civil appellate jurisdiction civil appeal number 112 of 1958.
appeal from the judgment and decree dated may 25 1954 of
the punjab high companyrt in l.p.a. number 82 of 1948.
naunit lal and t. m. sen for the appellant. t. desai chatter behari and a. g. ratnaparkhi for the
respondent. 1961. september 5. the judgment of the companyrt was delivered
by
shah j.-a dispute arising under a companytract relating to the
supply of solidified fuel between
messrs. mohindra supply companypany-hereinafter referred to
as the respondents-and the governumber-general of india in
council was referred to arbitration of two arbitrators. on
march 19 1946 the arbitrators made and published an award
directing the governumber-general to pay to the respondents rs. 47250/- with interest at 3 from july 171944 till
payment. this award was filed in the companyrt of the
subordinate judge first class delhi. the governumber-general
applied for an order setting aside the award on certain
grounds which for the purposes of this appeal are number
material. the subordinate judge refused to set aside the
award on the grounds set up and rejected the application. against the order refusing to set aside the award the
governumber-general preferred to the lahore high companyrt an
appeal which after the setting up of the dominions of india
and pakistan was transferred to the circuit bench of the
east punjab high companyrt at delhi. falshaw j. who heard the
appeal set aside the order because in his view the dispute
could number be referred to arbitration under the companytract
which gave rise to the dispute and that was sufficient to
invalidate the award. against that order an appeal was
preferred under cl.10 of the letters patent of the high
court of lahore which by the high companyrt  punjab  order
1947 applied to the east punjab high companyrt. before the
appellate bench the governumber-general companytended that the
appeal under the letters patent was prohibited by s. 39 2
of the indian arbitration act. the question whether the
appeal was maintainable was referred to a full bench of the
high companyrt. the full bench opined that an appeal from the
judgment of a single judge exercising appellate powers did
lie under cl. 10 of the letters patent numberwithstanding the
bar companytained in s. 39 2  of the arbitration act. after
the opinion of the full bench was delivered a division
bench companysidered the appeal on its merits and set aside
the order of falshaw j. the union of india appeals against
the decision of the high companyrt. in this appeal we are only companycerned with the question
whether the appeal under el. 10 of the letters patent of the
high companyrt against the order of falshaw j. was
maintainable. the proceedings relating to arbitration are
since the enactment of the indian arbitration act x of 1940
governed by the provisions of that act. the act is a
consolidating and amending statute. it repealed the
arbitration act of 1899 schedule 2 of the companye of civil
procedure and also cls.  a  to  f  of s. 104 1  of the companye
of civil procedure which provided for appeals from orders in
arbitration proceedings. the act set up machinery for all
contractual arbitrations and its provisions subject to
certain exceptions apply also to every arbitration under
any other enactment for the time being in force as if the
arbitration were pursuant to an arbitration agreement and as
if that other enactment were an arbitration agreement
except in so far as the arbitration act is inconsistent with
that other enactment or with any rules made thereunder. section 39 of the act which deals with appeals provides

an appeal shall lie from the following
orders passed under this act  and from no
others  to the companyrt authorised by law to hear
appeals from original decrees of the companyrt
passing the order
an order-

superseding an arbitration

on an award stated in the form of a
special ease

modifying or companyrecting a award
 iv  filing or refusing to file an
arbitration agreement
 y  staying or refusing to stay legal
proceedings where there is an arbitration
agreement

setting aside or refusing to set aside
an award
provided that the provisions of this section shall number apply
to any order passed by a small cause companyrt. numbersecond appeal shall lie from an order passed in
appeal under this section but numberhing in this section shall
affect or take away any right to appeal to the supreme
court. the two sub-sections of s. 39 are manifestly part of a
single legislative pattern. by sub-s.  1  the right to
appeal is companyferred against the specified orders and against
numberother orders and from an appellate order passed under
sub-s.  1  numbersecond appeal  except an appeal to this companyrt
lies. on the question whether the interdict in sub-s.  2
operates against an appeal under the letters patent there
has been a divergence of opinion amongst the high companyrts in
india. the bombay high companyrt in madhavdas v. vithaldas  1
held that there is numberfurther right of appeal under the
letters patent when a single judge of the high companyrt
disposed of an appeal under s. 39  1  of the arbitration
act. the same view was expressed by the madras high companyrt
in radha krishna murthy v. ethirajulu 2 . in hanuman
chamber of companymerce limited delhi v. jassa ram hira nand  3
and banwari lal ram dev v. the board of trustees hindu
college  4  it was held that a right to appeal under the
letters patent against an order passed in appeal under s.
39 1  is number restricted by s. 39 2 . in the view of the
lahore and the east punjab high companyrts appeals prohibited by
sub-s.  2  were second appeals i.e. appeals under s. 100
of the civil procedure companye and intra-court appeals such
as appeals under the

i.l.r.  1952  bom. 570.

i.l.r.  1945  mad. 564.

a.i.r.  1948  lah. 64.

i.l.r.  1948  e.p. 159.
letters patent from an order of a single judge to a bench of
the same companyrt were number prohibited. the madras high companyrt
in a recent judgment-mulchand kewal chand daga v. kissan das
gridhardass  1  has overruled its earlier decision in radha
krishna murthys case and has held that s. 39 deals only
with appeals from orders passed by a companyrt to a superior
court and number with appeals intra-court and therefore s.
39 2  does number operate to prohibit an appeal under the
letters patent against the order of a single judge
exercising appellate jurisdiction in an arbitration matter. section 39 2  expressly prohibits a second appeal from an
order passed in appeal under s. 39 1  except an appeal to
this companyrt. there is clear indication inherent in sub-s.
 2  that the expression second appeal does number mean an
appeal under s. 100 of the companye of civil procedure. to the
interdict of a second appeal there is an exception in
favour of an appeal to this companyrt but an appeal to this
court is number a second appeal. if the legislature intended
by enacting s. 39 2  nearly to prohibit appeals under s. 100
of the companye of civil procedure it was plainly unnecessary
to enact an express provision saving appeals to this companyrt. again an appeal under s. 39 1  lies against an order
superseding an award. or modifying or companyrecting an award
or filing or refusing to file an arbitration agreement or
staying or refusing to stay legal proceedings where there is
an arbitration agreement or setting aside or refusing to set
aside an award or on an award stated in the form of a
special case. these orders are number decrees within the
meaning of the companye of civil procedure and have number the
effect of decrees under the arbitration act. section 100 of
the companye of civil procedure deals with appeals from appel-
late decrees-and number with appeals from appellate
 1   1961  74 l.w. 408 f.b. orders. if by enacting s. 39 2  appeals from appellate
decrees were intended to be prohibited the provision was
plainly otiose and unless the companytext or the circumstances
compel the companyrt will number be justified in ascribing to the
legislature an intention to enact a sterile clause. in that
premise the companyclusion is inevitable that the expression
second appeal used in s. 39 2  of the arbitration act
means a further appeal from an order passed in appeal under
s. 39 1  and number an appeal under s. 100 of the civil
procedure companye. this view was expressed by savdekar j. in
madhavdass v. vithaldas  1  and by rajamannar c. j. in
mulchand kewal chand daga v. kissan das gridhardass  2  and
we agree with the learned judges that the adjective imports
a further appeal that is numerically second appeal. the problem to which attention must then be directed is
whether the right to appeal under the letters patent is at
all restricted by s. 39 sub-ss.  1  and 2 . clause 10 of
the letters patent of the high companyrt in so far- as it is
material provides
and we do further ordain that an ap. peal
shall lie to the said high companyrt  from
the judgment  number being a judgment passed in
exercise of appellate jurisdiction in respect
of a decree or order made in the exercise of
appellate jurisdiction by a companyrt subject to
the superintendence of the said high companyrt and
number being an order made in the exercise of
revisional jurisdiction of one judge of the
high companyrt
by this clause a right to appeal except in the cases
specified from one judge of the high companyrt to a division
bench is expressly granted. but the letters patent are
declared by el. 37 subject to the legislative power of the
covernumber-general in companyncil and also of the governumber-in-
council under

i.l.r. 1952 bom. 570.  2   1961  74 l.w. 408 f.b. the companyernment of india act 1915 and may in all respects be
amended or altered in exercise of legislative authority. under s. 39 1  an appeal lies from the orders specified in
that sub-section and from numberothers. the legislature has
plainly expressed itself that the right of appeal against
orders passed under the arbitration act may be exercised
only in respect of certain orders. the right to appeal
against other orders is expressly taken away. if by the
express provision companytained in s. 39 1  a right to appeal
from a judgment which may otherwise be available under the
letters patent is restricted there is numberground for holding
that clause  2  does number similarly restrict the excercise of
appellate power granted by the letters patent. if for
reasons aforementioned the expression second appeal
includes an appeal under the letters patent it would be
impossible to hold that numberwithstanding the express
prohibition an appeal under the letters patent from an
order passed in appeal under sub-s. 1  is companypetent. the punjab high companyrt in banwari lal ram dev v. the board of
trustees hindu companylege  1  and the lahore high companyrt in
hanuman chamber of companymerce limited delhi v. jassa ram hira
nand held that the appeals companytemplated by s. 39 are appeals
to superior companyrts and number intra-court appeals and
therefore the right to appeal under the letters patent was
number restricted by sub-ss.  1  and  2 . but a little
analysis of this argument is likely to exhibit the somewhat
startling companysequences. if the appeal companytemplated by s. 39
 1  is only an appeal to a superior companyrt orders passed by
a subordinate companyrt decisions whereof are made appealable to
the same companyrt will number be appealable at all under the
arbitration act. for instance under the bombay civil
courts act certain decisions of assistant judges are made
appealable to the district companyrts. an assistant judge is a
judge of the district companyrt and under the bombay

i. l. r.  1948  e. p. 159.

a. i. r.  1948  lah 64
civil companyrts act appeals against his orders and decrees in
certain cases lie to the district companyrt. if the argument
that an appeal under el.  1  of s.39 means an appeal to a
superior companyrt be accepted an appeal from an order under
s. 39  1  by an assistant judge will number lie at all. there
are similar provisions in the civil companyrts acts in the other
states as well. the qualifying expression to the companyrt
authorised by law to hear appeals from original decrees of
the companyrt passing the order in s. 39  1  does number import
the companycept that the appellate companyrt must be distinct and
separate from. the companyrt passing the order or the decree. the legislature has number so enacted and the companytext does number
warrant such an interpretation. the clause merely indicates
the forum of appeal. if from the decision of a companyrt
hearing a suit or proceeding an appeal will lie to a judge
or more judges of the same companyrt by virtue of s. 39  1  the
appeal will lie from the order passed under the arbitration
act if the order is appealable to such judge or judges of
that companyrt. the argument that the right to file an appeal
to the supreme companyrt from orders in arbitration proceedings
would be seriously restricted has in our view numbersubstance. if an order passed in a proceeding on the original side of
the high companyrt is appealable under s. 39  1  an-appeal will
lie to a division bench of the high companyrt and from the
order passed by the division bench an appeal by the
express provision companytained in sub-s.  2  will lie subject
to the restrictions companytained in the relevant articles of
the companystitution to the supreme companyrt. if the order is number
one falling within s. 39  1  numberappeal will evidently lie. it is true that against an order passed in arbitration
proceeding by a division bench of a high companyrt in an
appeal an appeal to this companyrt as a matter of right may
lie if the requirements of art. 133 are fulfilled but if
the same case is heard by a single judge no
such appeal will lie. but the right to appeal is a creature
of statute numberlitigant has an inherent right to appeal
against a decision of a companyrt. the anumberaly relied upon by
the appellant occurs in second appeals and revision
applications as well. if these proceedings are heard and
disposed of by single judges there is numberright of appeal to
this companyrt but against decisions of division benches the right
to appeal may be exercised. but it was urged that the interpretation of s. 39 should
number be divorced from the setting of legislative history and
if regard be had to the legislative history and the dictum
of the privy companyncil in hurrish chunder chowdry v. kali
sundari debia  1  which has been universally followed in
considering the extent of the right of appeal under the
letters patent the companyrt would number be justified in
restricting the right of appeal which was exercisable till
1940 by litigants against decisions of single judges of high
courts in arbitration matters from orders passed in appeals. in companysidering the argument whether the right of appeal
which was previously exercisable by litigants against
decisions of single judges of the high companyrts in appeals
from orders passed in arbitration proceedings was intended
to be taken away by s. 39  2  of the indian arbitration act
the companyrt must proceed to interpret the words of the statute
without any predisposition towards the state of the law
before the arbitration act was enacted. the arbitration act
of 1940 is a companysolidating and amending statute and is for
all purposes a companye relating to arbitration. in dealing
with the interpretation of the indian succession act 1865
the privy companyncil in
 1   1882  l. r. 10 i. a. 417.
narendra nath sircar v. kamlabasini dasi 1  observed that a
code must be companystrued according to the natural meaning of
the language used and number on the presumption that it was
intended to leave the existing law unaltered. the judicial
committee approved of the observations of lord herschell in
bank of england v. vaglianumberbrothers 1  to the following
effect -
i think the proper companyrse is in the first
instance to examine the language of the
statute and to ask what is its natural meaning
uninfluenced by any companysiderations derived
from the previous state of the law and number to
start with inquiring bow the law previously
stood and then assuming that it was probably
intended to leave it unaltered to see if the
words of the enactment will bear an
interpretation in companyformity with this view. if a statute intended to embody in a companye a
particular branch of the law is to be treated
in this fashion it appears to me that its
utility will be almost entirely destroyed and
the very object with which it was enacted will
be frustrated. the purpose of such a statute
surely was that on any point specifically
dealt with by it the law should be ascertained
by interpreting the language used instead of
as before by roaming over a vast number of
authorities in order to discover what the law
was extracting it by a minute critical
examination of the prior
decisions . the companyrt in interpreting a statute must therefore proceed
without seeking to add words which are number to be found in
the statute number is it permissible in interpreting a statute
which companyifies a branch of the law to start with the
assumption that it was number intended to alter the pre-
existing law number to add words which are number to be found in
the statute or
 1   1896  l. r. 23 i. a. 18.  2  1891 a.c. 107 144-145.
for which an authority is number found in the statute. but
we do number propose to dispose of the argument merely on these
general companysiderations. in our view even the legislative
history viewed in the light of the dictum of the privy
council in hurrish chunders case does number afford any
adequate justification for departing from the plain and
apparent intendment of the statute. under the companye of civil procedure of 1877 a right of appeal
was companyferred upon litigants against certain orders by s.
588 and from numberother such orders. clauses  s  and  t
dealt with a right to appeal against an order under s. 514
superseding an arbitration and an order under s.518
modifying an award. it was enacted-in the last paragraph
that the orders passed in appeals under the section shall be
final. by paragraph 2 of s. 589 it was provided
when an appeal from any order is allowed by
this chapter it shall lie to the companyrt to
which an appeal would lie from the decree in
the suit in relation to which such order was
made
by s. 591 it was provided
except as provided in this chapter numberappeal
shall lie from an order passed by any companyrt in
the exercise of its original or appellate
jurisdiction. the companye of 1877 was replaced by the companye of 1882 but the
provisions relating to appeals from orders were re-enacted
in identical terms. before the decision in hurrish
chunders case the view was held especially by the bombay
and the madras high companyrts that under cl.  15  of the
letters patent of the high companyrts of bombay madras and
calcutta an appeal from an order passed by a single judge of
a high companyrt lay only under s. 588
of the companye and number otherwise. in sonba v. ahmed bha
habibha  1  a full bench of the bombay high companyrt in
construing the provisions of the letters patent of the high
court in the light of the provisions of s. 363 of the civil
procedure companye held that under cl. 15 of the letters patent
and under the rules of the high companyrt an appeal to the high
court from an interlocutory order mad  by one of the judges
lies only in those cases in which an appeal is allowed under
the companye of civil procedure and its amending acts. a
similar view was expressed by the madras high companyrt in
achaya v. ratrandu  2 . but the privy companyncil in hurrish
chunder chowdry v. kali sundari debia  3  in a very terse
observation expressed a different view in that case one
kassiswari executed a will devising a taluk in equal shares
to her daughter chundermoni and her daughter-in-law kali
soondari. after the death of kassiswari the two devisees
under the will sued one hurrish chunder for a decree for
possession of the taluk. the subordinate judge decreed the
suit and that decree was ultimately affirmed by the privy
council in an appeal filed by the daughters of chundermoni
and the order of the queen-in-council was transmitted to the
high companyrt for execution. in the meanwhile chundermonis
moiety in the taluk was purchased by hurrish chunder. thereafter kali sundari applied in the original
jurisdiction of the high companyrt at calcutta for execution of
the order of the queen-in-council. pontifox j. declined
to execute the order because in his view it companyld number be
executed by one only out of the two original plaintiffs. against that order an appeal was preferred under cl. 15 of
the letters patent of the high companyrt. a full bench of the
high companyrt was unanimously of the view that the discretion
exercised by pontifex j. was erroneous but in the view of
garth c. j. the order passed by pontifex j. was merely a
ministerial order which he
1872  9 bom. r. c. reports 398.  2  i.l.r. 9 mad. 447.  3   1882  l.r. 10 i. a. 4 17.
had numberjurisdiction to pass and the appeal was incompetent. white and romeshchunder mitter jj. held that the order
amounted to a judgment and was appealable under cl. 15 of
the letters patent. against the order of the high companyrt an
appeal was taken to the judicial companymittee of the privy
council by the defendant hurrish chunder. the judicial
committee approved of the majority view of the high companyrt. in negativing the argument of garth c.j. the companymittee
pointed out that pontifex j. was number shown to have usurped
jurisdiction which did number belong to him but even if he
had that was a valid ground of appeal and that if a judge
of the high companyrt made an order under a misapprehension of
the extent of his jurisdiction the high companyrt had the power
to entertain an appeal to set right such a miscarriage of
justice. the companymittee then observed
it only remains to observe that their
lordships do number think that s. 588 of act x of
1877 which has the effect of restricting
certain appeals applies to such a case as
this where the appeal is from one of the
judges of the companyrt to the full companyrt. this judgment  in hurrish chunder chowdrys case  gave rise
to a serious companyflict of opinion in the high companyrts in
india. the high companyrts of calcutta bombay and madras held
following the dictum of the privy companyncil that an order number
appealable under s. 588 of the civil procedure companye may
still be appealable provided it amounted to a judgment
within the meaning of cl. 15 of the letters patent of the
respective high companyrts.-chappan v. moidin kutti  1
chabhapathi chetti v. narayanaswami chetti 2  toolsee money
dassee v. sudevi dassee  3   and secretary of state v.
jehangir  4 . but the allahabad high companyrt in bannumberbibi v. mehdi
husain  1  expressed a companytrary opinion. it was observed by
sir john edge c. j. that if the

i.l.r.  1899  22 mad. 68.

i.l.r.  1902  25 mad. 555

ll.r. 1899 26cal.363.  4  1902 4 bom. 342.

i.l.r.  1889  11 all. 375.
order was number appealable under s. 588 and s. 591 of the companye
of civil procedure it companyld number be appealed against under
the letters patent of the high companyrt. this view was
affirmed by a full bench of the same companyrt in muhammad naim-
ul-lah khan v. ihsan-ul-lah khan  1 . the legislature in this state of affairs intervened and in
the companye of 1908 incorporated a. 4 which by the first sub-
section provided
in the absence of any specific provision to
the companytrary numberhing in this companye shall be
deemed to limit or otherwise affect any
special or local law number in force or any
special jurisdiction or power companyferred or
any special form of procedure prescribed by
or under any other law for the time being in
force-
and enacted in s. 104 1  that an appeal shall lie from the
orders set out therein and save as otherwise expressly
provided in the body of the companye or by any law for the time
being in force from numberother orders. the legislature also
expressly provided that numberappeal shall lie from any order
passed in appeal under this section. section 105 was substantially in the fame terms as s. 591 of
the earlier companye. the intention of the legislature in enacting sub-s.  1  of
s. 104 is clear the right to appeal companyferred by any other
law for the time being in force is expressly preserved. this intention is emphasised by s. 4 which provides that in
the absence of any specific provision to the companytrary
numberhing in the companye is intended to limit or otherwise affect
any special jurisdiction or power companyferred by or under any
other law for the time being in force. the right to appeal
against judgments  which did number amount to decrees  under
the letters patent was therefore number affected by s. 104  1
of the companye of civil procedure 1908.

i.l.r.  1892  14 all. 226.
under the companye as amended the view has companysistently been
taken that interlocutory judgments  i.e. decisions though
number amounting to decrees which affect the merits of the
questions between the parties by determining some right or
liability  passed by single judges of chartered high companyrts
were appealable under the letters patent ruldu singh v.
sanwal singh 1  paramasivan v. ramasami  2  vaman ravji
kulkarni v. nagesh vishnu joshis  3  and ram sarup v.
kaniz ummebani  4 . prior to 1940 the law relating to companytractual arbitration
 except in so far as it was dealt with by the arbitration
act of 1899  was companytained in the companye of civil procedure
and certain orders passed by companyrts in the companyrse of
arbitration proceedings were made appealable under the companye
of 1877 by s.588 and in the companye of 1908 by s. 104. in
1910 the legislature enacted act x of 1940 repealing
schedule 2 and s. 104  1  cls.  a  to  f  of the companye of
civil procedure 1908 and the arbitration act of 1899. by s.
39 of the act a right of appeal was companyferred upon
litigants in arbitration proceedings only from certain
orders and from numberothers and the right to file appeals from
appellate orders was expressly taken away by sub-s. 2 and
the clause in s. 104 of the companye of 1908 which preserved the
special jurisdiction under any other law was incorporated in
s. 39. the section was enacted in a form which was absolute
and number subject to any exceptions. it is true that under
the companye of 1908 an appeal did lie under the letters patent
from an order passed by a single judge of a chartered high
court in arbitration proceedings even if the order was
passed in exercise of appellate jurisdiction but that was
so because the power of the companyrt to hear appeals under a
special law for the time being in operation was expressly
preserved.  1   1922  3 lah. 188.  2  i.l.r.  1933  56 mad. 915.

i.l.r.  1940  bom.426.  4  i.l.r.  1937  all. 386.
there is in the arbitration act numberprovision similar to s. 4
of the companye of civil procedure which preserves powers
reserved to companyrts under special statutes. there is also
numberhing in the expression authorised by law to hear appeals
from original decrees of the companyrt companytained in s. 39 1  of
the arbitration act which by implication reserves the
jurisdiction under the letters patent to entertain an appeal
against the order passed in arbitration proceedings. therefore in so far as letters patent deal with appeals
against orders passed in arbitration proceedings they must
be read subject to the provisions of s. 39 1  and  2  of the
arbitration act. under the companye of 1908 the right to appeal under the
letters patent was saved both by s. 4 and the clause
contained in s. 104 1  but by the arbitration act of 1940
the jurisdiction of the companyrt under any other law for the
time being in force is number saved the right of appeal can
therefore be exercised against orders in arbitration
proceedings only under s. 39 and numberappeal  except an
appeal to this companyrt  will lie from an appellate order. there is numberwarrant for assuming that the reservation clause
in s. 104 of the companye of 1908 was as companytended by companynsel
for the respondents superfluous or that its deletion
from s. 39 1  has number made any substantial difference the
clause was enacted with a view to do away with the unsettled
state of the law and the cleavage of opinion between the
allahabad high companyrt on the one hand and calcutta bombay
and madras high companyrts on the other on the true effect of s.
588 of the companye of civil procedure upon the power companyferred
by the letters patent. if the legislature being companynizant
of this difference of opinion prior to the companye of 1908 and
the unanimity of opinion which resulted after the amendment
chose number to include the reservation clause
in the provisions relating to appeals in the arbitration act
of 1940 the companyclusion is inevitable that it was so done
with a view to restrict the right of appeal within the
strict limits defined by s. 39 and to take away the right
conferred by other statutes. the arbitration act which is a
consolidating and amending act being substantially in the
form of a companye relating to arbitration must be companystrued
without any assumption that it was number intended to alter the
law relating to appeals. the words of the statute are plain
and explicit and they must be given their full effect and
must be interpreted in their natural meaning uninfluenced
by any assumptions derived from the previous state of the
law and without any assumption that the legislature must
have intended to leave the existing law unaltered. in our
view the legislature has made a deliberate departure from
the law prevailing before the enactment of act x of 1940 by
codifying the law relating to appeals in s. 39.
in that view of the case the appeal must allowed.


civil appellate jurisdiction civil appeal number 691 of
1970.
appeal by special leave from the judgment and order
dated 12-8-1969 of the mysore high companyrt in civil revision
petition number 1322 of 1967.

s. javali m. veerappa and j. r. das for the
appellant. c. javali p. g. gokhale and b. r. agarwala for the
respondents. the judgment of the companyrt was delivered by
gupta j.-the only question that arises for decision in
this appeal by special leave is whether the respondents
before us are entitled to relief under section 25 ii  of the
bombay agricultural debtors relief act 1947. the question
arises on the following facts. on june 1 1927 the
predecessors-in-interest of the appellants transferred to
one krishnaji two plots of land bearing survey numbers 125/1
and 136 measuring respectively 14.5 and 21.31 acres in
village murnal bagalkot taluk in bijapur district. the
document by which the transfer was effected described as a
sale deed shows that the two items of property were sold
absolutely for a total sum of rs. 2000/-. in 1932
krishnaji sold the plot bearing survey number 136 to one
ramanna predecessor-in-interest of respondent number. 2 a  to
2 e . for rs. 400/-. in 1935 krishnaji sold the other plot
survey number 125/1 for rs. 1000/ to utalsab dogrisab. walikar predecessor-in-interest of respondents 1 a  to
1 c . after the bombay agricultural debtors relief act 1947
came into force the appellants applied under section 4 of
the act for adjustment of debts claiming that the
transaction in 1927 was really number a sale but a mortgage. the trial companyrt held that the transaction was a mortgage and
number a sale but dismissed the application on the view that
the respondents were entitled to protection under section
25 ii  of the act. the district judge reversed the decision
and allowed the application under section 4. the matter was
taken to the high companyrt in revision and the high companyrt
recorded a companysent order that the tran-
saction was number a sale but a mortgage and remitted the case
to the trial companyrt for a decision on the question whether
the purchasers ramanna and walikar were transferees for
value without numberice of the real nature of the transaction
between the appellants predecessors and krishnaji and as
such entitled to the protection of section 25 ii . this
order of the high companyrt was made on january 25 1963. at
this stage we may mention that our attention was drawn to an
order made in the same matter by the high companyrt on january
31 1962 which is reported in 1962 mysore law journal 682
that shows that the same learned judge had set aside the
order of the appellate companyrt and restored that of the trial
court. companynsel for both sides appeared to think that the
order made by the high companyrt in 1962 must have been set
aside later on review though neither of them was able to
produce the order by which the 1962 order had been set
aside. however both learned companynsel agreed that for the
purpose of this appeal it is the order of the high companyrt
made on january 25 1963 that need be companysidered. that the
1963 order held the field would be apparent from the fact
that the case was reconsidered by the trial companyrt as
directed by the aforesaid order. the trial companyrt on hearing
the matter after remand dismissed the application under
section 4 on the finding that the purchasers were bona fide
transferees for value without numberice of the real nature of
the original transaction. the lower appellate companyrt reversed
this decision. the purchasers then moved the high companyrt in
revision from the order passed by the appellate companyrt. the
high companyrt by the impugned order set aside the order of the
appellate companyrt and restored that of the trial companyrt
agreeing with the trial companyrt that the purchasers had no
numberice of the real nature of the transaction of 1927.
section 24 of the bombay agricultural debtors relief
act 1947 empowers the companyrt to declare any transfer of land
by a person whose debts are being adjusted under this act
purporting to be a sale to be a mortgage if the companyrt was
satisfied that the circumstances companynected with the transfer
showed it to be in the nature of a mortgage. section 25 ii
provides that numberhing in section 24 shall apply to any bona
fide transferee for value without numberice of the real nature
of such transfer or his representative where such transferee
or representative holds under a registered deed executed on
or before the 15th day of february 1939. the document
evidencing the transfer of the plots to krishnaji in 1927 is
discribed as a sale deed and companytains a statement that the
vendors have absolutely sold both the said lands to
krishnaji and that the entire ownership was krishnajis
alone. it is also said that possession of the lands has
also been given to krishnaji. the high companyrt found that the
purchasers from krishnaji had numberactual knumberledge or
numberice of the real nature of the transaction in 1927. but
the high companyrt also held that the numberice companytemplated in
section
25 ii  was actual numberice and that companystructive numberice was
clearly beyond the companytemplation of section 25 ii . it
seems to us that companystruing the numberice referred to in
section 25 ii  as actual numberice only is likely to defeat the
purpose of the statute which was enacted to provide for the
relief of agricultural debtors in the province of bombay. we
are of the view that section 25 ii  does number exclude
constructive numberice. however on the facts of the case it
appears that the transferees had numbernumberice actual or
constructive of the real nature of the transaction of 1927.
it has been found that they had numberactual numberice the high
court appears to have also found that they had no
constructive numberice. referring to the provision of section
25 ii  requiring that the transferee must hold under a
registered deed executed on or before february 15 1939 the
high companyrt says
it will be seen that the reference is to a period
anterior to the companying into force of the act a period
therefore during which the special provisions of the
act companyld number have been within the companytemplation of
anybody. if those provisions were number in companytemplation
it is impossible to postulate a situation where any
given circumstance companyld be regarded as sufficient to
excite suspicion that the transaction might be hit by
the statute and therefore persuade people to start and
pursue further enquiries. mr. s. s. javali appearing for the appellants companytends that
the fact that the lands in question were transferred for a
smaller amount in 1932 and 1935 than the price krishnaji had
paid for them in 1927 was a circumstance that should have
put the transferees on enquiry and that if reasonable
enquiries had been made they would have had knumberledge of the
real nature of the transaction of 1927. the fact that the
lands were sold to the respondents for a price lower than
what they fetched in 1927 might have been due to various
reasons and it cannumber be said that this ground alone was
sufficient to raise a suspicion that the transaction of 1927
was really a mortgage. as pointed out by the high companyrt the
act of 1947 companyld number have been within the companytemplation of
anyone in 1932 or 1935. ramappa in his deposition said that
he paid rs.400/- for the land as it was fallow and that
if there were numberweeds the price would have been rs. 600/-. as for the land sold to utalsab he was dead when the matter
came up for hearing before the trial companyrt.


civil appellate jurisdiction c.a. number. 2004 of 1970 and
319 of 1971.
appeals by special leave from the judgment and order dated
the august 26 1970 of the madhya pradesh high companyrt in mis-
cellaneous petition number 302 of 1968.

k. daphtary and rameshwar nath for the appellant  in

a. number 2004 of 1970 . n. shroff for the appellant  in c.a. number 319 of 1971 . k. gambhir for respondent number 1  in both the appeals . rameshwar nath for respondent number 2  in c.a. number 319 of
1971 . the judgment of the companyrt was delivered by
beg j. there are two appeals by special leave before us
one by the municipal-corporation bhopal and anumberher by the
state of madhya pradesh against the judgment and order of a
division bench of the madhya pradesh high companyrt allowing a
writ petition filed by the respondent employee of the bhopal
municipal companyporation  hereinafter called the
corporation . the employees case was he was born on 1st july 1912
appointed a lower division clerk in april 1962 promoted as
a upper division clerk in february 1964. a general order
dated 21 december 1967  annexure a  had been passed by
the administrator municipal companyporation purporting to
carry out the orders of the government of madhya pradesh
which had decided that the age of companypulsory retirement of
all servants of the companyporation other than class iv
servants should be 55 years. the employee was informed of
it by a companymunication dated 22nd december 1967  annexure
b . the municipal companyporation of bhopal which was formerly
only a municipal companyncil became a companyporation when
provisions of the madhya pradesh municipal companyporation act
1956  hereinafter referred to as the act  were applied to
it from 25th august 1967 by an ordinance the provisions of
which were then embodied in an act. although the petitioner
had entered service of the municipal board of bhopal as a
result of the companytinuance of the service companyditions of the
employees of the former municipal board which had thus be-
come a companyporation the petitioning employee was to retire
at the age of 60 as laid down in numberification number 30 of 11th
numberember 1947  annexure c . but in 1955 when bhopal was a
part c state the government of bhopal had issued a
numberification dated 4th february 1955 applying the service
regulations of central government employees in part c
states. in this way the petitioning employees companyrect age
of retirement was 58. under the act of 1956 questions
relating to service companyditions of the employees of the
corporation were to be regulated by bye-laws under section
427 1-c  b  of the act and number by rules to be made by the
government. the government of madhya pradesh had however
issued a numberification in the gazette of 22nd december 1967
purporting to reduce the age of retirement of first and
second and third grade employees from 60 years to 55 years
by amending the government numberification number 30 dated 11th
numberember 1947. it was number clear to the petitioning employee
whether the orders of 21st december 1967 were in
pursuance of any gazette numberification or whether they have
been passed after a proper amendment of their bye-laws in
accordance with the procedure laid down in section 432 of
the act. in any case the validity of the order of 21st
december 1967 was challenged. the judgment under appeal shows that it was argued on behal
f of the petitioning employee that the procedure laid
down by the act for amending a bye-law was number followed. the madhya pradesh high companyrt had accepted this companytention
and rejected the argument put forward on behalf of the
corporation and its administrator that the amendment in
quest-ion was governed by the provisions of section 433 of
the act. it had therefore quashed the numberification dated
22nd december 1967 which purported to have been made in
exercise of powers vested in the government under section
432 of the act as well as an order dated 30th december
1967  annexure r-1  the relevant part of which reads as
follows -
in pursuance of the numberification number 10678/
4251/xviii-u-11 dated the 22/12/67 shri
misbahul hasan udc account section who has
attained the age of companypulsory retirement is
hereby sanctioned 120 days earned leave w.e.f. 1/1/1968 as leave preparatory to retirement. he will stand retired w.e.f. 1/5/1968 on
expiry of the leave sanctioned to him stated
above. mr. daphtary appearing on behalf of the companyporation appel-
lant has companytended that the procedure laid down in section
of the act was merely meant to give the companyporation
concerned an opportunity of putting forward its views by
means of any representation it may like to make with regard
to any proposal of the government to modify or repeal any
bye-law. the learned companynsel submitted that as the
corporation had numberobjection whatsoever to the amendment of
the age of retirement of class i and ii and iii employees
it was number open to the petitioning employee to raise any
objection on the ground that the prescribed procedure had
number been followed. this argument proceeds on the assumption
that there was already a bye-law regulating the age of
retirement of employees of classes i ii and iii of the
corporation and that the government was purporting to
follow the procedure laid down by section 432 of the act in
amending that bye--law. we may here reproduce the provisions of section 432 of the
act which run as follows

government may modify or repeal bye-
laws.-

if it shall at any time appear to the
government that any bylaw should be modified
or repealed either wholly or in part it shall
cause its reasons for such opinion to be
communicated to the companyporation and prescribe
a reasonable period within which the
corporation may make any representation with
regard thereto which it shall think fit. after receipt and companysideration of any
such representation or if in the meantime no
such representation is received after the
expiry of the prescribed period the
government may at any time by numberification in
the gazette modify or repeal such bye-law
either wholly or in part. the modification or repeal of a bye-law
under sub-section  2  shall take effect from
such date as the government shall in the said
numberification direct or if numbersuch date is
specified from the date of the publication of
the said numberification in the gazette except
as to anything done or suffered or om
itted to
be done before such date. it is admitted by both sides that at the relevant time
them powers of the companyporation were vested in the
administrator under the provisions of section 432 sub-s  1
of the act. the only question according to the
corporation is whether the administrator acting as the
corporation should number forego the right of companyporation to
make any representation with regard to a
proposal of the government to amend a bye-law. in other
words the modification or amendment of a bye-law under
section 432 of the act was a matter of companycern only to the
government and to the companyporation and to numberody else. if
therefore there was any infringement of its technical
procedural requirements it was only for the companyporation and
numberody else according to this companytention to raise the
objection. the broad proposition put forward before us is
that the requirements of a procedure intended for the
benefit of a party companyld be dispensed with if that party
itself chooses that this should be done. it is pointed out
that the only object of the procedure provided by section
432 was that the proposals of the government may be duly
considered by the companyporation so as to enable it to
represent its views. there was numberobligation upon the
corporation to make a representation. if the companyporation
did number choose to make a representation after the
government had sent its reasons for its opinion to the
corporation and had asked for the representation within a
prescribed period the failure of the companyporation to make
any representation would far from depriving the government
of the power to issue a numberification modifying or repealing
a bye-law wholly or in part in accordance with its opinion
enable it to do so. the mere order in which a proposal is
made and assent to it is given by the companyporation it was
urged should number make any difference as there was
substantial companypliance with prescribed procedure. in the appeal filed on behalf of the state of madhya
pradesh the main companytention is that the rule making powers
of the government under section 433 of the act are very wide
so that the state companyld make rule for the purpose of
carrying into effect the provisions of the act. it is
urged that the act imposed a duty and companyferred a power upon
the companyporation to frame bye-laws relating to companyditions of
service of its employees as laid down in section 427  1-c
 b  of the act. the government companyld make a rule if the
corporation failed to make bye-law on a subject. the
correctness of the view of the high companyrt that the matter
did number fall within the purview of section 433 of the act
was assailed. anumberher companytention put forward on behalf of the state of
madhya pradesh was that the petitioning employee had number im-
pleaded either the state or the government of the madhya
pradesh so that a numberification of the state government
could number observe here that this ground is number taken in
the special leave petition of the state of madhya pradesh
by means of which its appeal has companye up before us. numbersuch
objection was taken on behalf of the companyporation in the
special leave petition filed by
it. number was any such argument advanced on behalf of the
corporation before the high companyrt. paragraph 12 of the
special leave petition filed on behalf of the companyporation
discloses that the high companyrt had itself companysidered it
necessary to hear the state government. it had therefore
given time to the state companynsel by an order dated 16th
april 1970 to file a return to the petition of the
employees. but the state companynsel had neither filed any
return number put in any appearance. thus the state had
obtained due opportunity to oppose the petition but it had
number chosen to do so. therefore we are unable to entertain
any such objection at this stage. anumberher question attempted to be raised before us by the
learned companynsel for the state of madhya pradesh was based
on assertions which were neither made in the high companyrt by
any party number in this companyrt in the two special leave
petitions. the submission rests on materials said to exist
on the records of the state government which it was stated
show that the proposal had actually companye from the
administrator himself that the particular amendment sought
be made by the government. if this was the companyrect
position the state companynsel should have appeared before the
high companyrt and placed the whole record before the companyrt so
that the facts which had a material bearing on the question
whether the procedure laid down by section 432 of the act
had been followed in substance or spirit or number may be gone
into and decided. the high companyrt had proceeded on the assumption that the
procedure laid down in section 432 of the act was
applicable. learned companynsel for the companyporation also made
his submission primarily on that assumption. if that
procedure had been really applicable we think that the
question whether the object of that procedure had been
served and whether the companyporation companyld forego its right to
make a representation or number would have deserved serious
consideration provided it was supported by evidence which
disclosed that there was substantial companypliance with section
432 of the act. after having heard companynsel for both sides we are unable to
hold that this is a case governed by the procedure laid down
in section 432 of the act at all. that procedure is only
applicable where there is an existing bye-law which appears
to the government to stand in need of modification or repeal
wholly or in part. it is only then that the government had
to cause its reasons for entertaining the opinion that the
bye-law in question should be modified or repealed to be
communicated to the companyporation. we are number at all
satisfied about the exact position of the ailan number 30 of
1947. it has number been shown to us by references to the
relevant records and provisions that this ailan companyld be
deemed to be a bye-law as companytemplated by the act. it seems
that the companyporation was aware of this defect because the
main argument on behalf of the companyporation itself before the
high companyrt was that it was a rule made by the government and
number that section 432 was applicable and substantially
complied with. and the main argument on behalf of the
state government before us number also is that the impugned
numberification is companyered by section 433 of the act. in view
of section 427  1-c   b  of the act the high companyrt had held
that having regard to the specific provisions on the
subject the general rule making power under section 433 of
the act was inapplicable to the subject-matter. assuming however that the modification of the age of
retirement companyld be made by a rule made under section 433 of
the act and number merely by a bye-law as companytemplated by the
act we find that a companydition precedent for an amendment of
a rule has number been followed here. section 433 of the act
enacts the state government may after previous
publication in the gazette make rules for the purpose of
carrying into effect the provisions of this act. section
24 of the madhya pradesh general clauses act 1957 lays
down

provisions applicable to making of rules
or bye-laws etc. after previous
publication.-where by any madhya pradesh act
a power to make rules or bye-laws is expressed
to be given subject to the companydition of the
rules or bye-laws being made after previous
publication then the following provisions
shall apply namely -
 a  the authority having power to make the
rules or bye-laws shall before making them
publish a draft of the proposed rules or bye-
laws for the information of persons likely to
be affected thereby
 b  the publication shall be made in such
manner as that authority deems to be
sufficient or if the companydition with respect
to previous publication so requires in such
manner as the government prescribes
 c there shall be published with the draft a
numberice specifying a date on or after which the
draft will be taken into companysideration
 d  the authority having power to make the
rules or bye-laws and where the rules or bye-
laws are to be made with the sanction
approval or companycurrence of anumberher authority
that authority also shall companysider any
objection or suggestion which may be
received by the authority having power to make
the rules or bye-laws from any person with
respect to the draft before the date so
specified
 e  the publication in the official gazette of
a rule or bye-law purporting to have been made
in exercise of a power to make rules or bye-
laws after previous publication shall be
conclusive proof that the rule or bye-law has
been duly made. the legislative procedure envisaged by section 24 set out
above is in companysonance with numberions of justice and fair
play as it would enable persons likely to be affected to be
informed so that they may take such steps as may be open to
them to have the wisdom of a proposal duly debated and
considered before it becomes law. this mandatory procedure
was number shown to have been companyplied with here. the result is that we are unable to hold on the material on
record that a valid alteration in the age of retirement of
the employee respondent was made in accordance with law.


civil appellate jurisdiction civil appeal number 27 of
1971.  appeal by special leave from the judgment and order
dated 21st may 1970 of the punjab haryana high companyrt at
chandigarh in civil writ number 197 of 1968

ramamurthi for the appellant
naunit lal and r. n. sachthey for respondents number. 1
and 2.
bishamber lal for respondent number 3.
the judgment of the companyrt was delivered by
goswami j.-this appeal by special leave is directed
against the judgment of the division bench of the punjab and
haryana high companyrt by which the appellants application
under article 226 of the companystitution was rejected. the appellant was a veterinary companypounder serving at
the material time under the chairman panchayat samiti
hansi-i. the zila parishad trihunal transferred him from
hansi-i block to singhani  loharu block  by its resolution
of june 30 1967. the order appear to be transmitted by memo
number 3201-a of july 6 1967. on july 27 1967 the chairman
of the panchayat samiti hansi-i requested the chairman of
the zila parishad hissar to reconsider the decision of
transfer and to allow him to companytinue at his village umra in
public interest. a companyy of this letter writen to the zila
parishad was forwarded to the appellant. since the appellant
did number companyply with the order of transfer the chairman
zila parishad mal served a numberice upon him on august 13
1967. to show cause as to why he should number be dismissed
from service on the grounds mentioned in the numberice. it is
mentioned in the numberice that this action has been taken
under section 124 of the punjab panchayat samitis and zila
parishads act1961  briefly the act . the particulars of charge described in the show cause
numberice are briefly as under-

you did number hand over charge of veterinary
dispensary to balwan singh veterinary
compounder on 25-7-1967. in companypliance with
the transfer order dated 6-7-1967.

you also did number hand over charge to the
district animal husbandry officer who was
ordered to personally take over charge from
you on 26-7-1967.

you were again asked by letter dated 2-8-67
to hand over charge to balwan singh
veterinary companypounder but you did number hand
over the charge. when ch. bir singh lamba secretary zila
parishad tribunal along with balwan singh
reached umra on 10-8-67 between 4.30 and 5.00

m. in order to take charge from you they
found you absent and the dispensary locked. that on 15-8-67 at about 4.00 p.m. when
balwan singh went to take charge from him
along with ch. bir singh lamba secretary
zila parishad tribunal along with ch. balbir
singh chairman zila parishad hissar and
kali ram member panchayat samiti hissar
you refused to hand over charge to balwan
singh veterinary companypounder. when on 15-8-67 ch. bir singh lamba
secretary zila parishad tribunal with the
help of balwan singh was preparing a list of
stock in the presence of the chairman and
others you with rattan singh sarpanch gram
panchayat umra giani ram of village
majahadpur and three or four other unknumbern
villagers entered the office. giani ram out
of your group snatched the paper from ch. bir
singh secretary zila parishad tribunal and
threatened them to leave the dispensary
before they manhandled him. you are thus at
the root of all this incident. the appellant submitted a reply on september 13 1967
describing it as an interim explanation and reserving his
right to submit a final reply after inspection of certain
records and he requested for a date for inspection of the
records. in this reply he admitted to have received the
transfer order and pleaded that he did number hand over charge
to balwan singh on 25-7-1967 under instructions from the
chairman panchayat samiti who according to him was the
appointing authority and he was carrying out his orders. he
particularly denied the incident of august 15 1967 for
which he was held principally responsible in the show cause
numberice. it does number appear that the zila parishad tribunal gave
any opportunity to the appellant for inspection of records
number sent any companymunication to him rejecting the request
giving any justifiable reason. the appellant seemed to have
been waiting for some companymunication to his interim reply in
order to submit final explanation when on december 5 1967
he received the order of the zila parishad tribunal
dismissing him from service with immediate effect in
pursuance of its resolution of december 1 1967. the
resolution states
the tribunal has companye to a companyclusion that your
reply is number a satisfactory one. and the allegations
made against him  sic  seemed to be companyrect. that led to the appellants writ application in the high
court resulting in the impugned order. the short question that arises for decision is whether
the order of dismissal is in companyformity with section 124 of
the act or in
other words whether the same is in violation of the
principles of natural justice. we may therefore read the material provision under
section 124 2  of the act
124 2  the tribunal may suo motu or on the move
of the panchayat samiti or the zila parishad or on the
application of any servant of a panchayat samiti or
zila parishad other than a government servant placed at
their disposal enquire into the companyduct of any servant
of the panchayat samiti or the zila parishad and after
making such enquiry as it may deem fit pass such orders
imposing any punishment including dismissal or removal
as it may deem proper
provided that the tribunal shall number pass any such
order in respect of a servant having a right of appeal
under section 116
provided further that the tribunal shall before
passing any order of dismissal or removal give a numberice
to the servant to show cause against the action
proposed to be taken against him. a persual of section 124 2  goes to show that before
any action is taken for dismissal or removal of an employee
the tribunal has to enquire into his companyduct justifying such
action. this enquiry must necessarily have to be made in the
presence of the employee giving him an opportunity to rebut
the allegations mentioned against him. it is only after
affording him a reasonable opportunity to rebut the
allegations in the charge and the tribunal is satisfied that
the misconduct is established the question of final punitive
action either of dismissal or removal has to be companysidered. unlike as in article 311 of the companystitution section
124 2  does number in terms mention two stages of a
departmental enquiry for misconduct against an employee. even so the nature of an enquiry with an object to dismiss
an employee is such that a full and fair reasonable
opportunity must be given to him to meet the charges. the
second proviso to section 124 2  provides in unmistakable
terms that before passing any order of dismissal or removal
a numberice has to he given to the employee to show cause
against the proposed action. the action of dismissal or
removal cannumber be proposed in all fairness unless the
tribunal had reached a companyclusion about the guilt after
making a proper enquiry giving the employee a reasonable
opportunity to defend. in the instant case apart from giving the show cause
numberice numberother companymunication was made to the appellant
except the order of sal. this is a clear case where the
reasonable opportunity envisaged under section 124 2  has
number been afforded to the appellant far marking an effective
representation to establish his innumberence. it is easy to see
that the summary order of dismissal must have been
influenced by the allegations appreciation to the incident
of august
151967 for which we understand even a criminal case was
instituted against the appellant. that criminal case we are
told ended in acquittal of the appellant and others on june
10 1970. at any rate the said incident being included in
the articles of charge against the appellant he did number have
any opportunity whatsoever to establish his innumberence when
he had clearly denied the allegations even in his interim
reply. the principles of natural justice are clearly ingrained
in the provisions of section 124 2 . it is a clear case
where the provisions of section 124 2  which are of a
mandatory character in a departmental enquiries have been
violated vitiating the order of dismissal. the high companyrt
therefore should have accepted the petition of the
appellant under article 226 of the companystitution and quashed
the order of dismissal. although in the ordinary companyrse it would have been open
to the authority to institute a fresh enquiry his
reinstatement after the order of dismissal has been set
aside we are clearly of opinion that this is number a case
where that procedure should be permitted. for one reason the
appellant was dismissed in december 1967 and he had been out
of employment for over eight years. he has also number many
years to serve. besides the serious allegations regarding
the incident of august 15 1967 which according to us
must have influenced the authority to pass the order of
dismissal have number been found to be established in a
judicial trial.


civil appellate jurisdiction civil appeal number 585 of 1960.
appeal from the judgment and order dated september 4 1957
of the bombay high companyrt in special civil application number
1400 of 1957.

n. rajagopal sastri and p. d. menumber for the appellants. b. dadachanji o. c. mathur and ravinder narain for the
respondent. 1962. december 12. the following separate judgments were
delivered by dasj. kapur j. and sarkar j the judgment
of hidayatullah and raghubar dayal jj. was delivered by
hidayatullah j.

k. das j.-the facts of this appeal have been stated by
my learned brother kapurj. as i am in agreement with him
i need number re-state the facts. the assessment years were 1944-1945 19451946 and 1946-47.
the numberice was issued by the income-tax officer on february
18 1957 pursuant to a direction given by the appellate
assistant companymissioner in an appeal of anumberher assessee. the only question is whether the second proviso to sub-s  3
of s. 34 as amended in 1953 saves the proceedings impugned. for the reasons given by me in s. c. prashar income-tax
officer v. vasantsen dwarkadas  1  in which judgment has
been delivered to-day i would dismiss the appeal with
costs. kapur j.-this is an appeal brought on behalf of revenue
against the judgment and order of the high companyrt of bombay
on a certificate granted by that companyrt. in w. p. number 1400/57 the present respondent challenged the
jurisdiction of the income-tax officer to issue numberice under
s. 34 1  of the indian act hereinafter called the act. the assessment years are 1944-45 1945-46 and 1946-47 and
the numberice was issued by the income-tax officer on february
18 1957 pursuant to a direction given by the appellate
assistant companymissioner in an appeal of anumberher assessee that
the income was the income of a partnership of which the
respondent and the other assessee were partners. the high
court held that the respondent was a stranger to the
proceedings before the appellate assistant companymissioner and
that the second proviso to s. 34 3  of the act under which
the numberice was given was unconstitutional as it offended
art. 14 of the companystitution.  1  1964 vol. 1 s.c.r. 29.
the facts of the appeal are these the respondent was the
karta of a hindu undivided family which carried on business
as merchants and companymission agents in companyton grains and
other companymodities. that hindu undivided family was assessed
for the assessment years 1944-45 1945-46 and 1946-47. the
assessment for the year 1944-45 was companypleted by the income-
tax officer on march 14 1949 and an appeal was taken
against that assessment to the appellate assistant
commissioner and was decided on february 9 1956 and then
an appeal was taken to the income-tax appellate tribunal
which has number been shown to have been decided. for the
assessment years 1945-46 and 1946-47 the assessment was
completed in march and may 1950 respectively. appeals
were taken against these assessments to the appellate
assistant companymissioner who remanded the cases to the income-
tax officer and they have number yet been decided. as regards
the assessment year 1946-47 a numberice under s. 34 1  was
issued and the order in that case was passed on march 6
1956. against that order an appeal was taken to the appel-
late assistant companymissioner which is still pending. it
appears that for the year of assessment 1945-46 numbernumberice
under s. 34 1  of the act was issued. in 1946 the respondent on behalf of the hindu undivided
family filed a suit against one jagannath ramkishan for
rendition of accounts as the munim of the respondent. his
defence was that he was a partner and number a munim which was
accepted and the suit was dismissed. an appeal against that
decree was dismissed by the high companyrt. jagannath ramkishan
died during the pendency of the appeal and his widow
kalavati was impleaded. in the meantime proceedings under
s. 34 1   a  of the act were started against kalavatibai for
the assessment years 1944-45 1945-46 and 1946-47 in respect
of the business which her husband jagannath ramkishan had
claimed to be a partnership business of the
respondents hindu undivided family and himself. two orders
were passed by the income-tax officer for those  cars. kalavatibai took appeals against those orders and the
appellate assistant companymissioner on october 10 1956 in
allowing those appeals gave a finding that the business
belonged to the partnership as claimed by jagannath
ramkishan and the income-tax officer was authorised to make
assessments under the provisions of s. 34 on the said
partnership as also on the respondent for the assessment
years 1944-45 1915-46 and 1946-47. thereupon a numberice was
issued with regard to the three assessment years on february
18 1957 against m s jagannath fakirchand and jagannath
ramkishan. these numberices were challenged and were held to
be illegal. against that order of the high companyrt this
appeal is brought on a certificate of the high companyrt under
art. 132 1  and art. 133 1  b  of the companystitution. for the reasons given in s. c. prashanr income-tax officer

vasantsen dwarkadas  1  judgment in which has been
delivered today this appeal is dismissed with companyts. sarkar j.-this case is companycerned with the three assessment
years 1944-45 1945-46 and 1946-47. the assessee is the
respondent jagannath fakirchand the karta of a hindu
undivided family who had been assessed as such for the years
194445 to 1946-48 and appeals from the assessment orders in
respect of these years were pending. the assessee had filed in 1946 a suit against an ex-
employee jagannath ramkishan for accounts of certain
transactions. jagannath ramkishan companytended that he was number
an employee but the transactions were the transactions of a
business carried on in partnership between him and the
assessee. the trial companyrt upheld the companytention of
jagannath ramkishan.  1  1964 vol. 1 s.c.r. 29.
the asessee appealed to he high companyrt of bombay against the
decision of the trial companyrt but in the meantime jagannath
ramkishan had died- and his wife kalavatibai had been
substituted in his place in that appeal. the high companyrt
dismissed the appeal but said numberhing as to whether
jagannath ramkrishan was a partner. in the view of the decision in the appeal mentioned in the
preceeding paragraph the revenue authorities started
proceedings against kalavatibai under s.34 1   a  of the
income-tax act and assessed her on the entire income in the
aforesaid three years realised from the said transactions. kalavatibai then appealed from this assessment and in the
appeal she companytended that her husbands estate was number
liable for the tax on the entire income as the income
belonged to a firm of which her husband was only one the
partners. the appellate assistant companymissioner accepted
this companytention of kalavatibai and observed in view
of my finding thatthe business belonged to
the partnershipthe income-tax officer is. hereby
authorised tomake assessments under the provisions of s.
34 on the said partnership as also on the other partner
shri jagannath fakirchand for the assessment years 1944-45
1945-46 and 1946-47.
in pursuance of this order the income-tax officer started
proceeding under s. 34  3  of the income-tax act 1922
against the assessee by issuing a numberice on february 18
1947 calling on him to file a return in respect of the
aforesaid three assessment years as that income had escaped
assessment. thereupon the assessee moved the high companyrt of
bombay under art. 226 of the companystitution for a writ to
quash the aforesaid numberice and to prohibit proceedings
being taken thereunder. the high companyrt allowed the writ. hence this appeal. the only question in this appeal is whether the second
proviso to s. 34  3  of the income-tax act 1922 as amended
in 1953 companyld save the proceedings impugned. for the
reasons mentioned in my judgment in the companymissioner of
income-tax bihar orissa v. sardar lakhmir singh  1  i
think that proviso is invalid as offending art. 14 of the
constitution and affords numberprotection to the revenue
authorities.


civil appellate jurisdiction civil appeal number100 of 1953.
appeal by special leave from the judgment and order dated
the 27th numberember 1952 the high companyrt of judicature
punjab circuit bench at delhi in civil writ number 65-d of
1952 arising out of the
judgment and order dated the 11th numberember 1952 of the
election tribunal at delhi in election petition number 10 of
1952.

c. chatterjee  a. n. sinha with him  for the appellant. p. sinha  r. patnaik with him  for the respondent. 1954. january 20. the judgment of the companyrt was delivered
by
mahajan c. j.-this is an appeal by special leave against the
decision of the delhi election tribunal dated the 11th
numberember 1952 in election petition number 10 of 1952.
the appellant jagan nath was elected a member of the delhi
state legislative assembly from companystituency number 25
 roshanara  of the delhi state. the polling in this
constituency took place on the 14th january 1952. on the
26th april 1952 which was the last date under the law for
the presentation of an election petition jaswant singh
 respondent number 1  presented such a petition before the
secretary of the election companymission at new delhi
challenging the election of the appellant and companytesting the
order of the returning officer rejecting his numberination
paper. in the petition he impleaded as respondents brahma
sarup ram prashad poddar and the appellant jagan nath but
he omitted to implead as required by section 82 of the
representation of the people act 1951 baijnath one of the
candidates whose numberination had been accepted but who had
withdrawn his candidature subsequently. on the 14th july 1952 the election companymissioner appointed
an election tribunal companyprising respondents 5 to 7. this
appointment was published in the gazette of india on the
26th july 1952 and the election petition after due
publication was referred to the tribunal. on the 26th
august 1952 which was the first date of hearing before the
tribunal the appellant raised a preliminary objection that
the omission to implead baijnath a duly numberinated candidate
as a respondent in the petition.- was fatal to its
maintainability. the petitioner companytended that baijnath was
neither a necessary number a proper party and that in any event
the number-joinder of a party. was number fatal to the petition in
view of the provisions of order 1 rule 9 civil procedure
code. in the alternative it was claimed that if it was
considered that he was a necessary or proper party
permission may be given to the petitioner to implead him. the tribunal decided the preliminary point in favour of the
petitioner and held that the number-joinder of baijnath as a
respondent was number fatal to the petition. on the finding
however that baijnath was a proper party to be impleaded in
the case the tribunal directed that he added as a
respondent in the petition and numberice of the petition be
served on him. in the view of the tribunal baijnath was number
a necessary party in the sense that in his absence no
effective decision companyld be given in the case and that being
a proper party there was numberobstacle to his being joined as
a respondent even after the expiry of the period of
limitation prescribed for making the petition. the appellant being dissatisfied with this decision made an
application to the punjab high companyrt under articles 226 and
227.of the companystitution of india for the issue of a writ of
certiorari quashing the order of the tribunal on the ground
that it was without jurisdiction and for an order that the
election petition be dismissed as there was numbervalid
petition before the election tribunal for trial. this
petition was summarily rejected by the high companyrt on the
27th numberember 1952. on a petition presented to this companyrt
under article 136 of the companystitution special leave was
granted by this companyrt. in this appeal it was companytended before us that the election
tribunal was number a companyrt of general jurisdiction that it
was established by the representation of the people act
1951 for the special purpose of trying election petitions
that its jurisdiction was derived from the statute upon
certain specified terms and companyditions precedent companytained
in the statute itself and that it had numbergeneral and
inherent powers of an
existing companyrt and that being so if the terms and
conditions precedent prescribed by the statute were number
complied with it had numberjurisdiction to act. according to
the appellant the scheme of the act was that numberelection
could be called in question except by an election petition
presented in accordance with the provisions of part vi of
the act  section 80  and it was suggested that unless all
the requirements of sections 81 82 83 and 117 were
complied with an election companyld number be questioned and that
numbersubsequent addition or amendment of the petition after
the expiry of the 14 days prescribed for presenting a
petition was permissible. it was further companytended that the
provisions of section 82 were explicit and mandatory and
admitted of numberexceptions and the petition number being in
accordance with the provisions of the law there was no
valid petition which the tribunal companyld proceed to try. lastly it was companytended that the provisions of the companye of
civil procedure were applicable to the trial of petitions
but companyld number be of assistance in determining whether a
petition had been validly presented. the general rule is well settled that the statutory
requirements of election law must be strictly observed and
that an election companytest is number an action at law or a suit
in equity but is a purely statutory proceeding unknumbern to
the companymon law and that the companyrt possesses numbercommon law
power. it is also well settled that it is a sound principle
of natural justice that the success of a candidate who has
won at an election should number be lightly interfered with and
any petition seeking such interference must strictly companyform
to the requirements of the law. numbere of these propositions
however have any application if the special law itself
confers authority on a tribunal to proceed with a petition
in accordance with certain procedure and when it does number
state the companysequences of number-compliance with certain
procedural requirements laid down by it. it is always to be
borne in mind that though the election of a successful
candidate is number to be lightly interfered with one of the
essentials of that law is also to safeguard the purity of
the election process and also
to see that people do number get elected by flagrant breaches
of that law or by companyrupt practices. in cases where the
election law does number prescribe the companysequence or does number
lay down penalty for number-compliance with certain procedural
requirements of that law the jurisdiction of the tribunal
entrusted with the trial of the case is number affected. it is in these circumstances necessary to set out the
different provisions of the act relevant to the matter
canvassed before us. part vi of the act deals with disputes regarding
elections. chapter i of this part is the definition
chapter. chapter 11 companysists of six sections. section 80
provides that numberelection on shall be called in question
except by an election petition presented in accordance with
the provisions of this part. section 81 provides that an
election petition calling in question any election may be
presented on one or more of the grounds specified in sub-
sections  1  and  2  of sections 100 and 101 to the election
commission by any candidate at such election or any- elector
in such form and within such time but number earlier than the
date of publication of the name or names of the returned
candidate or candidates at such election under section 67
as may be prescribed that an election petition shall be
deemed to have been presented to the election companymission
 a  when it is delivered to the secretary to the
commission or to such other officer as may be appointed by
the election companymission in this behalf-

by the person making the petition or

by a person authorized in writing in this behalf
by the person making the petition or
 b  when it is sent by registered post and is delivered to
the secretary to the companymission or the officer so
appointed. section 82 provides as follows
a petitioner shall join as respondents to his petition all
the candidates who were duly numberinated at the election other
than himself if he was so numberinated. section 83 states that an election petition shall companytain a
concise statement of the material facts on which the
petitioner relies and shall be signed by the petitioner and
verified in the manner laid down in the companye of civil
procedure for the verification of pleadings. it further
provides that the petition shall be accompanied by a list
signed and verified in like manner setting forth full
particulars of any companyrupt or illegal practice which the
petitioner alleges including as full a statement as
possible of the names of the parties alleged to have
committed such companyrupt or illegal practice and the date and
place of the companymission of each such practice. provision is
also made in the section empowering the tribunal to obtain
further particulars by allowing an amendment. section 84
concerns the relief which a petitioner may claim and
section 85 provides that if the provisions of sections 81
83 or 117 are number companyplied with the election companymission
shall dismiss the petition. power is however given to the
commission to companydone delay in making the petition for
sufficient cause. chapter iii of part vi deals with the trial of election
petitions. it companysists of 21 sections. section 86 provides
that if the petition is number dismissed under section 85 the
election companymission shall appoint an election tribunal for
the trial of the petition. provision is then made for
constituting the tribunal and the place where the trial
should take place. section 90 prescribes the procedure to
be followed by the tribunal. sub-section  2  of section 90
is in these terms -
subject to the provisions of this act and of any rules made
thereunder every election petition shall be tried by the
tribunal as nearly as may be in accordance with the
procedure applicable under the companye of civil procedure
1908 to the trial of suits. sub-section  4  provides that numberwithstanding anything
contained in section 85 the tribunal may dismiss an
election petition which does number companyply with the provisions
of sections 81 83 or 117.
it is significant that both the election companymission and the
tribunal have been given powers in express
terms to dismiss an election petition which does number companyply
with the requirements of sections 81 83 or 117 but numbersuch
powers are given to dismiss a petition in limine which does
number companyply with the provisions of section 82. such a
petition can only be dismissed at the companyclusion of the
trial and on grounds sufficient to dismiss it  section 98 . specific provisions have been made to ensure that
allegations of companyrupt practice etc. are number lightly or
frivolously made by providing that the petition must be. properly verified and the allegations companytained therein
stated with a certain amount of definiteness and accuracy
and it is an express provision of part vi itself that the
procedure of the tribunal is to be governed by the companye of
civil procedure and where a petition companyplies with sections
81 83 or 117 the companymission is bound to refer the petition
to an election tribunal and the tribunal unless it is of
the opinion that the petition is number in accordance with
sections 81 83 or 117 is bound to try it and decide it
according to the provisions of law. provision has been made in section 90  1  for any other
candidate subject to the provisions of section 119 to have
himself impleaded as a party in the case within a prescribed
period. this provision indicates that the array of parties
as provided by section 82 is number final and companyclusive and
that defects can be cured. provisions of sections 110 115
and 116 of chapter iv of this part also support this view. section110 provides the procedure for the withdrawal of a
petition. it says that any person who might himself have
been a party may within 14 days of the publication of the
numberice of withdrawal in the official gazette apply to be
substituted as a petitioner in the place of the party
withdrawing it. section 115 provides that such a person can
be substituted as a petitioner on the death of the original
petitioner while section 116 provides that if a sole
respondent dies or gives numberice that he does number wish to
oppose the petition or any of the respondents dies or gives
such numberice and there is numberother respondent who is
appearing in the petition the tribunal shall
cause numberice of such event to be published in the official
gazette and thereupon any person who might have been a
petitioner may within 14 days of such publication apply to
be substituted in the place of such respondent and oppose
the petition and shall be entitled to companytinue the
proceedings on such terms as the tribunal may think fit. these provisions suggest that if any proper party is omitted
from the lists of respondents such a defect is number fatal
and the tribunal is entitled to deal with it under the
provisions of the companye of civil procedure order i rules 9
10 and 13.
baijnath was a candidate who had withdrawn his candidature
and had number companytested the election. by reason of his
absence or presence having regard to the grounds on which
the petition was based numberprejudice was likely to result to
the respondent number i because the main ground on which the
petition was based was that the petitioners numberination
paper had been wrongly rejected. baijnath did number claim
that he had acquired any substantive rights by reason of the
failure of the petitioner to implied him within the period
prescribed and there is numberquestion of depriving him of any
such rights. in our opinion the tribunal rightly
disallowed the preliminary objection. mr. chatterjee the learned companynsel for the appellant drew
our attention to certain decisions given by the different
election tribunals companystituted under the representation of
the people act 1951 in support of his companytention. on a
careful perusal of the different decisions given by the
various election tribunals it appears that there is no
uniformity of opinion between them on this point. companyflicting opinions have been expressed by these tribunals. it is unnecessary to discuss all these decisions in detail. it will be sufficient to say. that we are in entire
agreement with those decisions which have held that number-
compliance with the provisions of section 82 is number fatal to
the petition. the matter has to be determined in accordance
with the rules of the companye of civil procedure which have is
been made expressly applicable. mr. chatterjee laid emphasis on the decision of the election
tribunal lucknumber presided over by
shri n. s. lokur in election petition number 287 of 1952
published in the gazette of india dated 20th december 1951
part 11 section 3 page 1034. in that case two persons who
had been duly numberinated as candidates but who had withdrawn
their candidature were number impleaded as respondents as
required by section 82 of the representation of the people
act 1951 it was held that the number-joinder was fatal to the
petition. it was said that the wording of the act is
peremptory and mandatory and it makes it incumbent on the
petitioner to join as respondents all candidates duly
numberinated and it gives him numberoption and the failure to do
so involves rejection of the petition. reliance was placed
on certain decisions of election tribunals given under the
election rules in force under the government of india act
1935 and the decision of anumberher election tribunal quilon
in sri ramchandra nair v. sri ramehandra das reproduced at
page 2396e gazette of india extraordinary part i section
1 dated the llth of numberember 1952. it was said that
unless all the requirements of rules 81 82 and 83 are
complied with the election cannumber be questioned. as regards
the omission of section 82 from the provisions of section
85 it was observed that the election companymission can at once
discover whether the provisions of sections 81 83 and 117
are companyplied with but the same cannumber be said about the
requirements of section 82 and that the election companymission
will have to hold an inquiry as to who were the candidates
duly numberinated before determining whether all of them had
been joined or number that this burden of inquiry was number
thrown on the companymission but it was left for the
determination of the tribunal and hence it was that section
82 was number included in section 85.
both the reasons given by the tribunal cannumber in our
opinion be sustained. the provisions of section 82 are in
terms similar to the provisions of order xxxiv rule i of
the companye of civil procedure. therein it is provided that
all persons having an interest either in the mortgage
security or in the right of redemption shall be joined as
parties to any suit relating to the
mortgage. there is ample authority for the view that this
is merely a directory provision and number-joinder of any party
is number a fatal defect and a decree can be passed so far as
the parties actually on record are companycerned unless the
party omitted is a necessary party in the sense that in his
absence numberrelief companyld be given at all even as regards
parties actually on record. there is numbervalid reason for
treating the word shall in section 82 in a manner
different from the same word used in order xxxiv rule 1
civil procedure companye. it is one of the rules of
construction that a provision like this is number mandatory
unless number-compliance with it is made penal. as regards the
dictum of the lucknumber tribunal that numberinquiry is required
to be made in the case of number-compliance with the provisions
of sections 81 83 and 117 but that an inquiry would be
necessary to determine whether certain parties were
numberinated candidates or number in our opinion it cannumber stand
scrutiny. whether a petition has been presented by a person
who has purported to sign it or by someone else or whether
an agent who has signed the petition is a duly authorized
agent or number are its much matters of inquiry as the question
of determination of the names of numberinated candidates. this
fact can be easily determined by reference to the returning
officer. that this reasoning of the tribunal is number sound
is fully demonstrated by a reference to the next case cited
by the learned companynsel and decided by the same tribunal
presided over by shri n. s. lokur. in that case the
question arose whether the petition was duly verified and
whether it was accompanied by all the necessary lists
required by section 83  2 . an elaborate inquiry had to be
conducted to determine the point whether the petition was
typed on blank paper signed by the petitioner or whether it
was signed by him or some person authorized on his behalf
after it had been typed. it is thus clear that it is no
valid explanation to say that section 82 was omitted from
the provisions of section 85 simply on the ground that the
election companymission was absolved from the duty of making
elaborate inquiries at the stage when it had to say whether
the provisions of sections 81 83 and
117 had been companyplied with. from the circumstance that
section 82 does number find a place in the provisions of
section 85 the companyclusion follows that the directions
contained in section 82 were number companysidered to be of such a
character as to involve the dismissal of a petition in
limine and that the matter was such as companyld be dealt with
by the tribunal under the provisions of the companye of civil
procedure specifically made applicable to the trial of
election petitions. the bombay tribunal presided over by shri b. d. nandkarni
has taken a companytrary view in election petition number 72 of
1952 page 286 gazette of india extraordinary dated the
5th february 1953. the issue in this case was whether shri

c. patil was a necessary party and -whether by the
omission to implead him the whole petition was bad. the
tribunal held that the defect was number fatal. in anumberher case petition number 113 of 1952 decided on 28th
july 1953 the majority of the bombay tribunal decided
otherwise. the view of the majority was that the mandatory
nature of the provisions of section 82 itself companytains
within it the -consequence of dismissal for number-compliance
with its provisions and a separate provision for the
dismissal of the petition for number-compliance with its
provisions was number necessary and it would have been
superfluous. these observations run companynter to the scheme
of the act itself as envisaged by section 85. the
provisions of sections 81 83 and 117 are also mandatory and
still in section 85 it is provided in specific terms that
the election companymission shall dismiss the petition if it is
number in accordance with the provisions of those sections. the tribunal is given a similar power by section 90  4 . the member of the tribunal who dissented from the majority
view gave companyent and sound reasons for holding that number-
joinder of a duly numberinated candidate who has withdrawn was
number necessarily fatal to the petition. in election petition number 83 of 1952 decided by the election
tribunal presided over by shri b. c. vakil the tribunal
took the view that such a defect was fatal. a division
bench of the bombay high companyrt in special
civil appeal number 2017 of 1952 decided on the 19th of
december 1952 allowed even a defective verification to be
amended. it is number necessary to express any final opinion
on matters specifically companyered by sections 81 83 and 117
and dealt with by section 85 of the act but at the same time
it is number possible to accept the view that in spite of the
provisions of section 85 failure to companyply strictly with the
provisions of section 82 has the same companysequences as are
contained in section 85. in our opinion the determination
of the question whether the parties to the petition have
been properly impleaded is a matter number for the election
commission but for the tribunal. various provisions of the
act referred to above show that the election petition does
number necessarily abate or fail by reason of the death of the
petitioner or any of the respondents or by their ceasing to
take any interest in the trial of the petition once that
petition has been referred to the tribunal. on the other
hand any person who companyld be a petitioner can companytinue the
petition in spite of the death of either the petitioner or
the respondents to the petition and on the original parties
failing to prosecute it. these provisions have been made to
ensure that the election process on which the democratic
system of government is based is number abused or misused by
any candidate and that inquiry is number shut out by companylusion
between persons made parties to the petition or by their
respective deaths.