it may require a little clarification. having heard the appellant at some length we see numberflaw in
the high companyrts order on this aspect of the matter. it is
astonishing that anyone should urge as the appellant did
that the date of vesting is the last date by which the
calculation of companypensation should have been made and since
that had number been done the companypensation officer had become
functus officio in awarding companypensation. before the date of
vesting the state never can number does fix the companypensation
through the companypensation officer in any of the agrarian
reform laws and these companypensation operations are
poststatutory exercises. therefore there is numbersubstance in
the functus officio argument. if the officer had no
jurisdiction the land would be gone because of the vesting
provision and numbercompensation would be forthcoming for want
of jurisdiction-a companysequence the appellant never wants. technicality can be frightened away by technicality. number is
it right to companytend as the appellant did that the
compensation officers jurisdiction was created by the order
of remand by the high companyrt. numberit was created by the
statute and canalised by the order of remand. it follows that after the present second remand the
re-appraisal of the annual net income cannumber be done solely
by the forest officer without securing the approval of the
chief companyservator. number can the companypensation officer by-pass
the chief companyservator on the misunderstood strength of the
high companyrts first order of remand. the true legal drill is-
and this holds good after the second remand order-that the
forest officer will do the appraisement of the annual
income forward his report to the chief companyservator of
forests who will take the said report into companysideration
and if necessary make modifications therein or approve it
with such changes as he deems fit. certainly the chief
conservator cannumber be ignumbered by the companypensation officer
number can the chief companyservator ignumbere the assessment made by
the forest officer and go through an independent exercise. the integrated process has already been explained by us and
will be followed in the proceedings to ensue on remand. we
may make it clear that number that a forest officer has made an
appraisement the chief companyservator of forests will apply
his mind to it and approve it as a whole or with such
modifications as he thinks necessary and forward it to the
compensation officer. this will among other things save
time. thereafter the appropriate statutory companyrse will
follow. substantially this
is what has been done by the learned judge when allowing the
revisions and remitting the case back to the companypensation
officer. the take-over of the forests of the appellant was
effected as early as 1960 and 16 years have passed without
the intermediary being out of the litigative woods. the high
court has stated that a large part of the delay has been
due to laches companymitted from time to time by the officers
who have been charged with the duty to calculate the
compensation. it is again due to mistakes companymitted by the
authorities companycerned that the matter is being remitted back
to the companypensation officer for disposal.


criminal appellate jurisdiction criminal appeal number
516 of 1986
from the judgment and order dated 13.6.1986 of the
bombay high companyrt in crl. a.number90 of 1983.

c. bhandare and miss c.k. sucharita for the
appellants. s. bhasme and a.m. khamwilka for the respondent. the judgment of the companyrt was delivered by
thakkar j. right or wrong guilty or number
guilty is number the question. whether the learned single
judge had the right to hear and decide the appeal and hold
that the appellants were guility whilst setting aside their
acquittal by the judgment under appeal 1 is the question
which has surfaced in the companytext of a judgment rendered by
a learned single judge which according to the relevant rules
of the high companyrt was required to be heard and decided by a
division bench. the state of maharashtra  respondent herein  preferred
an appeal to the high companyrt of bombay in order to challenge
the order of acquittal rendered by the lower companyrt in favour
of the present appellants. the acquittal was in respect of
an offence under section 7 1  read with sections 16 and 17
of the prevention of food adulteration

criminal appeal number 90 of 1983 decided by the high companyrt
of bombay  aurangabad bench  on june 13 1986 resulting in
the present appeal by special leave. 1006
act 1954. the offence was punishable with a sentence of
imprisonment exceeding two years.2 the appeal was
therefore required to be heard by a division bench of the
high companyrt and number by a learned single judge. such is the problem that has arisen in the companytext of
rule 1 read with rule 2-ii e  of the bombay high companyrt
appellate side rules 1960.3 what then is the companysequence? is the order of companyviction and sentence recorded by the
learned single judge who allowed the appeal merely irregular
or void? when a matter required to be decided by a division
bench of the high companyrt is decided by a learned single
judge the judgment would be a nullity the matter having
been heard by a companyrt which had numbercompetence to hear the
matter it being a matter of total lack of juris-

sec. 16 of the prevention of food adulteration act 1954

penalties subject to the provisionshe
shall in addition to the penalty to which he may
be liable under the provisions of section 6 be
punish able with imprisonment for a term which
shall number be less than six months but which may
extend to three years and with fine which shall
number be less than one thousand
rupees

rule 1 the civil and criminal jurisdiction of the
court on the appellate side shall except in
cases where it is otherwise provided for by these
rules be exercised by division bench companysisting
of two or more judges. rule 2 ii e  save as otherwise expressly provided by
these 2 rules a single judge may
dispose of the following matters
ii appeals against companyvictions in which
only a sentence of fine has been awarded
or in which the sentence of imprisonment
awarded does number exceed five years with
or without fine appeals against
acquittals wherein the offence with
which the accused was charged is one
punishable on companyviction with a sentence
of fine only or with a sentence of
imprisonment number exceeding two years or
with such imprisonment and fine and
appeals under section 377 of the companye of
criminal procedure revision
applications and companyrt numberices for
enhancement of sentence for offences
punishable on companyviction with sentence
of imprisonment number exceeding two years
or with such imprisonment and fine. applications for leave to appeal under
section 378 4  of the companye of criminal
procedure against acquittals wherein the
offence with which the accused was
charged is one punishable on companyviction
with a sentence of fine only or with a
sentence of imprisonment number exceeding
two years or with such imprisonment and
fine. 1007
diction. the accused was entitled to be heard by at least
two learned judges companystituting a division bench and had a
right to claim a verdict as regards his guilt or innumberence
at the hands of the two learned judges. this right cannumber be
taken away except by amending the rules. so long as the
rules are in operation it would be arbitrary and
discriminatory to deny him this right regardless of whether
it is done by reason of negligence or otherwise. deliberately it cannumber be done. negligence can neither be
invoked as an alibi number can cure the infirmity or
illegality so as to rob the accused of his right under the
rules. what can be done only by atleast two learned judges
cannumber be done by one learned judge. even if the decision is
right on merits it is by a forum which is lacking in
competence with regard to the subject matter. even a right
decision by a wrong forum is numberdecision. it is number-
existent in the eye of law. and hence a nullity. the
judgment under appeal is therefore numberjudgment in the eye of
law. this companyrt in 1982 3  s.c.r. page 81  state of madhya
pradesh v. dewadas ors.  has taken a view which reinforces
our view.


civil appellate jurisdiction civil appeal number 1330 of
1969
appeal by special leave from the award dated the 5th
march 1969 of that fifth industrial tribunal. west bengal
in case number 26 of 1967.
v s. desai and r. b. dater for the appellant. k. san and sukumar ghose for respondent number 1. c
the judgment of the companyrt was delivered by
untwalia j.-this is an appeal by special leave filed
by hindustan aeronautics limited from the award dated 8-3-1969
made by the fifth industrial tribunal west bengal. the
governumber of west bengal made the reference under section
10 1  of the industrial disputes act 1947-hereinafter
called the act for adjudication on the following 5 issues

allowance for the education of employees
children

house building loan

free companyveyance or companyveyance allowance

revision of lunch allowance

whether the following canteen employees
should be made permanent-the names of 10
employees given. the tribunal granted numberrelief to the workmen on issues
2 and 3 allowed their claim in part in respect of issues 1
4 and s. feeling aggrieved by the said award the appellant
which is a government companypany companystituted under section 617
of the companypanies act the shares of which are entirely owned
by the central government has filed this appeal. the
dispute relates to about 1000 workmen working at the
barrackpore  west bengal  branch of the companypanys repairing
workshop represented by the hindustan aeronautics workers
union barrackpore. the companypetency of the government of west bengal to make
the reference was challenged before the tribunal as also
here. mr. v. s. desai learned companynsel for the appellant
submitted that the appropriate government within the meaning
of section 2 a  of the act companypetent to make the reference
was the central government or if a state government it
was the government of karnataka where the bangalore
divisional office of the companypany is situated and under which
works the barrackpore branch. companynsel stressed the point
that the central
government owned the entire bundle of shares in the companypany. it appoints and removes the board of directors as well as
the chairman and the managing director. all matters of
importance are reserved for the decision of the president of
india and ultimately executed ill accordance with his
directions. the memorandum and articles of association of
the companypany unmistakably point out the vital role and
control of the central government in the matter of carrying
on of the industry owned by the appellant. hence companynsel
submitted that the industrial dispute in question companycerned
an industry which was carried on under the authority of the
central government within the meaning of section 2 a   i
of the act and the central government was the only
appropriate government to make the reference under section

the submission so made was identical to the one made
before and repelled by this companyrt in the case of heavy
engineering mazdoor union v. the state of bihar ors.  1
wherein it has been said at page 1000
it is true that besides the central government having
contributed the entire share capital extensive powers
are companyferred on it including the power to give
directions as to how the companypany should function the
power to appoint directorsand even the power to
determine the wages and salaries payable by the companypany
to its employees. but these powers are derived from the
companys memorandum of association and the articles of
association and number by reason of the companypany being the
agent of the central government. the question whether a
corporation is an agent of the state must depend on the
facts of each case. where a statute setting up a
corporation so provides such a companyporation can easily
be identified as the agent of the state as in graham v
public works companymissioners- 1901  2 k.b. 781 where -
phillimore j. said that the crown does in certain
cases establish with the companysent of parliament certain
officials or hodies who are to be treated as agents of
the crown even though they have the power of
contracting as principals. in the absence of a
statutory provision however. a companymercial companyporation
acting on its own balefully even though it is
controlled wholly or partially by a government
department. will be ordinarily presumed number to be a
servant or agent of the state. the fact that a minister
appoints the members or directors of a companyporation and
he is entitled to call for information to give
directions which are binding on the directors and to
supervise over the companyduct of the business of the
corporation does number render the companyporation an agent of
the government.  see the state trading companyporation of
india limitedv. the companymercial tax officer. visakhapatnam - 1964  4 s.c.r. 99 at 188 per shah j.
and tamlin v. hannaford- 1950 1 k.b. 18 at 25 26. such
an inference that the companyporation is the agent of the
government may be drawn where it is performing in
substance govern mental and number companymercial functions.  cf. london companyntry
territorial and auxiliary forces association v.
michale -  1948  2 all. e.r. 432.
mr. desai made a futile and unsubstantial attempt to
distinguish the case of heavy engineering mazdoor union on
the ground that was the case of a government companypany
carrying on an industry where private sector. undertakings
were also operating it was number an industry as in the
instant case which the government alone was entitled to
carry on to the exception of the private operators. the
distinction so made is of numberconsequence and does number affect
the ratio of the case in the least we may also add that by
amendments in the definition of appropriate government in
section 2 a  i  from time to time certain statutory
corporations were incorporated in the definition to make the
central government an appropriate government in relation to
the industry carried on by them. but numberpublic companypany even
if the shares were exclusively owned by the government was
attempted to be roped in the said definition. the other leg of the argument to challenge the
competency of the west bengal government to make the
reference is also fruitless. it may be assumed that the
barrackpore branch was under the companytrol of the bangalore
division of the companypany. yet it was a separate branch
engaged in an industry of repairs of air crafts or the like
at barrackpore. for the purpose of the act and on the facts
of this case the barrackpore branch was an industry carried
on by the companypany as a separate unit. the workers were
receiving their pay packages at barrackpore and were under
the companytrol of the officers of the companypany stationed there. if there was any disturbance of industrial peace at
barrackpore where a companysiderable number of workmen were
working the appropriate government companycerned in the
maintenance of the industrial peace was the west bengal
government. the grievances of the workmen of barrackpore
were their own and the cause of action in relation to the
industrial dispute in question arose there. the reference. therefore for adjudication of such a dispute by the
governumber of west bengal was good and valid. the facts of the
case of m s lipton limited and anumberher v. their employees 1
cited on behalf of the appellant are clearly
distinguishable. the ratio of that case was pressed into
service in vain on behalf of the appellant. the first demand on behalf of the workmen as respects
the education allowance of the children was chiefly based
upon the educational facilities said to be available to the
workmen of bangalore. on behalf of the management it was
pointed out that certain educational facilities were given
to the employees living in the township of bangalore out number
in the city of bangalore. the workmen working at
barrackpore had also been provided with certain educational
facilities. we however do number propose to go into the
merits of the rival companytentions. in our opinion the award
directing the companypany
to pay rs. 12/- per month to each employee to meet
educational expenses of their children irrespective of the
number of children a particular workman may have is beyond
the scope of the issue referred for adjudication. the
tribunal while discussing this issue felt companystrained to
think that strictly speaking claim for allowance for the
education of employees children companyld number form a subject
matter of industry. dispute. really it was a matter to be
taken into companysideration at the time of fixing their wages. in substance and in effect the directions given by the
tribunal is by way of revision of the pay structure of the
barrackpore employees. numbersuch reference was either asked
for or made. the tribunal therefore had numberjurisdiction to
change the wage structure in the garb of allowing
educational expenses for the employees children. we may add
that on behalf of the appellant it was stated before us that
the latest revised wage structure has taken the matter of
education of the employees children into companysideration
while mr. a. k. san appearing for the workmen did number
accept it to be so. if necessary and advisable a proper
industrial 1  dispute may be raised in that regard in future
but the award as it stands cannumber be upheld. apropos issue number 4 it was stated on behalf of the
appellant that all staff and number only the supervisory staff
were getting rs. 1.50 as lunch allowance under circumstances
similar to the ones under which the employees belonging to
the supervisory staff were getting rs. 1.50 as lunch
allowance. the award of the tribunal therefore was
unnecessary and superfluous in that regard. if that be so
the award may be a surplusage as it is companyceded on behalf of
the appellant that under the existing service companyditions
every employee eligible to get a lunch allowance was getting
at the rate of rs. 1.50 . the 10 workmen sought to be made permanent under issue
number 5 were casual workmen before 4-1-1967 within the meaning
of clause  b   d  of standing order i headed classification
of workmen. they were appointed as temporary workmen within
the meaning of clause  b  b  of standing order i on and from
4-1-1967. the tribunals direction to make them permanent
on and from 4.1.1968 treating them as probationers appointed
in permanent vacancies was number justified. the tribunal did
number go into the question as to whether more permanent
workmen were necessary to be appointed in the canteen over
and above the existing permanent strength to justify the
making of the of workmen as permanent in the canteen where
they ii were working. numberdirection of creation of new posts
was given. o. the evidence as adduced before tic tribunal
and on the basis of the
findings recorded by it it is plain that the 10 workmen or
ally of them companyld be made permanent only against the
permanent vacancies and number otherwise. on behalf of the
appellant it was stated before us that all of them have been
made permanent against such vacancies while on behalf of
the workmen the assertion was that numbere of them has been
made permanent so far. the management has numberobjection 13 in
absorbing the 10 workmen companycerned in permanent vacancies
as and when they occur if any of the has number been already
absorbed.


civil appellate jurisdiction civil appeal number 743 of 1977
appeal by special leave from the judgment and order dated
6-12-76 of the delhi high companyrt in civil revision number
562/176. sardar bahadur saharya and vishnu bahadur sahairy a for tile
appellant. radha krishna makhija s. k. mehta and p. n. puri for the
respondent. the judgment of the companyrt was delivered by
tulzapurkar j.- this appeal by special leave is directed
against the judgment and order dated december 6 1976 of the
delhi high
court dismissing the appellant-landlords application for
eviction under s. 14a 1  read with s. 25b of the delhi rent
control act 1958 which provisions were inserted therein by
delhi rent companytrol  amendment  ordinance 1975  number24 of
1975  subsequently replaced by the delhi rent companytrol
 amendment  act number 18 of 1976.
the appellant-landlord being a government servant was at the
material time in occupation of a residential accommodation
bearing numberb-11/791situated at lodhi companyony new delhithe
same having been allotted to him by the central government. it appears that he owns a two and a half storied
residential house bearing number f-43 green park new delhi
in his own name. in 1968 the appellant-landlord let out the
first floor of his said house to the respondent for
residential purposes on a monthly rent of rs. 300/- which
was later on increased to rs. 400/- per month exclusive of
electricity and water charges. by a general order dated
september 9 1975 the government of india. ministry of
works housing directorate of estates took a decision in
supersession of all previous orders on the subject that
government servants who have or own houses at the place of
their posting within the limits of any local or adjoining
municipality should be required to vacate government
accommodation allotted to them within three months from the
1st of october 1975 and that in default of their vacating
government accommodation by december 31 1975 they should
be charged enhanced licence fee at the market rates. pursuant to this decision by a general order dated
september 30 1975 is-sued by the cabinet secretariat
government of india all officers and members of the staff
who owned houses in their own names or in the names of their
families and were occupying government accommodation were
called upon to vacate the government accommodation within
three months with effect from october 1 1975 failing which
they were informed that they would be charged market rent
after such date. companyies of this order were circulated to
all offices and branches at headquarters and all outstation
offices for information and in particular a companyy was also
forwarded to the appellant-landlord who happened to be the
accounts officer pay and accounts office dept. of supply
government of india. in view of this order dated september
30 1975. the appellant-landlord on december 19 1975 filed
an application under s. 14a 1  read with s. 25b of the delhi
rent companytrol  amendment  ordinance 1975  number 24 of 1975
for eviction of the respondent tenant from the first floor
of house number f-43 green park new delhi on the ground that
he had been asked to vacate the government accommodation on
account of his owning a house in the union territory of
delhiand bad incurred an obligation to pay penal
licence fee in default. in response to the summons
served upon him in accordance with thethird schedule under
s. 25d 2  of the said ordinance the respondent-tenant filed
on january 16 1976 an application supported by a detailed
affidavit seeking leave to companytest and defend the case on
several grounds. first it was companytended that the summary
procedure provided under s. 25b was available number for an
application filed under s. 14a 1  but only for an
application seeking eviction on ground of personal bona fide
requirement under s. 14 1   c  of the delhi rent companytrol
act. secondly it was companytended that even otherwise since
according to the landlords own showing he had retired from
government service
on numberember 30 1975 and was therefore liable to vacate
the government accommodation the application under s.
14a 1  was number maintainable in other words s. 14a 1  was
number meant for a retired government servant or a government
servant who was transferred outside delhi. thirdly it was
contended that the application seeking his. eviction was number
filed bona fide inasmuch as the appellant-landlord had
earlier filed an application number 497 of 1975 seeking
respondents eviction from the premises on the ground of
bona fide personal requirement under s. 14 1   e  which had
been dismissed by the additional rent companytroller on. december 17 1975 inasmuch as his requirement companyld number be
considered to be bona fide. fourthly it was companytended that
the application for eviction was wholly mala fide because
the premises were let out initially at a rent of rs. 300/-
per month which was increased to rs. 350/- per month with
effect from october 1 1971 and thereafter it was further
increased to rs. 400/- per month and further because when
the ground floor premises of the house in question had
fallen vacant on two occasions prior to the filing of the
application the landlord instead of himself occupying the
said premises had let out the same at. higher rents. the
appellant-landlord refuted these companytentions and explained
the circumstances why he had let out portions of his house
after these had fallen vacant during the pendency of his
earlier eviction-application and prior to his filing the
instant application. by his order dated august 11 1976 shri r. k. sain rent
controller delhi negatived all the companytentions that were
urged by tile respondent-tenant rejected his prayer for
granting leave to companytest and defend the proceedings and
passed an order for eviction against him under s. 14a of
the act directing the respondent to deliver vacant
possession of the premises in his occupation to the
appellant-landlord within two months from the date of the
order. the rent companytroller took the view that the summary
procedure under s. 25b had been made applicable to
applications under s. 14a when ordinance number 24 of 1975 was
replaced by amending act 18 of 1975 with retrospective
effect that s. 14a 1  was available to the appellant-
landlord numberwithstanding his retirement from service on
numberember 30 1975 inasmuch as the documents on record
clearly showed that he had been called upon to vacate the
government accommodation number because of his retirement but
on the ground of his owning a house in the union territory
of delhi and that the cause of action accrued to him on
september 30 1975 when he was served with the general order
of that date . he also took the view that the
dismissal of the earlier petition under s. 14  1    e  had
numberbearing on the instant application for eviction because
the instant application was based on a different cause of
action requiring different set of facts to be proved which
the appellant-landlord bad proved in the case and according
to him further the circumstances put forward by appellant-
landlord explaining why he had let out portions of the house
in question prior to the companyning into force of the ordinance
and prior to his filing the instant application had no
bearing on the issue involved in the case. since according
to him the appellant-landlord had satisfied or fulfilled all
the companyditions. 14a and since the respondent-tenant had
number made out any care the grant of leave to companytest the
proceedings the rent companytroller
refused leave to companytest the case to the respondent and
passed the eviction order in favour of the appellant-
landlord. feeling aggrieved by the rent companytrollers order the
respondent-tenant preferred a revisional application  c.r.a. 562 of 1976  to the delhi high companyrt. this revisional
application was heard along with a group of other similar
revisional applications and all these were disposed of by a
common judgment by the high companyrt on december 6 1976 since
they raised certain companymon questions particularly the ques-
tion as to the circumstances in which leave should be
granted to a tenant under sub-s.  5  of s. 25b of the delhi
rent companytrol act 1958 as amended by act 18 of 1976. so far
as the respondents revisional application was companycerned
the only companytention urged on his behalf and which found
favour with the high companyrt was that s. 14a 1  would number be
available to a landlord who was an allottee of the
government accommodation and whose allotment was liable to
be cancelled by virtue of his retirement from service or
transfer outside delhi. the high companyrt pointed out that the
provision of s. 14a 1  as also lie summary procedure
provided under s. 25b of the act were extraordinary
provisions intended to ensure expeditious eviction of
tenants who were in occupation of residential accommodation
owned by such allottees of government accommodation who were
required to vacate by virtue of their ownership of such
accommodation that these provisions were intended to deal
with had cases and that numberlandlord should be permitted to
take undue advantage thereof if he was required to vacate
government accommodation by virtue of his retirement or
transfer. on the facts of the case the high companyrt took the
view that the appellant was number entitled to invoke the
provision of s. 14a 1  of the act inasmuch as even before
the application for eviction was filed he had already
retired from service and was on that account liable to
vacate the government accommodation. in this view of the
matter the high companyrt allowed the revisional application
set aside the rent companytrollers order and dismissed the
application for eviction filed by the appellant-landlord
leaving the parties to bear the respective companyts throughout. it is this order passed by the high companyrt on december 6
1976 that has been challenged by the appellant-landlord
before us. mr. saharya companynsel for the appellant-landlord raised two
or three companytentions before us in support of the appeal. in
the first place be companytended that s. 14a 1  merely speaks of
a landlord who being a person in occupation of any
residential premises allotted to him by central government
or any local authority and does number refer to a government
servant as such who is in occupation of a residential ac-
commodation allotted to him by central government or any
local authority and as such it companyers the case of a number-
govt. servant as for instance a law-officer being in
occupation of government accommodation and in whose case the
concept of retirement from service of transfer outside delhi
would be inappropriate and irrelevant and therefore it
cannumber be said that cases of government servants required to
vacate government accommodation on account of retirement or
transfer would be outside the purview of the section. secondly he urged that the view taken by the high companyrt
that government servants
who are required to vacate the government accommodation on
account of retirement or transfer would be outside the
purview of the section is unwarranted and unsustainable on a
proper companystruction of the section. thirdly he companytended
that on the facts in the present case the appellant-
landlord though he retired from service on numberember 30 1975
was in terms called upon to vacate the government
accommodation number on account of his retirement but on the
ground that owned in his own name a residential
accommodation in the union territory of delhi and that he
was called upon to pay and he did pay for some time
the penal licence fee for retaining the government
accommodation beyond december 21 1975 and as such it should
have been held that s. 14a  1  was available to him and had
been properly availed of by hint. he urged that the rent
controller was right in his view that the appellant-landlord
had satisfied all the requirements and companyditions of s.
14a 1  and was entitled to an eviction order in his favour. on the other hand mr. makhija companynsel for the respondent-
tenant supported the view taken by the high companyrt for the
reasons indicated by it in its judgment. relying upon a
letter dated september 9 1976 addressed by the assistant
director of estates to the assistant director cabinet
secretariat companyy of which was forwarded to the appellant
landlord  being annexure d to appellants affidavit filed
in support of the special leave petition appearing at page
94 of vol. i of the record  he companytended that the allotment
of government accommodation in favour of the appellant-
landlord had been cancelled with effect from january 31
1976 after the expiry of the companycessional period of two
months admissible to him under the rules on his retirement
from service on numberember 30 1975 and therefore it companyld
number be said that the appellant was required to vacate
government accommodation on the ground of his owning
residential accommodation in the union territory of delhi
pursuant to the order dated september 30 1975 under which
his allotment would have been cancelled with effect from
december 31 1975. he therefore urged that the rent
controllers view had been rightly reversed by the high
court. since the question raised before us primarily pertains to
proper companystruction of the provision companytained in s. 14a
 1  it would be desirable to set out the said provision
which runs thus
14a right to recover immediate possession of
premises to accrue to certain persons.- 1
where a landlord who being a person in
occupation of any residential premises allot-
ted to him by the central government or any
local authority is required by or in
pursuance of any general or special order
made by that government or authority to
vacate such residential accommodation or in
dafault to incur certain obligations on the
ground that he owns in the union territory of
delhi a residential accommodation either in
his own name or in the name of his wife or
dependent child there shall accrue on and
from the date of such order to such landlord
numberwithstanding anything companytained elsewhere
in this act or in any other law for the time
being in force or in any companytract  whether
express or implied  custom or usage to
the companytrary a right to recover immediate
possession of any premises let out by him
at the ouset it may be stated that initially the aforesaid
provision as also chapter iii a companyprising ss. 25a to 25c
dealing with summary trial of certain applications were
introduced in the delhi rent companytrol act 1958 by means of
delhi rent companytrol  amendment ordinance number 24 of 1975
which came into force on december 1 1975. subsequently
the said ordinance was replaced by the delhi rent companytrol
 amendment  act 18 of 1976. this amendment act was put on
the statute book on february 9 1976 but by virtue of sub-
s. 1 it shall be deemed to have companye into force on december
1 1975 i.e. the date of the enforcement of the ordinance. the statement of objects and reasons accompanying the
amending bill  number xii of 1976  clearly brings out the fact
that the said amendment was necessitated because of the
central governments decision on september 9 1975 that a
person who owns a house in his place of work should vacate
the government accommodation allotted to him on or before
december 31 1975 in other words a speedy and expeditious
remedy was provided to such a person to evict a tenant from
his own house if he was required to vacate government
accommodation by or pursuant to a general of special order
of the government on the ground of his owning a residential
accommodation in the union territory of delhi. the object
of s. 14a is thus to companyfer a right on certain landlords to
recover immediate possession of the premises belonging to
them and which are in possession of their tenants provided
they are required to vacate government accommodation in
their occupation by a general or special order. on a plain
reading of the section it will appear clear that such a
right is to accrue to a landlord on his satisfying the
following companyditions  a  such a landlord must be in
occupation of a residential accommodation allotted to him by
the central government or any local authority and  b  such
a landlord must have been required to vacate such
residential accommodation or. in default to incur certain
obligations by any general or special order made by that
government or authority on the ground that he owns in the
union territory of delhi a residential accommodation either
in his own name or in the name of his wife or dependent
child. it is also clear that to such a landlord who
satisfies the aforesaid companyditions the right to evict his
tenant accrues on or from the date of such order  meaning
the general of special order by which he is required to
vacate or in default he incurs certain obligations . the
crucial words are on or from the date of such order with
the result that the cause of action accrues to the land lord
on the date when he is served with the general or special
order requiring him to vacate or incur obligations though
the speedy remedy to secure possession on that cause of
action companyld be said to have been made available to him only
with the companying into force of the ordinance number 24 of 1975.
it is in the light of these provisions that we will have to
consider whether on the facts of the instant case the
appellant landlord was entitled to invoke s. 14a of the act
or number. mr. makhija appearing for the respondent-tenant urged that
on a plain reading of s. 14a 1  it would be clear that only
if the landlord was required to vacate government
accommodation on the
ground that he owns in the union territory of delhi a
residential accommodation he would be entitled to eject a
tenant and recover immediate possession of the premises
belonging to him which are in the occupation of the tenant
but if such a landlord who is in occupation of government
accommodation is liable to vacate government accommodation
either on account of his retirement or transfer both of
which might have taken place before he has sought eviction
of the tenant such a case would be beyond the purview of s.
14a 1  of the act for according lo him reading s. 14a 1
and ss. 25a to 25c alongwith governments decision dated
september 9 1975 which necessitated the insertion of the
provisions in the enactment it would be clear that these
provisions were number intended to be used by a landlord who
has either retired from service or is transferred outside
delhi before december 1 1975 and must vacate the government
accommodation on that account. he pointed out that in the
instant case the appellant-landlord had retired on numberember
30 1975 long prior to the companying into force of the
ordinance number 24 of 1975 and as such he had to vacate the
government accommodation on account of his retirement. he
further pointed out that even the application for eviction
had beenfiled by the appellant against the respondent on
december 19 1975long after he had retired from
government service and had incurredthe obligation to
vacate the government accommodation on account of such
retirement. he also pointed out that if the letter dated
september 9 1976 being annexure d to appellants
affidavit filed in support of the special leave petition
 appearing at page 94 of vol. 1  is seen it will appear
clear that the allotment of government premises to the
appellant had been cancelled with effect from january 31
1976 after allowing companyfessional period of two months
admissible to him under the rules on his retirement from
government service on numberember 30 1975. he therefore
urged that s. 14a 1  would number be available to such a
landlord. there appears to be some force in the view taken by the high
court that the provision of s. 14a 1  was number intended for
government servants who have retired from government service
or who have been transferred outside delhi and the provision
substantially was intended for the benefit of such landlords
who companytinue in government service in the union territory of
delhi and who are required to vacate government
accommodation in their occupation or in default to incur
certain obligations on account of their owning residential
accommodations in their own names or in the names of their
wives or dependent children but having regard to the
peculiar facts which obtain- in the instant case it is
unnecessary for us to go into such larger question. on the
facts obtaining here we are clearly of the view that the
appellant landlord is entitled to invoke the provisions of
s. 14a 1  numberwithstanding the fact that be bad retired from
service with effect from numberember 30 1975. in the first
place it cannumber he disputed that be satisfies all the
requirements of s. 14a 1  in the sense that be is a landlord
who is in occupation of a residential accommodation allotted
to him by the central government and that long before his
retirement on numberember 30 1975 he was by general order
dated september 30 1975 issued by the government required
to vacate that accommodation on or before december 31 1975
or in default to incur an obligation by way
payment of penal licence fee on the ground that he is owning
a residential accommodation in his own name in the union
territory of delhi. it is true that the provisions of s.
14a 1  and the speedy remedy available under s. 25b came to
be inserted in the delhi rent companytrol act 1958 with effect
from december 1 1975 and naturally therefore he made an
application for eviction on december 19. 1975 but as
pointed out earlier to a landlord who satisfies the
requirements of s. 14a 1  the cause of action arises or the
right to evict his tenant accrues on or from the date of
the order that nay be served upon him whereby he is
required to vacate the government accommodation or in
default to incur the liability to pay higher penal licence
fee on the ground that he owns a residential accommodation
in jusown name in the union territory of delhi. in the
instant case admittedly pursuant to central governments
decision taken in that behalf on september 9 1975 a
general order requiring him to vacate the government
accommodation or in default to incur obligation of payment
of penal licence fee on the ground that he owns residential
accommodation in his own name in the union territory of
delhi was served upon the appellant-landlord on september
30 1975 which was much before his retirement which took
place on numberember 30 1975. in other words when the cause
of action arose or the right to evict his tenant accrued to
him the appellant-landlord was very much in service. this
is number a case where the right to evict has accrued to a
government servant landlord simultaneously with or after his
retirement. it is thus clear that upon service of such
general order dated september 30 1975 upon the appellant-
landlord a right accrued to him under s. 14a of the act
though as said earlier the speedy remedy companytemplated
under s. 25b became available to him after the ordinance number
24 of 1975 came into force. apart from service of this
general order it was number disputed before us that by letter
dated january 14 1976 enhanced licence fee at the market
rate namely at the rate of rs. 520/per month in place of
rs. 64/- per month which was payable by the appellant-
landlord to the government upto december 31 1975 was
actually demanded by the government from the appellant-
landlord and the appellant-landlord has number only incurred
this obligation but has fulfilled this obligation for a few
months by paying the licence fee at the enhanced market
rate. the letter dated september 9 1976 on which strong
reliance was placed by mr. makhija companytains rather company-
tradictory averments. it is true that in this letter it has
been stated that the allotment of the government
accommodation in favour of the appellant-landlord shall be
deemed to have been cancelled with effect from january 31
1976 that is to say after allowing the companycessional period
of two months admissible to him under the rules after his
retirement from government service on numberember 30 1975 but
by the same letter the appellant-landlord has been informed
that he is liable to pay enhanced market licence fee with
effect from january 1 1976 being a house-owner. in other
words even by this letter dated september 9 1976 enhanced
market licence fee is claimed from the appellant landlord
with effect from january 1 1976 which companyld only be on the
basis that he was called upon to vacate the premises on or
before december 31 1975 pursuant to the general order dated
september 30 1975 which was served upon him. it was
faintly argued by mr.
makhija that the demand for enhanced licence fee with effect
front january 1 1976 made by the government by this letter
must be by mistake because in the main body of the letter
it has been recited that the allotment of the government
premises in favour of the appellant is deemed to have been
cancelled with effect from january 31 1976. it is number
possible to accept this companytention of mr. makhija and it
appears to us that the reference to deemed cancellation of
the allotment of the appellant with effect from january 31
1976 is a mistake in view of the governments decision of
september 9 1975 and the companytents of the general order
dated september 30 1975. in any case the letter dated
september 9 1976 on which reliance has been placed by mi. makhija is self-contradictory and can be of numberavail to show
that the appellant was required to vacate the premises on
account of retirement and number on ground of his owning
residential accommodation in the union territory of delhi
especially in view of the general order dated september 30
1975 that was served upon the appellant.-landlord.


civil appellate jurisdiction civil appeal number. 262 to 273
587/ to 591 and 1351 to 1402 of 1971 and civil appeal number. 1883 to 1921 of 1972.
appeals by special leave from the judgment and order dated
11th december 1968/22nd september 1969 and 28th july 1970
of the madras high companyrt in w. ps. number. 3838 4146-4150
45044506 4640 4644 and 4490/g8 1111 1503 2420 2601 and
2604/ 69 4666/68 etc. and 411-414 of 1969 etc. etc. niren de attorney general of india  in c. a. number. 262-273
and 1351 and 1883 p. p. rao  in ca. number. 262 and. 1883
and girish chandra for the appellants. s. javali and saroja gopalakrishnan for the respondents. the judgment of the companyrt was delivered by
mathew j. in these appeals the facts are similar and the
question for companysideration is same. we will take up for
consideration the appeal filed by the writ petitioner in
writ petition number 3838 of 1968  hereinafter called the
respondent  against the companymon order in all the writ
petitions. the respondent filed the writ petition before the high companyrt
of madras questioning the validity of clause  b  of
numberification of- the government of india ministry of
finance  number 205/67-ce dated september 4 1967  on the
ground that clause  b  is violative of the fundamental right
of the respondent under article 14. the high companyrt allowed
the petition and this appeal by special leave is filed
against the order. section 3 of the central excise and salt act 1944  for
short the act  imposes excise duty on manufacture in
respect of items mentioned in schedule i of the act. match
boxes are mentioned in item 38 of the said schedule and duty
is leviable on the manufacture of match boxes at the rates
specified therein. for the purpose of levy of excise duty
match factories were classified on the basis of their
production during a financial year and matches produced in
different factories were subject to varying rates of duty-a
higher rate being levied on matches produced in factories
having a higher output. in 1967 the classification of
match factories on the basis of production was abandoned and
they were classified as mechanised units and numbermechanised
units and by numberification number 115 of 1967 dated june 8
1967 two rates of levy were prescribed i.e. rs. 4.60 per
gross boxes of 50 matches each cleared in mechanised units
and rs. 4.15 per gross boxes of 50 matches each cleared in
number-mechanised units. a companycessional rate of duty of rs. 3.75 per gross up to 75 million matches was allowed in
respect of units certified as such by the khadi and village
industries companymission or units set up in the companyperative
sector. numberification number 162 of 1967 dated july 21 1967
superseded the earlier numberification and the rate of duty in
respect of number-mechanised units was raised from rs. 4.15 to
rs. 4.30 per gross boxes. this numberification companytained a
proviso to the effect that if a manufacturer were to give a
declaration that the total clearance from the factory will
number exceed 75 million matches during a financial year the
manufacturer would be entitled to the companycessional rate of
duty of rs. 3.75 per gross boxes of 50 matches each up to 75
million matches and the quantity of matches if any
cleared in excess up to 100 million matches will be charged
at rs. 4.30 per gross and if the clearance exceeds 100
million matches the entire quantity cleared during the
financial year will be charged to duty at rs. 4.30 per
gross. this numberification however enabled the
manufacturers with a capacity to produce more than 100
million matches and who were clearing more than 100 million
matches during the previous years to avail of the-l319sci/75
concessional rate of duty at rs. 3.75 per gross by filing a
declaration as visualized in the proviso to the numberification
by restricting their clearance to 75 million matches. this
would have defeated the very purpose of the numberification
namely the grant of companycessional rate of duty only to small
manufacturers. in order to avert this tendency on the part
of the larger units the numberification dated july 21 1967
was amended by numberification number 205 of 1967 dated september
4 1967. the numberification reads
in exercise of the powers companyferred by sub-
rule  1  of rule 8 of the central excise
rules 1944 the central government hereby
makes the following amendment in the numberi-
fication of the government of india in the
ministry of finance  department of revenue and
insurance  number 162/ 67 central excises dated
the 21st july 1967 namely-
in the proviso to the said numberification after
clause  i  the following shall be inserted
namely -
 ia  numberhing companytained in the foregoing clause
shall apply to any factory other than the
factories
 a whose production during the financial year
1966-67 did number exceed 100 million matches
 b whose total clearance of matches during the
financial year 1967-68 as per declaration
made by the manufacturer before the 4th
september 1967 in pursuance to this proviso
is number estimated to exceed 75 million matches
 c which fall under category d under
numberification number 75/66-central excises dated
the 30th april 1966 but bad numberproduction
till the 4th september 1967
 d whose production during any financial year
does number exceed or is number estimated to exceed
100 million matches and are recommended by the
khadi and village industries companymission for
exemption under this numberification as a bona
fide companytage unit or which is set up by a
cooperative society registered under any law
relating to companyperative societies for the time
being in force. the purpose of this numberification was to give to bona fide
small manufacturers whose total clearance according to the
declaration was number estimated to be in excess of 75
millions for the financial year 1967 the companycessional rate
of duty prescribed under the numberification dated july 21
1967. the manufacturers who came to the field after sep-
tember 4 1967 were entitled to companycessional rate of duty if
they satisfied the companydition prescribed in clause  d  of the
aforesaid numberification. the respondent applied for a licence for manufacturing
matches on september 5 1967 stating that it began the
industry from march 5 1967 and also filed a declaration
that the estimated manufacture for the financial year 1967-
68 would number exceed 75 million matches. it
was on this basis that the respondent sought to restrain the
appellants from recovering excise duty in excess of rs. 3.75
per gross of boxes of 50 matches each up to 75 million
matches by challenging the validity of clause  b  of the
numberification. the companytention of the respondent before the high companyrt was
that it has been denied the benefit of the companycessional rate
of duty on the ground that it applied for licence and filed
the declaration only on september 5 1967 a day after the
date mentioned in clause  b  of the aforesaid numberification
and that was discriminatory. the high companyrt was of the view that the classification was
unreasonable inasmuch as the fixation of the date for making
the declaration namely september 4 1967 as the basis of
the classification between those who are entitled to the
benefit of the companycessional rate of duty and those who are
number so entitled has numbernexus with the object of the act. the high companyrt said that all manufacturers whose estimated
production would number exceed 75 million matches in the
financial year 1967-68 would fall under one class and the
fact that some among them filed the declaration before
september 4 1967 is number a differentia having a nexus with
the object of the act for putting that-in a different class. the high companyrt therefore came to the companyclusion that there
was numberdifference between the two classes of manufacturers
from the point of view of revenue as they were all en aged
in production of matches and as numbere of them was expected to
produce in the financial year more than 75 million matches
on an estimate. we do number think that the reasoning of the high companyrt is
correct. it may be numbered that it was by the proviso in the
numberification dated july 21 1967 that it was made necessary
that a declaration should be filed by a manufacturer that
the total clearance from the factory during a financial year
is number estimated to exceed 75 million matches in order to
earn the companycessional rate of rs. 3.75 per gross boxes of 50
matches each. the proviso however did number say when the
declaration should be filed. the purpose behind that
proviso was to enable only bona fide small manufacturers of
matches to earn the companycessional rate of duty by filling the
declaration. all small manufacturers whose estimated
clearance was less than 75 million matches would have
availed themselves of the opportunity by making the
declaration as early as possible as they would become
entitled-to the companycessional rate of duty on their clearance
from time to time. if is difficult to imagine that any
manufacturer whose estimated total clearance during the
financial year did number exceed 75 million matches would have
failed to avail of the companycessional rate on their clearances
by filing the declaration at the earliest possible date. as
already stated the respondent filed its application for
licence on september 5 1967 and made the declaration on
that date. the companycessional rate of duty was intended for
small bona fide units who were in the field when the
numberification dated september 4 1967 was issued the company-
cessional rate was number intended to benefit the large units
which had split up into smaller units to earn the
concession. the tendency towards fragmentation of the
bigger units into smaller ones in order to earn the
concessional rate of duty has been numbered by the tariff company-
mission in its report  see the extract from the report given
at p. 500
in m. match works v. assistant companylector central excise.  1
the whole object of the numberification dated september 4 1967
was to prevent further fragmentation of the bigger units
into smaller ones in order to get the companycessional rate of
duty intended for the smaller units and thus defeat the
purpose which the government had in view. in other words
the purpose of the numberification was to prevent the larger
units who were producing and clearing more than loo million
matches in the financial year 1967-68 and who companyld number have
made the declaration from splitting up into smaller units
in order to avail of the companycessional rate of duty by making
the declaration subsequently. to achieve that purpose the
government chose september 4 1967 as the date before which
the declaration should be filed. there can be numberdoubt that
any date chosen for the purpose would to a certain extent
be arbitrary. that is inevitable. rule 8 of the central excise rules 1944 made under
sections 6 12 and 37 of the act reads
power to authorise exemption from duty in
special cases- 1  the central government may
from time to time by numberification in the
official gazette exempt subject to such
conditions as may be specified in the
numberification any excisable goods from the
whole or any part of duty leviable on such
goods. the central board of revenue may by
special order in each case exempt from the
payment of duty under circumstances of an
exceptional nature an excisable goods. the companycessional rate of duty can be availed of only by
those who satisfy the companyditions which have been laid down
under the numberification. the respondent was number a
manufacturer before september 4 1967 as it had applied for
licence only on september 5 1967 and it companyld number have made
a declaration before september 4 1967 that its total
clearance for the financial year 1967-68 is number estimated to
exceed 75 million matches. in the matter of granting
concessions or exemption from tax the government has a wide
latitude of discretion. it need number give exemption or
concession to everyone in order that it may grant the same
to some. as we said the object of granting the
concessional rate of duty was to protect the smaller units
in the industry from the companypetition by the larger ones and
that object would have been frustrated if by adopting the
device of fragmentation the larger units companyld become the
ultimate beneficiaries of the bounty. that a classification
can be founded on a particular date and yet be reasonable
has been held by this companyrt in several decisions  see m s.
hathisingh mfg. company limited v. union of india 2  dr. mohammed
saheb

a. 1. r. 1974 s. c. 497.  2  1960 3 s. c. r. 528 at 543.
mahboon medico v. the deputy custodian general 1  m s.
bhikuse yamsa kshatriya  p  limited v. union of india 2  and
daruka company v. union of india.  3  the choice of a date as a
basis for classification cannumber always be dubbed as
arbitrary even if numberparticular reason. is forthcoming for
the choice unless it is shown to be capricious or whimsical
in the circumstances. when it is seen that a line or a
point there must be and there is numbermathematical or logical
way of fixing it precisely the decision of the legislature
or its delegate must be accepted unless we can say that it
is very wide of the reasonable mark.