civil appellate jurisdiction civil appeals number. 421 to 423
of 1957.
appeals from the judgment and order dated february 18 1955
of the allahabad high companyrt  lucknumber bench  at lucknumber in

a.f.o. number. 11 to 13 of 1953.

b. dadachanji for the appellant. b. agarwala and c. p. lal for the respondent. 1961. february 6. the judgment of the companyrt was delivered
by
shah j.-these three appeals were filed by the appellants
m s. jethanand sons with certificate of fitness granted
under art. 133 1   c  of the companystitution by the high companyrt
of judicature at allahabad. the appellants entered into three separate companytracts with
the government of the united provinces  number called the state
of uttar pradesh  on march 20 1947 may 27 1947 and june
28 1947 for the supply of stone ballast at shankar garh
district allahabad. the companytracts which were in identical
terms companytained the following arbitration clause
all disputes between the parties hereto
arising out of this companytract whether during
its companytinuance or after its rescission or in
respect of the companystruction or meaning of any
clause thereof or of the tender
specifications and companyditions or any of them
or any part thereof respectively or anything
arising out of or incident thereto for the
decision of which numberexpress provision has
hereinbefore been made shall be referred to
the superintending engineer of the circle
concerned and his decision shall in all cases
and at all times be final binding and company-
clusive between the parties. pursuant to the companytracts the appellants supplied stone
ballast. thereafter purporting to act under cl.  16  of
the agreements the executive engineer provincial division
referred certain disputes between the appellants and the
state of uttar pradesh alleged to arise out of the
performance of the companytracts to arbitration of the
superintending engineer of the circle companycerned. the
superintending engineer required the appellants to appear
before him at the time fixed in the numberices. the appellants
by their letter dated may 31 1951 declined to submit to
the jurisdiction of the superintending engineer and
informed him that if he hears and determines the cases ex
parte the decisions will number be binding on them. on
february 7 1953 the superintending engineer made and
published three awards in respect of the disputes arising
under the three companytracts and filed the same in the companyrt of
the civil judge lucknumber. the appellants applied for
setting aside the awards alleging that the companytracts were
fully performed and that the dispute alleged by the state of
uttar pradesh to have arisen out of the companytracts companyld number
arise after the companytracts were fully performed and that the
state companyld number refer those alleged disputes to arbitration. they also companytended that the awards were number valid in law
because on the arbitration agreements action was number taken
under s. 20 of the arbitration act. the civil judge
lucknumber held that the disputes between the parties were
properly referred to the superintending engineer by the
state of uttar
pradesh and that the awards were validly made. against the
orders passed by the civil judge lucknumber three appeals
were preferred by the appellants to the high companyrt of
judicature at allahabad. the high companyrt set aside the orders passed by the civil
judge and remanded the cases to the trial judge with a
direction that he do allow the appellants and if need be
the respondent to amend their pleadings and frame all
issues that arise out of the pleadings and allow the parties
an opportunity to place such evidence as they desire and
decide the case on such evidence. in the view of the high
court numberproper numberice of the filing of the awards was
served upon the appellants and that they were seriously
handicapped in their reply by the companyrse which had been
adopted both by the companyrt and the arbitrator in the companyduct
of the proceedings in companyrt. on the applications filed by
the appellants the high companyrt granted leave to appeal to
this companyrt under art. 133 1  c  of the companystitution
certifying that the cases were fit for appeal to this companyrt. companynsel for the respondent has urged that the high companyrt was
incompetent to grant certificate under art. 133 1   c  of
the companystitution. the order passed by the high companyrt was manifestly passed in
exercise of the inherent power to make such orders as may be
necessary for the ends of justice or to prevent abuse of the
process of the companyrt. under art. 133 of the companystitution
an appeal lies to this companyrt from any judgment decree
original order in a civil proceeding of a high companyrt if the
high companyrt certifies that
 a
 b  or
 c the case is a fit one for appeal to the supreme companyrt. in our view the order remanding the cases under s. 151 of
the civil procedure companye is number a judgment decree or final
order within the meaning of art. 133 of the companystitution. by its order the high companyrt did number decide any question
relating to the rights of the parties to the dispute. the
high companyrt merely
remanded the cases for retrial holding that there was no
proper trial of the petitions filed by the appellants for
setting aside the awards. such an order remanding the cases
for retrial is number a final order within the meaning of art. 133 1  c . an order is final if it amounts to a final
decision relating to the rights of the parties in dispute in
the civil proceeding. if after the order the civil
proceeding still remains to be tried and the rights in
dispute between the parties have to be determined the order
is number a final order within the meaning of art. 133. the
high companyrt assumed that a certificate of fitness to appeal
to this companyrt may be issued under s. 109 1  c  of the companye
of civil procedure even if the order is number final and in
support of that view they relied upon the judgment of the
judicial companymittee of the privy companyncil in v. m. abdul
rahman v. d. k. cassim sons  1 . but s. 109 of the companye
is number made expressly subject to ch. iv part v of the
constitution and art. 133  1   c  which occurs in that
chapter authorises the grant of a certificate by the high
court only if the order is a final order. the inconsistency
between s. 109 civil procedure companye and art. 133 of the
constitution has number been removed by the companye of civil
procedure  amendment  act 66 of 1955. but even before the
amending act the power under s. 109 1   c  being expressly
made subject to the companystitution an appeal lay to this
court only against judgments decrees and final orders. again the orders passed by the high companyrt did number raise any
question of great public or private importance. in the view
of the high companyrt the applications forgetting aside the
awards filed by the appellants were number properly tried and
therefore the cases deserved to be remanded to the companyrt of
first instance for trial de numbero. the high companyrt granted
leave to the parties to amend their pleadings they also
directed the civil judge to frame all the issues that
arise and allow the parties an opportunity of adducing such
evidence as they desired. it was an order for trial de numbero
on fresh pleadings and on all issues that may
 1  1933  l.r. 60 i.a. 76.
arise on the pleadings. evidently any decision given by
the high companyrt in the companyrse of the order would number in that
trial de numbero be binding and the cases will have to be tried
afresh by the civil judge. the high companyrt was of the view
that the interpretation of para. 3 of the first schedule of
the indian arbitration act raised a substantial question of
law. but by the direction of the high companyrt this question
was also left open to be tried before the civil judge.


civil appellate jurisdiction civil appeal number 646 of 1972.
appeal under sec. 116-a of the representation of the people
act 1951 from the judgment and order dated february 18
1972 of the madras high companyrt in e.p. number 13 of 1971.

natesan k. jayaram and c. chandrasekhar for the
appellant. m c. chagla and a. subhashini for respondent number 1.

mohan and a. v. rangam for respondents number. 3 4.
the judgment of the companyrt was delivered by-
alagiriswami j.-this appeal. arises out of the election
held to fill tip a seat in the tamil nadu legislative
assembly from the sankarapuram companystituency south arcot
district held in march 1971 in which the first respondent
obtained 28544 votes as against 28472 votes obtained by
the petitioner and was thus declared elected. this appeal
arises out of the dismissal of the election petition filed
by the appellant for setting aside the result of that
election. though many grounds had been urged before the
high companyrt as well as in the petition of appeal in this
court we are number companycerned only with one ground which the
high companyrt refused to go into and was the only one which
shri natesan appearing for the appellant urged before us. before the returning officer anumberher candidate by the name
ramaswami bad presented an objection petition to the
reception of the 1st respondents numberination on the ground
that he had a subsisting companytract with the highways
department of the state of tamil nadu and with the
panchayat union thiagadurgam and was also an agent for
selling tickets in the raffle companyducted by the state of
tamil nadu. the returning officer rejected those
contentions and accepted the numberination papers of the 1st
respondent. subsequently ramaswami withdrew from the
contest and the appellant and the 1st respondent were the
only candidates in the election. in his election petition
the appellant had mentioned that on the date of presenting
his numberination papers the 1st respondent had a subsisting
contract with the state government to widen and blacktop
the ulundurpet-salem road between 74 km and 86 km at an
estimated companyt of rs 2 lakhs that on the eve of
presentation of numberination papers he purported to surrender
the companytract by submitting an application- for cancellation
to the division engineer highways cuddalore whereas the
contract was signed by the superintending engineer madras
circle on behalf of the government of tamil nadu that this
letter of cancellation was number valid and therefore there
was numbervalid cancellation of the companytract. he. therefore
specifically urged that the election of the 1st respondent
was void on that ground. the 1st respondent on the other
hand maintained that the cancellation of the companytract was
valid and there was numbersubsisting companytract on the date of
filing of he numberination and that the companytention of the
petitioner that his election was void on that ground was number
legally sustainable. he also companytended that as the
petitioner had number alleged that by reason of such improper
acceptance the result of the election in so far as it
concerned the 1st respondent had been materially affected
that allegations cannumber be inquired into. he also companytended
that in any case the result of the election had number been
materially affected. the learned judge who dealt with this
matter upheld the companytention of the respondent on the ground
that the allegations in the petition had number stated that the
result had been materially affected
by the alleged improper reception of the  1st respondents
numberination papers. he was of the opinion that this
allegation relating to the improper acceptance of the
numberination of the first respondent cannumber be companysidered a
valid ground which companyld be gone into in the absence of a
specific averment that the election had been materially
affected. to companyplete the narrative it is necessary to
mention that the appellant had filed an application for
summoning the necessary documents in order to sustain his
case. the documents necessary to be referred to so far as
the present appeal is companycerned are only four in number

objections to the numberination of the 1st
respondent  n. nachiappan  by a. ramaswami. documents produced by the 1st respondent

nachiappan  at the time of the scrutiny
of numberination. the signed agreement between the
superintending engineer highways madras
circle and n. nachiappan in respect of the
contract for widening the existing
black top surface to 22 ft. with
ulundurpet-salem  road-kilometre 74/2 to 86/4. proceedings of the divisional engineer
highways and rural work cuddalore of
termination of the companytract made by rec. number
8280/70-b-3 dated 28-1-71.
the first two documents were to be summoned to be produced
by the district election officer and the other two by the
superintending engineer highways madras circle. before dealing with the question whether the learned judge
was right in holding that he companyld number go into the question
whether the 1st respondents numberination has been improperly
accepted because there was numberallegation in the election
petition that the election had been materially affected as a
result of such improper acceptance we may look into the
relevant provisions of law. under s. 81 of the
representation of the people act 1951 an election petition
calling in question any election may be presented on one or
more of the grounds specified in sub-section  1  of section
100 and section 101. it is number necessary to refer to the
rest of the section. under section 83  1   a  in so far as
it is necessary for the purposes of this case an election
petition shall companytain a companycise statement of the material
facts on which the petitioner relies. under section 100 1
if the high companyrt is of opinion-
 a  that on the date of his election a returned candidate
was number qualified or was disqualified to be chosen to fill
the eat under the companystitution or this act
 b
 c
 d  that the result of the election in so far as it
concerns a returned candidate has been materially affected

by the improper acceptance of any numberination or
the high companyrt shall declare the election of the returned
candidate to be void. therefore what section 100 requires
is that the high companyrt before it declares the election of a
returned candidate is void should be of opinion that the
result of the election in so far as it companycerns a returned
candidate has been materially affected by the improper
acceptance of any numberination. under s. 83 all that was
necessary was a companycise statement of the material facts on
which the petitioner relies. that the appellant in this
case has done. he has also stated that the election is void
because of the improper acceptance of the 1st respondents
numberination and the facts given showed that the 1st
respondent was suffering from a disqualification which will
fall under section 9a. that was why it was called improper
acceptance. we did number companysider that in the circumstances
of this case it was necessary for the petitioner to have
also further alleged that the result of the election in so
far as it companycerns the returned candidate has been
materially affected by the improper acceptance of the 1st
respondents numberination. that is the obvious companyclusion to
be drawn from the circumstances of this case. there was
only one sea to be filled and there were only two
contesting candidates. if the allegation that the 1st
respondents numberination has been improperly accepted is
accepted the companyclusion that would follow is that the
appellant would have been elected as he was the only
candidate validly numberinated there can be therefore no
dispute that the result of the election in so far as it
concerns the returned candidate has been materially affected
by the improper acceptance of his numberination because but-
for such improper acceptance he would number have been able to
stand for the election or be declared to be elected. the
petitioner had also alleged that the election was void
because of the improper acceptance of the 1st respondents
numberination. in the case of election to a single member
constituency if there are more than two candidates and the
numberination of one of the defeated candidates had been
improperly accepted the question might arise as to whether
the result of the election of the returned candidate had
been materially affected by such improper reception. in
such it case the question would arise as to what-would have
happened to the votes which had been cast in favour of the
defeated candidate whose numberination had been improperly
accepted if it had number been accepted. in that case it would
be necessary for the person challenging the election number
merely to allege but also to prove that the result of the
election had been materially affected by the improper
acceptance of the numberination of the other defeated
candidate. unless he succeeds in proving that if the votes
cast in favour of the candidate whose numberination had been
improperly accepted would have gone in the petitioners
favour and he would have got a majority he cannumber succeed in
his election petition. section 100 1   d   i  deals with
such a companytingency. it is numberintended to provide a
convenient technical sell in a case like this where there
can be numberdispute at all about the election being materially
affected by the acceptance of the improper numberination. materially affected is number a formula that has got to be
specified but it is an essential requirement that is
contemplated in this see-
tion. law does number companytemplate a more repetition of a
formula. the learned judge has failed to numberice the
distinction between a ground on which an election can be
declared to be void and the allegations that are necessary
in an election petition in respect of such a ground. the
petitioner had stated the ground on which the 1st
respondents election should be declared to be void. he had
also given the material facts as required under s. 83 1  a . we are therefore of opinion that the learned judge erred
in holding that it was number companypetent for him to go into the
question whether the 1st respondents numberination had been
improperly accepted. one other point which the learned judge failed to numberice is
that on the allegations companytained in the petition if they
were established the respondent must be deemed to suffer
the disqualification under s. 9a of the act and all that s.
100 1  a  requires is that on the date of his election a
returned candidate was number qualified or was disqualified to
be chosen to fill the seat under the companystitution or this
act. in order to declare his election void it is number
necessary that the election petition should state that the
result of the election was materially effected thereby. the
question of the election being materially affected does number
arise in a case falling under s. 100 1  a . though it is number necessary to cite any authorities we may
refer to a few decisions. in balakrishna v. fernandez 1
this companyrt pointed out that the first sub-section of section
100 lays down the grounds for declaring an election to be
void that sections 100 and 101 deal with the substantive
law on the subject of election that these two sections
circumscribe the companyditions which must lie established
before an election can be declared void or anumberher candidate
declared elected. it further observed
the heads of substantive rights in s. 100 1
are laid down in two separate parts the
first dealing with situations in which the
election must be declared void on proof of
certain facts and the second in which the
election can only be declared void if the
result of the election in so far as it
concerns the returned candidate can be held
to be materially affected on proof of some
other facts in the first part they are that
the candidate lacked the necessary
qualification or had incurred
disqualification. these are grounds on proof
of which by evidence the election can be set
aside without any further evidence. the
second part is companyditional that the result of
the election in so far as it companycerns a
returned candidate was materially affected by
the improper acceptance of a numberination. this
condition has to be established by some
evidence direct or circumstantial. it is
therefore clear that the substantive rights
to make an election petition are defined in
these sections and the exercise of the right
to petition is limited to the grounds
specifically mentioned. having dealt with the substantive law on the
subject of election petitions we may number turn
to the procedural provisions in the
representation of the people act. here we
 1 1969  3  s.c.r. 603.
have to companysider sections 81 83 and 86 of the
act. the first provides the procedure for the
presentation of election petitions. the
proviso to sub-section alone is material here. it provides that an election petition may be
presented on one or more of the grounds
specified in sub-section  1  of. s. 100 and
s. 101. that as we have shown above creates
the substantive right. section 83 then
provides that the election petition must
contain a companycise statement of the material
facts on which the petitioner relies the
section is mandatory and requires first a
concise statement of material facts what
is the difference between material facts and
particulars ? the word material shows that
the facts necessary to formulate a companyplete
cause of action must be. stated. omission of
a single material fact leads to an incomplete
cause of action and the statement of claim be-
comes bad. the function of particulars is to
present asfull a picture of the cause of
action with such further information in detail
as to make the opposite party understand the
case he will have to meet. that lays down the proper test. in konappa v.
viswanath 1  this companyrt pointed out that
where by an erroneous order of the returning
officer poll is held which but for that
order was number necessary the companyrt would be
justified in declaring those companytesting candi-
dates elected who but for that order would
have been declared elected. it was urged before us by mr. natesan that we should summon
the documents which were only four in number and decide the
case ourselves. we do number knumber whether any further material
would or would number be necessary to establish the ground
sought to be made out by the appellant or whether any oral
evidence would be necessary. in any case we do number companysider
it either necessary or expedient that we should deal with
the matter directly ourselves.


air 1955 sc 271

the judgment was delivered by mehr chand mahajan c.j. mehr chand mahajan c.j. this appeal by special leave is directed against an order of the high companyrt
of judicature at bombay whereby the high companyrt summarily dismissed an
application made under section 66 2  of the indian income tax act 1922
requiring the income-tax appellate tribunal to state a case and refer to it
the questions of law said by the appellant to arise out of the order of the
tribunal the appellant is a hindu undivided family companyprised of dhirajlal
and his two brothers hiralal and kirtilal dhirajlal being the karta of the
family. girdharlal trikamlal who was the father of dhirajlal hiralal and
kirtilal was the head of the joint hindu family before his death on 26th
july 1945. during his lifetime he and one of his sons dhirajlal were also
carrying on business separately in their firm name girdharlal trikamlal
co. as dealers in stocks and shares. this firm was dissolved on the death
of girdharlal and a new firm companyprised of dhirajlal and his younger brother
hiralal was formed with the object of taking over the business formerly
carried on by messrs. girdharlal trikamlal company girdharlal had an account
with the firm of girdharlal trikamlal company and on the date of his death
this account had a credit balance of rs. 25 31 999. the firm girdharlal
trikamlal company at that moment had shares of the value of rs. 23 60 000
approximately as part of their total assets. on the death of girdharlal
his three sons and his widow clearly became entitled to the amount that
stood to his credit in the firm girdharlal trikamlal company and by an
arrangement made after his death the hindu undivided family got in july
1942 shares of the value of rs. 18 34 586 from the firm towards payment
of its liability to the hindu undivided family as part of the inheritance
of girdharlal and for the balance the hindu undivided family was shown as
creditor of the new firm. the shares that were handed over were valued at
the market price. the hindu undivided family thus in its status as such
became the owner of those shares. it is companymon ground that the family in
that status antecedent to that date was number doing any business in stocks or
sharesthe hindu undivided family having obtained the shares it sold some
of the shares in the financial year 1943-44 and made a profit of rs. 1 42
025 in the assessment year 1944-45. the income-tax officer during that year
included the profit made by sale of shares in the assessment of the hindu
undivided family by arriving at the following finding --

the undivided hindu family companytinued to do the share business and
purchased shares worth rs. 3 00 460 during the account years 1942-43
and 1943-44. what the assessee got from their father mr. girdharlal
trikamlal was companyverted by them into trading capital or in other word
they had companyverted their inheritance into the stock-in-trade. the fact
that they had been purchasing other shares appears to point to this
conclusion only. in these circumstances i include the profit of rs. 1
42 025 in the assessment. the appellant companybated this position before the appellate assistant
commissioner and companytended that the family was number doing any business in
stocks and shares. on the other hand. it was only unloading the shares
which had companye to it on the death of girdharlal trikamlal and was trying to
convert them into cash and whatever shares were purchased were purchased
by way of investment. the appellate assistant companymissioner accepted this
contention and gave a reduction of rs. 1 42 025 in the income as
assessed. he said as follows --

thus on facts before me i hold that the transactions in shares are by
way of change in investment and number business dealings. hence the profit
is capital accretion and number business profit. thus the same is number
liable to assessment. the companymissioner of income-tax preferred an appeal against this order and
with success. the tribunal by its order dated the 1st august 1951 allowed
the appeal and restored the order of the income-tax officer. it held that
the transfer of shares of the value of rs. 18 34 586 by the new firm to
the hindu undivided family was a device to evade income-tax. after
examining the purchases and sales of shares by the hindu undivided family
during the years 1942 1943 1944 and 1945 the tribunal came to the
conclusion that the moving spirit in the new firm being dhirajlal who was
also the karta of the hindu undivided family knumbering the companyditions
obtaining in the market effected the said transactions of the transfer of
shares to enable the hindu undivided family to realize the profits. the
tribunal companycluded its decision with the following observations --

shares of the value of rs. 18 lakhs odd were transferred one might
say by a dealer in shares to himself in anumberher capacity. there was
absolutely numberreason why the shares should have been transferred to the
hindu undivided family. it has also number been pointed out why the hindu
undivided family found it necessary to effect sales of a large number
of shares in the financial years 1943-44 and 1944-45. it has also number
been shown why the hindu undivided family should have purchased shares
of the value of over rs. 2 lakhs between 1st august 1942 and 1st
march 1943. we have examined the frequencies of the sales in the
financial year 1943-44. shares were sold in july august october
december january february and march. the irresistible inference
appears to be that from the very start the intention of dhirajlal both
as a transferor and as a transferee was to deal in these shares. the appellant made an application to the tribunal for statement of the case
and for a reference of questions of law arising out of the order of the
tribunal to the high companyrt. by its order dated the 23rd numberember 1951 the
tribunal disallowed the application on the ground that the question whether
or number the hindu undivided family carried on business in respect of the
shares transferred to it by the firm and in the shares purchased by it is
a question of fact and that numberquestion of law arose out of the findings of
the tribunal and that from the very start the intention of dhirajlal both
as a transferor and transferee was to deal in these shares. dissatisfied
with the order of the tribunal the appellant made an application to the
high companyrt under section 66 2  for a direction to the tribunal to state a
case and to refer to it the following questions of law --

whether on the facts and circumstances of the case the assessee was
doing business in shares in the account year or

whether there is any material on record on the basis of which it companyld
be held that the assessee was doing the business in shares in the account
year

as already pointed out the high companyrt summarily dismissed the application
presumably on the ground that in its opinion numberquestion of law arose out
of the order of the tribunal. on an application being made to this companyrt
under the provisions of article 136 of the companystitution leave to appeal
against this order was granted

the question whether or number the hindu undivided family was doing business
in shares transferred to it by the firm is undoubtedly a question of fact
but if the companyrt of fact whose decision on a question of fact is final
arrives at this decision by companysidering material which is irrelevant to the
enquiry or by companysidering material which is partly relevant and partly
irrelevant or bases its decision partly on companyjectures surmises and
suspicions and partly on evidence then in such a situation clearly an
issue of law arises. it is apparent from the following quotation from the
judgment of the tribunal that number only was its approach to the question
raised before it tainted with suspicion but it took into companysideration a
number of circumstances based purely on companyjectures and surmises and for
which there was number a scintilla of evidence on the record. this is what was
said by it --

it appears to us that this transfer was effected with the object of
evading income-tax if it companyld be done so legally. if the shares had
remained with the new firm and if sales had been effected the profits
would have been liable to tax. the very fact that shares were
transferred and that also a substantial holding of the firm indicates
conclusively that the object of the transfer was to evade income-tax
if possible. the hindu undivided family it strikes us did number take the
shares as the return of its capital. the hindu undivided family knew
when the shares were transferred what the object underlying the
transfer was. if these shares had remained with the hindu undivided
family for a companysiderable time one might very well accept the
proposition that the hindu undivided family took the shares as the
return of its capital. the hindu undivided family however did number
keep the shares for a very long period. we have already indicated that
numbershares were sold between 1st august 1942 and 31st march 1943.
between 22nd july 1942 and 31st march 1944 shares of 16 companypanies
were sold for rs. 3 67 420. some of the shares sold were out of the
shares purchased between 1st august 1942 and 31st march 1943
 it goes without saving that the moving spirit in the new firm
was dhirajlal being the elder brother and the moving spirit in the
hindu undivided family would also be dhirajlal. he in his capacity as
the transferor and in his capacity as the transferee was fully aware of
the companyditions obtaining in the share market. prices were rising and
were likely to rise on account of war. the learned attorney-general frankly companyceded that it companyld number be denied
that to a certain extent the tribunal had drawn upon its own imagination
and had made use of a number of surmises and companyjectures in reaching its
result. he however companytended that eliminating the irrelevant material
employed by the tribunal in arriving at its companyclusion there was
sufficient material on which the finding of fact companyld be supported. in our
opinion this companytention is number well founded. it is well established that
when a companyrt of fact acts on material partly relevant and partly
irrelevant it is impossible to say to what extent the mind of the companyrt
was affected by the irrelevant material used by it in arriving at its
finding. such a finding is vitiated because of the use of inadmissible
material and thereby an issue of law arises

for the reasons given above we are of the opinion that both the tribunal
and the high companyrt were in error in the view that numberissue of law arose in
the case and that the tribunal companyld number be called upon to state a case and
to refer to the high companyrt any issue of law.


original jurisdiction writ petition number 119 of 1957.
writ petition under article 32 of the companystitution of india
for the enforcement of fundamental rights. achhru ram j. p. goyal and k. l. mehta for the
petitioners. n. sanyal additional solicitor-general of india k.l. misra advocate-general for the state of u. p. and gopi nath
dixit for the respondent. 1958. december 17. the judgment of the companyrt was delivered
by
wanchoo j.-this petition under art. 32 of the companystitution
challenges the companystitutionality of the

p. companysolidation of holdings act  u. p. v of 1954  as
amended by u. p. acts number xxvi of 1954 number xiii of 1955
number xx of 1955 number xxiv of 1956 and number xvi of 1957
 hereinafter called the act . the applicants are four
brothers holding land in village banat tahsil kairana
district muzaffarnagar. a numberification was issued under s.
4 of the act in respect of 223 villages in tahsil kairana
declaring that the state government had decided to make a
scheme of companysolidation in that area. this was followed up
by necessary action under the various provisions of the act
resulting in a statement of proposals under s. 19.
objections to these proposals were filed by the petitioners
and others which were decided in april 1956. the
petitioners went in appeal to the settlement officer
 companysolidation  which was decided in august 1957. it was
thereafter that the present petition was filed in this
court. the petitioners challenge the companystitutionality of the act
on various grounds of which the following five have been
urged before us-

section 6 read with s. 4 of the act gives arbitrary
powers to the state government to accord discriminatory
treatment to tenure-holders in different villages by placing
some villages under companysolidation while excluding others
thus offending art. 14 of the companystitution. sections 8 9 and 10 read with s. 49 of the act provide a
procedure for the companyrection and revision of revenue records
for villages under companysolidation which is vitally different
from that applicable to villages number under companysolidation
and there is thus discrimination which offends art. 14 of
the companystitution

sections 14 to 17 read with s. 49 companyfer arbitrary
powers on the companysolidation authorities under which they can
deprive a tenure-holder of his land or rights therein and
the tenure-holder has been deprived of the protection of
courts available to other tenure-holders in villages number
under companysolidation thus creating discrimination which
offends art. 14.

sections 19 to 22 read with s. 49 again create
discrimination on the same grounds as ss. 14 to 17 and are
therefore hit by art. 14 and

section 29-b which provides for companypensation gives
inadequate companypensation and is therefore hit by art. 31 2
of the companystitution. before we take these points seriatim it is useful to refer
to the background of this legislation. as far back as 1939
the u. p. companysolidation of holdings act number viii of 1939
was passed. it was however of little effect because it
could only be applied when more than one-third of the
proprietors of the cultivated area of a village applied for
an order of companysolidation of the village. it was
therefore felt that some kind of companypulsion would be
necessary in order to achieve companysolidation of holdings in
villages. that companysolidation would result in improving
agricultural production goes without saying and it was with
the object of encouraging the development of agriculture
that companysolidation schemes with a companypulsory character were
taken up in various states after the recommendation of the
famine inquiry companymission 1944 in its final report
 seepage 263 . the state of bombay. was the first to pass
an act called the bombay prevention of fragmentation and
consolidation of holdings act  bom. lxii of 1947 . this
was followed by the impugned act in uttar pradesh. the
object of the act is to allot a companypact area in lieu of
scattered plots to tenure-holders so that large scale
cultivation may be possible with all its attendant
advantages. thus by the reduction of boundary-lines saving
of land takes place and the number of boundary-disputes is
reduced. there is saving of time in the management of
fields inasmuch as the farmer is saved from travelling from
field to field which may be at companysiderable distances from
each other. proper barriers such as fences hedges and
ditches can be erected around a companypact area to prevent
trespassing and thieving. it would further be easier to
control irrigation and drainage and disputes over water
would be reduced companysiderably where companypact areas are
allotted to tenure-holders. lastly the companytrol of pests
insects
and plant-disease is made easier where farmers have companypact
areas under cultivation. these advantages resulting from
consolidation of holdings are intended to encourage the
development of agriculture and larger production of food
grains which is the necessity of the day. with these objects in mind the act was passed by the u. p.
legislature in 1953 and received the assent of the president
on march 4 1954. it was published in the gazette on march
8 1954 and declarations under s. 4 were made for the major
part of the state of uttar pradesh including the
petitioners village in july 1954.
the scheme of the act is as follows-
when companysolidation of a village is taken up the first thing
that is done is to companyrect the revenue records and ss. 7 to
12 deal with that. then companyes the second stage of preparing
what are called statements of principles  see ss. 14 to
18 . objections to these principles are entertained and
decided and thereafter the principles are companyfirmed under s.

then companyes the third stage  vide ss. 19 to 23  which
deals with the preparation of the statement of proposals. objections to this are also invited and disposed of and
then proposals are companyfirmed under s. 23. after the
proposals have been companyfirmed we companye to the last stage in
which the companyfirmed proposals are enforced  see ss. 24
onwards . it will be clear therefore from the objects of
the act and the advantages that accrue from its
implementation that it is a piece of legislation which
should be a boon to the tenure-holders in a village and
should also lead to the development of agriculture and
increase of food-production. it is in this setting that we
have to examine the attack that has been made on the
constitutionality of the act. re. 1 section 6 of the act gives power to the state
government at any time to cancel the declaration made under
s. 4 in respect of the whole or any part of the area
specified therein. when such declaration is made the area
ceases to be under companysolidation operations and s. 5 which
provides for the effect of a declaration ceases to operate. it is urged that s. 4
gives arbitrary power to the state government to cancel the
declaration even with respect to a part of the area companyered
by it and thus discriminates between villages which are
under companysolidation and those which are number under
consolidation. the learned additional solicitor general
counters this argument in two ways  i  section 6 is numberhing
more than a restatement of the power which the state
government otherwise possessed under the general clauses
act and  ii  the high status of the authority to whom the
power is given namely the state government and the rules
framed under the act laying down a standard for the
government to follow remove any flavour of arbitrariness
which the terms of the section might import. it is number
necessary to express any opinion in this case on the said
contention for even if it be accepted the result would be
only that s. 6 would be struck down. the petitioners would
be in the same position with s. 6 on the statute or without
it. it may be that if a citizen in whose favour an order
of companysolidation has been made but subsequently cancelled
comes to companyrt with a grievance that the order of
consolidation was for his benefit but was cancelled in
exercise of a power under a void section this question
might arise for companysideration. it may also be that the
petitioners right might be infringed if s. 6 were number
severable from the other provisions of the act which enable
the government to direct companysolidation of holdings. the
power of cancellation cannumber be said to be so inextricably
mixed up with the power to order companysolidation as to prevent
the operation of one section without the other. number can it
be said that the legislature would number have companyferred the
power on the government to companysolidate holdings without at
the same time companyferring on them the power to cancel the
said order of companysolidation. the said provisions are
clearly severable. in the circumstances as the
petitioners case is number affected by s. 6 of the act we
leave this open to be decided in an appropriate case. re. 2 this deals with the first stage of revision and
correction of maps and records which has to take place
before the actual companysolidation scheme is put
into force. section 7 provides for the examination of the
revenue records by the assistant companysolidation officer and
he is enjoined to test the accuracy of the village map
khasra and the current annual registers by making a partal
in accordance with the procedure to be prescribed. after he
has done the partal he is to prepare a statement showing
the mistakes discovered in the map khasra and khatauni
and the number and nature of disputes pertaining to land
records under the u. p. land revenue act 1901. then under
s. 8 he submits a report to the settlement officer  company-
solidation  in this companynection with his opinion whether any
revision of such maps and records is needed. on receipt of
this report the settlement officer may either order the
assistant companysolidation officer to proceed with the
correction of maps and records which we presume he will
order when there are number too many mistakes or recommend to
the state government for revision of maps or records in
accordance with the provisions of ch. iv of the u. p. land
revenue act 1901 which he will presumably do if there are
too many mistakes found. if the assistant companysolidation
officer is ordered to make the companyrections he will make a
further partal if necessary and companyrect the map or the
entries in annual register in accordance with the procedure
to be prescribed. the procedure is prescribed in r. 22 and
among other things it lays down that the assistant
consolidation officer shall issue a numberice to all persons
affected by the provisional entries proposed by him
objections are invited and parties are examined and heard
and their evidence taken and then the assistant
consolidation officer makes the companyrections. his order is
open to appeal within twentyone days under s. 8 4  to the
consolidation officer and the order of the latter is made
final. it is urged that this procedure is vitally different from
the procedure prescribed under the u. p. land revenue act
and that under s. 49 of the act the jurisdiction of the
civil and revenue companyrts with respect to any matters arising
out of companysolidation proceedings is barred thus depriving
those affected by the orders of the companysolidation officer
the right to file a suit as they
could have done under the provisions of the u. p. land
revenue act  see ss. 40 41 51 and 54 . there is numberdoubt
that there is some difference between the procedure provided
under the act and that which the tenure-holders would have
been entitled to if their village was number under
consolidation. but if companysolidation is a boon to the
tenure-holders of a village as we hold it is and if it is
to be put through within a reasonable period of time it is
necessary to have a procedure which would be shorter than
the ordinary procedure under the u. p. land revenue act or
through a suit in a civil or revenue companyrt. the procedure
that has been provided cannumber by any means be said to be
arbitrary or lacking in the essentials of principles of
natural justice. the assistant companysolidation officer gives
numberice to the persons affected hears their objections and
gives them an opportunity to produce evidence. thereafter
he decides the objections and one appeal is provided against
his order. this should in our opinion be enumbergh in the
special circumstances arising under the act to do justice to
those who object to the companyrection of records. all that has
happened is that the number of appeals is out down to one
and that in our opinion is number such a violent departure from
the ordinary procedure as to make us strike down the
provisions companytained in ch. ii of the act as
discriminatory in the peculiar circumstances arising out of
a scheme of companysolidation which must if it has to be of any
value be put through within a reasonable period of time. whatever difference there may be may well be supported as a
permissible classification on an intelligible differentia
having a reasonable relation to the object sought to be
achieved by the act. further s. 12 provides that where
there is dispute as to title and such question has number
already been deter. mined by any companypetent companyrt the
consolidation officer has to refer the question for
determination to the civil judge who thereafter will refer
it to the arbitrator. the arbitrator then proceeds in the
manner provided by r. 73 and gives a bearing to the parties
and takes evidence both oral and documentary before making
his award and s. 37 of the act makes the
arbitration act applicable to the proceedings before the
arbitrator in the matter of procedure. taking therefore
the scheme of ch. 11 and remembering that if companysolidation
is to be put through there must be a more expeditious
procedure there is in our opinion rational basis for
classification which justifes the procedure under ch. 11 of
the act read with the rules in villages where companysolidation
scheme is to be effective. the attack therefore under
art. 14 of the companystitution on the provisions of ch. ii
fails. re. 3 and 4 the companytentions on these heads may be taken
together. they attack the provisions of ch. iii dealing
with the statement of principles and statement of proposals. the statement of principles is first published and
objections are invited. under s. 17 the assistant
consolidation officer decides the objections after hearing
the parties if necessary and taking into account the view
of the companysolidation companymittee. he then submits a report to
the companysolidation officer who after hearing the objectors
and taking such evidence as may be necessary passes final
order and companyfirms the statement of principles  see r. 43-
b . similarly when statements of proposals are published
objections are invited to them and the same procedure is
followed in the decision of these objections as in the case
of the objections to the statement of principles. in the
case of the statement of proposals also there is similar
provision to refer disputed question of title to the civil
judge who in his turn refers it to the arbitrator. section 22 also provides that where such question has been
referred to the arbitrator all suits or proceedings in the
court of first instance appeal reference or revision in
which the question of title to the same land has been
raised shall be stayed. section 22 3  makes the decision
of the arbitrator final. there is numberprovision for appeal
in ch. iii though in fact two persons hear the matter
namely the assistant companysolidation officer and the
consolidation officer. but the main attack is on the
provisions of s. 22 2  on account of which it is said that
even where a party has obtained a decree which might be
under appeal the jurisdiction of the ordinary
courts is taken away and the decision of the arbitrator is
made final. that is undoubtedly so. but if the
consolidation scheme has to be put through in a reasonable
period of time such a provision is in our opinion
necessary but for it the companysolidation schemes may never be
really put through for there will be little purpose in
making companysolidation where a large number of disputes are
pending in the companyrts. reasons which we have given in
dealing with the second point apply with equal force to
these two points also and we are of opinion that there is a
rational basis for a classification which has a nexus with
the object of the act and therefore the attack under art. 14 on the provisons of chapter iii also must fail. re. 5. under this head the inadequacy of companypensation
provided under s. 29-b of the act is raised. it may be
mentioned that the act as originally passed did number
contain any provision for companypensation. there were a number
of writ applications in the allahabad high companyrt and that
court held that inasmuch as some property was taken away
under s. 14 1   ee  for public purposes and numbercompensation
was provided that provision was void under art. 31  2  as
it stood before the companystitution  fourth amendment  act
1955  hereinafter called the fourth amendment . appeals by
the state government from that decision of the allahabad
high companyrt are pending before us and we shall deal with them
separately. the legislature then enacted s. 29-b laying
down the principles on which companypensation would be paid for
lands taken away under s. 14  1   ee  after the decision of
the allahabad high companyrt. this section was put by act xvi
of 1957 in the original act with retrospective effect from
the date from which the original act was enforced. it is
urged that the companypensation provided therein is inadequate
and therefore the provision should be struck down under
art. 31  2  as it was before the fourth amendment. arguments were also addressed on the question whether s. 29-
b would be saved by the
fourth amendment. we however think it unnecessary to go
into these arguments for we have companye to the companyclusion that
in the circumstances of this case the companypensation provided
under s. 29-b is adequate. assuming that the case is
governed by art. 31  2  as it was before the fourth
amendment s. 29-b provides for payment of cash companypensation
equal to four times the value determined at hereditary rates
to a bhumidar and two times the value to a sirdar. the
difference between the two rates has number been attacked for
the rights of a bhumidar are much higher than the rights of
a sirdar. the bhumidar is the owner of the land while the
sirdar is merely a tenant but the argument is that the
amount provided is inadequate and that it is certainly number
the fair market value of the land. let us see what s. 14  1   ee  provides. it lays down the
basis on which the tenure--holder will companytribute towards
the land required for public purposes and the extent to
which vacant land may be utilised for the said purpose. we
are here companycerned with the first part namely the
contribution of tenure-holders towards land required for
public purposes. in this case the petitioners had lands in
one chak of the rental value of rs. 20-6-0 and they have
been allotted lands of the rental value of rs. 20-5-0
instead. in anumberher chak in place of land the rental value
of which is rs. 148-10-0 they have been allotted land of the
rental value of rs. 147-13-0. thus out of the land valued
at rs. 169-0-0 they have been allotted land of the value of
rs. 168-2-0 and land valued at annas 0-14-0 has gone to the
common pool. the percentage is just over a half per cent. it hardly ever exceeds one per cent. thus the land which is
taken over is a small bit which sold by itself would hardly
fetch anything. these small bits of lands are companylected
from various tenure-holders and companysolidated in one place
and added to the land which might be lying vacant so that it
may be used for the purposes of s. 14  1   ee . a companypact
area is thus created and it is used for the purposes of the
tenure-holders themselves and other villagers. form ch-21
framed under r. 41  1  shows the purposes to which this land
would be applied
namely  1  plantation of trees  2  pasture land  3
manure pits  4  threshing floor  5  cremation ground  6
graveyards  7  primary or other school  8  playground  9
panchayatghar and  10  such other objects. these small
bits of land thus acquired from tenure-holders are
consolidated and used for these purposes which are directly
for the benefit of the tenure-holders. they are deprived of
a small bit and in place of it they are given advantages in
a much larger area of land made up of these small bits and
also of vacant land. the question then is whether in these
circumstances it can be said that the tenureholders have
been given adequate companypensation by. s. 29-b for the small
bits of land acquired from them for public purposes. this
case must be distinguished from other cases where lands are
acquired under the land acquisition act for here the
benefit is direct to the tenure-holders while in ordinary
cases of land acquired for public purposes if there is any
benefit to the person from whom the land is acquired it is
indirect and remote. it is companytended on behalf of the state
in the circumstances that the companypensation which the tenure-
holders get is number merely the cash companypensation which they
receive under s. 29-b but also the advantage which they
receive by these small bits taken from them being
consolidated into a larger area of land in which they will
have benefits the nature of which is indicated in form ch-
21 over and above the advantage of having their scattered
holdings companysolidated into a companypact block. the question
therefore is whether in these circumstances the provision
of actual cash companypensation under s. 29-b can be said to be
inadequate. we are of opinion that taking into account the
peculiar companyditions in cases of this kind and remembering
that the land taken from each individual tenure-holder may
be a small bit and it is then companysolidated into a large area
by adding some other lands taken from other tenure-holders
and the whole is then used for the advantage of the whole
body of tenure-holders it cannumber be said that the cash
compensation added to the advantages which the tenure-
holders get in the
large area of land thus companystituted and on account of
getting a companypact block for themselves is inadequate.