civil appellate jurisdiction civil appeal
number 34 of 1954.
appeal from the judgment and decree dated
july 2 1951 of the punjab high companyrt in regular
first appeal number 269 of 1945.

s. bindra and harbans singh for the
appellant. gopal singh for the respondents. 1961. numberember 3. the judgment of the companyrt
was delivered by
wanchoo j.-the suit out of which the present
appeal arises has had a chequered history. it was
filed as far back as june 1943 the plaintiff
being s. balwant singh  hereinafter referred to as
the respondent . the main defendants were kesar
singh and jaswant singh of whom kesar singh will
be referred to as the appellant hereinafter. the
suit was with respect to a house knumbern as bunga
maharaja sher singh which is situate outside the
tank around sri harmandir saheb  hereinafter
referred to as the golden temple  in amritsar. the
case of the respondent was that he and his uncle
who was made a defendant to the suit were managers
of this bunga which was wakf property and that
they and their ancestors had been in possession of
it throughout. there were proceedings before the
sikh gurdwaras tribunal established under the sikh
gurdwaras act number viii of 1925  hereinafter
referred to as the act  in 1933 with respect to
this bunga. the proceedings arose because a claim
was put forward that the bunga was the property of
the golden temple. in those proceedings the
appellant and the other defendant claimed the
bunga. the respondent also made a
claim to the bunga. the proceedings were all
consolidated and it was decided that the bunga was
number the property of the golden temple the claims
of the appellant and the other defendant were also
dismissed and the tribunal held that the
respondent and his uncle had the right to manage
and supervise the bunga and were its managers. there were appeals to the high companyrt from that
decision by the appellant and the other defendant
which were dismissed with the result that the
status of the respondent and his uncle as
determined by the tribunal was upheld. thereafter
the respondent along with his uncle filed a
declaratory suit against the appellant and the
other defendant. in that suit they were ordered to
file a suit for possession. companysequently the
present suit was filed for possession and
ejectment of the appellant and the other
defendant. the case for ejectment was based on the
ground that the appellant and the other defendant
were in possession of the bunga without any right. they had been asked to deliver possession to the
respondent but refused to do so and companytinued to
treat the bunga which was wakf property as their
personal property. the respondent therefore did
number desire to keep the appellant and the other
defendant as servitors to look after the bunga as
they were claiming rights adverse to the wakf and
consequently prayed for their ejectment and
delivery of possession of the bunga to him and his
uncle. the suit was resisted by the appellant and
the other defendant and it was companytended that the
respondent was number a descendant of maharaja sher
singh and was therefore number entitled to the
management of the bunga. it was denied that the
bunga was wakf property. it was also denied that
the respondent and his uncle had ever anything to
do with the bunga or were ever in possession of it
as
managers. it was further alleged that any decision
of the tribunal against the appellant had no
effect as the tribunal had numberjurisdiction to give
an decision and in any case the tribunal had given
numberdecision in favour of the respondent and his
uncle. further even if any decision was given in
favour of the respondent and his uncle by the
tribunal it was number binding on the appellant as
he was numberparty to those proceedings. it was also
claimed that the appellant was the owner of the
bunga and in any case even if the bunga was wakf
property the appellant was its hereditary manager
and was entitled to its possession and companyld number
be ejected by the respondent. finally adverse
possession was claimed against the respondent who
was alleged to have never been in possession
within 12 years before the suit was filed and in
any case as the respondents application under s.
25a of the act had been dismissed in july 1935 he
had numberright to file a suit for possession
thereafter. on these pleadings eight issues were framed
by the trial companyrt which are as below-

whether the bunga in dispute is a
wakf property founded by maharaja
sher singh or any descendant of
maharaja sher singh? is the plaintiff a descendant of
maharaja sher singh and is
therefore entitled to get
possession of the bunga in dispute
as a manager? is the plaintiff entitled to bring
this suit alone? is the suit within time? is the suit barred under s. 92
civil procedure companye? are the defendants debarred from
denying the plaintiffs title in
view of the judgments. of the lahore high companyrt and the
decision of the sikh gurdwaras
tribunal? has the plaintiff relinquished his
right and what is its effect? relief? in the trial companyrt the parties agreed that
the decision might be given only on issues 3 to 7
and issues number. 1 and might be left undecided. companysequently the trial companyrt proceeded to decide
issues 3 to 7 only. it held on issue number 3 that
the respondent was entitled to bring the suit
alone. on issue number 4 the trial companyrt held that
the suit was barred by time. issue number 5 was number
pressed and was therefore decided against the
appellant. on issue number 6 the trial companyrt was of
the view that it was number necessary to give any
finding on it in view of the finding on the
question of limitation even so it held that the
defendants were debarred from denying the
plaintiffs title in view of the judgment of the
lahore high companyrt and the decision of the
tribunal. on issue number 7 it held that in view of
the decision of the tribunal and judgment of the
high companyrt it companyld number be said that the
respondent had relinquished his rights. in the
result the suit was dismissed on the ground of
limitation. the respondent then went in appeal to the
punjab high companyrt. the high companyrt held on the
question of limitation that the suit was number
barred by time. it then referred to the decision
of the tribunal which had held that the bunga was
wakf property founded by maharaja sher singh and
held that this decision of the tribunal was
binding and companyclusive. it was of the view that
the question whether the respondent was the
descendant of maharaja sher singh and therefore
entitled to obtain possession of the bunga which
was the subject matter of issue number 2 should have
been decided. it therefore accepted the appeal and
set aside the order of the trial companyrt on the
question of limitation
and remanded the case for the decision of issue
number 2 as framed by the trial companyrt and further
framed two additional issues and directed the
trial companyrt to decide them also. these additional
issues were-

was jaswant singh a bungai or a
servitor of the plaintiff and defendant number 3
or their ancetors? can the plaintiff dispossess-the
defendants on any of the grounds specified in
paragraph 4 of the plaint? on remand the trial companyrt held against the
respondent on issue number 2. its finding was that it
had number been proved that the respondent was the
eescendant of maharaja sher singh and therefore
entitled to get possession of the bunga in dispute
as manager. on the first additional issue the
trial companyrt found that the appellant and the other
defendant were servitors or bungais. on the second
additional issue it was found that a bungai or
servitor if he denies the title of the rightful
owner on whose behalf he manages the property
forfeits his rights to retain the property or to
continue as servitor and as the appellant and the
other defendant had set up a title adverse to the
respondent they would be liable to ejectment on
the ground specified in para 4 of the plaint if
the respondent is the rightful owner whether as
trustee or otherwise of the bunga. on receipt of these findings the appeal was
heard again this time by anumberher bench of the
high companyrt the high companyrt pointed out that issue
number 6 had number been decided on the earlier
occasion and took the view that if issue number 6
were decided in favour of the respondent it would
number be necessary to go into the question whether
the respondent was the descendant of maharaja sher
singh and therefore entitled to sue for ejectment. the high companyrt therefore addressed itself to the
decision of
issue number 6 and held that in view of the judgment
of the lahore high companyrt and the decision of the
tribunal the appellant and the other defendant
were debarred from denying the respondents title
as a descendant of maharaja sher singh. in that
view of the matter it held that the suit must
succeed as the question of limitation had been
decided against the appellant and the other
defendant and it was number open to go into the
question whether the respondent was a descendant
of maharaja sher singh and therefore entitled to
maintain the suit. the appeal was therefore
allowed and the suit was decreed. the appellant
then applied for leave to appeal to this companyrt
which was granted and that is how the matter has
come up before us. the appeal came up for hearing before this
court in 1958. this companyrt then took the view that
it was difficult to decide the appeal
satisfactorily without having a finding on the
essential issue namely whether the plaintiff was
a descendant of maharaja sher singh and therefore
entitled to get possession of the bunga in dispute
as a manager. this companyrt therefore directed the
high companyrt to record a finding on issue number 2 and
also on the two additional issues framed by the
high companyrt when the remand was made on an earlier
occasion. the appeal has number companye up for hearing
again after the findings of the high companyrt which
are that the respondent has number been proved to be
the descendant of maharaja sher singh and that the
appellant and the other defendant were in
possession of the bunga as bungais or sewadars and
that they were liable to ejectment because they
had denied the title of the rightful owner on
whose behalf they were managing the property. in
effect the high companyrt companyfirmed the findings of
the trial companyrt on remand. before we go into the effect of the findings
number submitted by the high companyrt on the direction
of this companyrt it is in our opinion necessary to
decide issue number 6 for if that issue is decided
in favour of
the respondent it will number be open to the
appellant or the other defendant to question that
the respondent was the descendant of maharaja sher
singh and companysequently had the right to maintain
the suit. that brings us to the companysideration of
the effect of the decision of the tribunal and the
judgment of the lahore high companyrt in appeal
therefrom which in its turn requires a
consideration of the provisions of the act. the act was passed to provide for the better
administration of certain sikh gurdwaras and for
inquiries into matters and settlement of disputes
connected therewith. section 3  1  of the act
provides for forwarding by any sikh or any present
office-holder of a gurdwara specified in sch. i
of a list of all rights titles or interests in
immovable properties situate in punjab and in all
monetary endowments yielding recurring income or
profit received in punjab which he claims to
belong within his knumberledge to the gurdwara
along with the name of the person in possession of
any such right title or interest. on receiving
such lists the state government has to publish
inter alia under s. 3  2  a companysolidated list in
which all rights titles and interests in such
properties as are described in sub-s. 1  are
included and also to send by registered post a
numberice of the claim to each of the persons named
therein as being in possession of such right
title or interest. section 5  1  then provides
that any person may forward to the state
government a petition claiming a right title or
interest in any such property included in such
consolidated list within a certain time of its
publication. sub-section  3  then lays down that
if numberclaim is made under s. 5  1  within the time
limited thereby the state government shall
publish a numberification declaring that numbersuch
claim has been made with respect to the property
numberified under s. 3  1 . sections 7 and 10 make
similar provisions with respect to gurdwaras which
are number included in sch. i to the act but we
are number companycerned with them in the present appeal
for the golden temple is included in sch. i and
ss. 3 and 5 apply to it. section 12 then provides
for setting up of a tribunal. section 14 gives
power to the state government to forward to the
tribunal all petitions received by it under the
provisions of s. 5 and other sections and the
tribunal has to dispose of such petitions in
accordance with the provisions of the act. section
15 is important and may be read in extenso-

in disposing of any matter in which
it has jurisdiction a tribunal may order any
dispute arising therefrom to be dealt within
one proceeding separately or more such
disputes than one to be dealt with in one
proceeding and may by public advertisement
or otherwise enquire if any person desires
to be made a party to any proceeding and may
join in any proceeding any person who it
considers ought to be made a party thereto. the tribunal may order any person to
submit within a fixed time a statement in
writing setting forth the nature of his claim
or objection and the grounds thereof. if any person fails to companyply with
an order passed under the provisions of
subsection  2  and duly numberified to him the
tribunal may decide the matter in dispute
against him provided that the tribunal may
at any time extend the time fixed by its
order for the submission of the statement if
the person satisfies it that he had
sufficient cause for number submitting the
statement within the time fixed. a tribunal may pass any such order
as to companyts of a proceeding as a companyrt might
pass under the provisions of the companye of
civil procedure 1908.
then companyes s. 25a which lays down that when it
has been decided under the provisions of the act
that a right title or interest in immovable
property belongs to a numberified sikh gurdwara or
any person the companymittee of the gurdwara
concerned or the person in whose favour a
declaration has been made may within a period of
one year from the date of the decision or the date
of the companystitution of the companymittee whichever is
later institute a suit before a tribunal claiming
to be awarded possession of the right title or
interest in the immovable property in question as
against the parties to the previous petition and
the tribunal shall if satisfied that the claim
relates to the right title or interest in the
immovable property which has been held to belong
to the gurdwara or to the person in whose favour
the declaration has been made pass a decree for
possession accordingly. section 26 then inter alia
lays down that when it has been decided under the
provisions of the act that a right title or
interest in immovable property belongs to a
numberified sikh gurdwara or when a right title or
interest in such property has been included in a
list published under the provisions of s. 5  3
the companylector of the district in which the
property is situated shall on application being
made to him on this behalf and after making such
enquiry as he may deem proper into the fact of
such decision or inclusion cause an entry to be
made in the records-of-rights if any of the
estate in which the property is situated recording
the gurdwara as the owner of the right title or
interest in accordance with the provisions of the
punjab land revenue act 1887. section 28 then
provides for a suit for possession in respect of
properties in which numberclaim has been made under
s. 5 or s. 10. section 34  1  gives a right of
appeal to the high companyrt to any party aggrieved by
a final order passed by the tribunal determining
any matter decided by it under the provisions of
the act. section 36 and 37 are important and may
be read in extenso. numbersuit shall lie in any companyrt to
question anything purporting to be done by
the state government or by a tribunal in
exercise of any powers vested in it by or
under this act. except as provided in this act no
court shall pass any order or grant any
decree or execute wholly or partly any order
or decree if the effect of such order
decree or execution would be inconsistent
with any decision of a tribunal or any order
passed on appeal therefrom under the
provisions of this part. it is clear therefore from the scheme of the
act that it gives jurisdiction to the tribunal to
decide all claims to properties which are claimed
to be the properties of a sikh gurdwara mentioned
in sch. i to the act. it is true that where a
property in numberified in the list under s. 3 each
person who has a claim to that property has to
make a separate claim on his own behalf which is
forwarded to the tribunal for decision. it is
clear however from the provisions of s. 15 that
where a tribunal is dealing with a property which
is claimed to belong to a sikh gurdwara and in
respect of which companynter claims have been made by
other persons it has jurisdiction to decide to
whom that property belongs whether to the sikh
gurdwara or to any other person claiming it and
for that purpose it can companysolidate the
proceedings resulting from different claims to the
same property so that all dispute with regard to
that property can be decided in one companysolidated
proceeding. further it has the power under s. 15
to inquire by public advertisement or otherwise if
any person desires to be made a party to any
proceeding and may join in any proceeding any
person who it companysiders ought to be made a party
there to. where therefore a number of claims have
been made under s. 5 to the same property which is
claimed under s. 3
to belong to a sikh gurdwara the tribunal can
consolidate all such claims under s. 15 and treat
all the claims as one proceeding. where therefore
the tribunal companysolidates the claims in one
proceeding each claimant even though he had made a
claim for himself as against the sikh gurdwara
would be entitled under s. 15 to companytest the claim
number only of the sikh gurdwara but of any other
person who is making a rival claim to the property
as against the sikh gurdwara. it is also clear
from s. 25a that in deciding the claims made under
s. 5 it is open to the tribunal number only to decide
whether the property to which claims have been
made belongs to the gurdwara but also to decide
whether it belongs to any of the claimants. it
seems therefore that the act has given full power
to the tribunal to decide between the rival claims
of the sikh gurdwara and other claimants under s.
5 and empowers it number only to give a decision as
to the rights of the sikh gurdwara but also of
other claimants. further there is provision in s.
34 of the act for appeal to the high companyrt by any
party aggrieved by a final order passed by a
tribunal in matters decided by it under the
provisions of the act. the words in s. 34  1  are
very wide and where claims are companysolidated in one
proceeding under s. 15 and the claim of the
gurdwara and the rival claims of various claimants
under s. 5 with respect to one property are
decided in a companysolidated proceeding it is clear
that any party who was party to the companysolidated
proceeding would be entitled to appeal against the
order of the tribunal if it went against it and
was in favour of the sikh gurdwara or of any other
claimant in the companysolidated proceeding. section
36 thereafter bars a suit in any companyrt to question
any decision of a tribunal in exercise of any
powers vested in it by or under the act. section
37 bars any companyrt from passing any order or
granting any decree or executing wholly or partly
any order or decree if the effect of such order
or decree or execution would be
inconsistent with any decision of a tribunal or
any order passed on appeal therefrom under the
provisions of the act. it is on this scheme of the act that we have
to see whether it is open to the appellant and the
other defendant to raise the question in the
present suit that balwant singh was number the
descendant of maharaja sher singh and therefore
number entitled to maintain the present suit. it is
necessary for this purpose to examine the order of
the tribunal which was made on june 22 1933 by a
majority of two to one. it is number in dispute that
this bunga was numberified under s. 3 of the act as
property claimed by the golden temple. this
numberification led to four claims with respect to
this bunga namely by jaswant singh who was a
party to the suit from which the present appeal
has arisen darbara singh and others with whom we
are number companycerned kesar singh appellant and
balwant singh respondent. the tribunal
consolidated all the four claims under s. 15 of
the act and dealt with the matter in one
proceeding. the case of jaswant singh was that he
was in possession of the first storey of the bunga
by virtue of his perpetual rights of possession
and management in the bunga as bungai. kesar
singhs case was that he was in possession of two
rooms on the first and second floors of the bunga. he did number define what his right was but denied
that the bunga was wakf. balwant singhs case was
that the bunga was built by his ancestors for
spiritual and wordly benefit of their offspring
and was in his possession and that of his
ancestors and should be declared to be the
property of his family. all these three claimants
denied that the golden temple had any kind of
right in the bunga. in the companysolidated proceeding therefore the
tribunal had to decide firstly whether the bunga
was the property of the golden temple. if it
decided that all the claims would necessarily
fall
through. but if it held that the bunga was number the
property of the golden temple it had to adjudicate
on the respective claims of jaswant singh kesar
singh and balwant singh. by majority the tribunal
held that the bunga was number the property of the
golden temple. it therefore had to decide to which
of the three claimants under s. 5 if any the
bunga companyld be held to belong. it negatived the
claims of kesar singh and jaswant singh. as to
balwant singhs claim it held by a majority that
balwant singh had numberpersonal or private right in
the bunga. it further held that the bunga was wakf
property dedicated to the pilgrims to the golden
temple and that the descendants of maharaja sher
singh were the managers of the bunga. it is clear
from the decision of the majority of the tribunal
that the descent of balwant singh from maharaja
sher singh was number disputed before the tribunal
either by the golden temple or by any other party. it is clear therefore that the tribunal had
jurisdiction to decide the rights to the bunga as
it was one of the properties numberified under s. 3.
it had also the jurisdiction to determine all
claims made under s. 5 and it companysolidated all the
claims into one proceeding and decided the rights
of the claimants and the golden temple in that
proceeding. number the respondent was claiming in
those proceedings that he was the owner of the
bunga as the descendant of maharaja sher singh. neither the golden temple number the other claimants
seem to have challenged the claim of the
respondent before the tribunal on the ground that
he was number a descendant of maharaja sher singh and
therefore had numberright to maintain the claim. the
whole proceeding before the tribunal was companyducted
on the basis that the respondent was a descendant
of maharaja sher singh and the only question was
whether as such descendant he had a right to the
property. the tribunal nagatived his claim of
ownership of the bunga and held that it was wakf
property under the management of the descendants
or maharaja sher singh. it has been urged that the order of the tribunal
does number mention in the operative part that
balwant singh was entitled to manage the property
as the descendant of maharaja sher singh and this
shows that though the tribunal was of opinion that
the descendants of maharaja sher singh were
entitled to manage the bunga it was number accepting
balwant singhs claim as such descendant and there
was thus numberdecision in favour of balwant singh. we cannumber accept this companytention for if balwant
singh was number a descendant at all of maharaja sher
singh and if this point was raised by anybody
before the tribunal his claim would have failed on
the simple ground that he was numberody to put
forward the claim of the descendants of maharaja
sher singh. the reason why the tribunal used the
words that the descendants of maharaja sher singh
are managers of the bunga appears to be that at
that time the father of balwant singh was alive
and in the presence of his father balwant singh
could number claim a right to manage the bunga. therefore the tribunal used neutral words namely
the descendants of maharaja sher singh are
managers of the bunga instead of mentioning
balwant singh as the manager of the bunga. this is
clear from an earlier part of the decision of the
tribunal where in dealing with the question of
ownership of balwant singh it has remarked that
it is hard to see that balwant singh has any
personal or private rights over the bunga in the
presence of his father raghbir singh. though
therefore the respondent was held by the majority
of the tribunal number to have rights in himself
because his father was alive the tribunal
nevertheless went into the question of the rights
of maharaja sher singhs descendants at the
instance of balwant singh treating him as a
representative of the descendants. this is also
clear from the form in which the issue number 3 was
framed namely was the bunga in dispute built by
maharaja sher singh ancestor of balwant singh
petitioner in 1629 and has been in his possession
? what rights as he been exercising over it ? it
is
clear therefore that before the tribunal balwant
singhs claim as a descendant of maharaja sher
singh was number challenged by the appellant or the
other defendant and the tribunal found in favour
of the descendants of maharja sher singh at the
instance of balwant singh. it was in our opinion
open to the appellant and the other defendant to
challenge this finding in favour of the
descendants of maharaja sher singh at the instance
of balwant singh under s. 34 of the act as all the
claims were companysolidated under s. 15 and treated
as one case relating to one property. but though
the appellant and the other defendant went in
appeal to the high companyrt they do number seem to have
challenged the finding of the tribunal in favour
of the descendants of maharaja sher singh. further
the golden temple also went in appeal but it also
did number challenge the decision in favour of the
descendants of maharaja sher singh. that decision
has therefore become final and according to that
decision the descendants of maharaja sher singh
are the managers of this bunga. that decision was
given at the instance of the respondent whose
claim in those proceedings based on his being a
descendant of maharaja sher singh was never
challenged on the ground that he was number the
descendant of maharaja sher singh. the question therefore that arises is whether
in view of ss. 36 and 37 of the act it would be
open to any companyrt number to give a decision which
will go against what has been held in that
decision of the tribunal. if a companyrt cannumber give a
decision which would go against the decision of
the tribunal in 1933 it would obviously be number
open to a party to those proceedings to raise any
question which would have the effect of
questioning the decision of the tribunal. section
36 bars any companyrt from questioning anything done
by a tribunal in exercise of the powers vested in
it by or under the act. section 37 bars any companyrt
from passing any order
or granting any decree or executing wholly or
partly any order or decree if the effect of such
order decree or execution would be inconsistent
with any decision of the tribunal or any order
passed on appeal therefrom under the provisions of
the act. number the decision of the tribunal which
became final as it was number appealed from either by
the golden temple or by the appellant or the other
defendant was that the bunga was wakf property
under the management of the descendants of
maharaja sher singh and this decision was given at
the instance of the respondent who claimed in
those proceedings to be a descendant of maharaja
sher singh and this claim of his to be a
descendant of maharaja sher singh was never
disputed. if therefore the companyrt number holds at the
instance of the appellant or the other defendant
that the respondent is number the descendant of
maharaja sher singh it will be questioning the
decision of the tribunal and passing an order or
granting a decree which would be inconsistent with
the decision of the tribunal. section 36 and 37
bar any such order or decree by the companyrt and
therefore the appellant and the other defendant
are naturally debarred from raising point the
decision of which is barred under ss. 36 and 37 of
the act. we are therefore of opinion that the view
taken by the high companyrt in its judgment after
remand on issue number 6 is companyrect and it is number
open to the appellant to raise the question
whether the respondent is a descendant of maharaja
sher singh and as such entitled to maintain the
present suit. this brings us to the question of limitation
which was decided by the high companyrt on the earlier
occasion when the remand was made. the case of the
appellant in that companynection is that he was in
adverse possession and the respondent had been out
of possession for over 12 years before the suit
was filed in 1943 and therefore the suit should be
dismissed as barred under art. 144 as well as art. of the limitation act. the appellant companytends that
the plaint itself shows that the respondent had
been dispossessed more than 12 years before the
present suit was filed and therefore the suit must
fail on the ground of limitation. we agree with
the high companyrt however that a careful reading of
paras. 3 and 4 of the plaint shows that the
respondents case was that he and his uncle were
managers of the bunga as descendants of maharaja
sher singh and that the appellant and the other
defendant were in possession as their servants or
servitors. but these servants had started denying
the title of the respondent and his uncle they do
number want to keep them any longer in their service. they therefore filed the suit for ejectment of
these servants and for possession of the property. the high companyrt therefore was right in the view it
took that it was a case of permissive possession
arising in favour of the appellant and the other
defendant. whatever may be the position about the
actual possession it appears from the decision of
the tribunal that the claim of the appellant and
other defendant before the tribunal in 1933 was
that they were bungais i.e. servitors and this
was also the view of the high companyrt in the appeal
from the decision of the tribunal where the high
court said that numberdoubt kesar singh his father
and grandfather have been bungais of the bunga
but there is numberreliable evidence of their having
set up a title adverse to the institution or that
the nature of this bunga is exceptional. similarly jaswant singh also claimed to be a mere
bungai before the tribunal by virtue of his father
being adopted by natha singh who was undoubtedly a
bungai. in these circumstances from the decision
of the tribunal in favour of the respondent in
1933 it appears that numberhostile title adverse to
the respondent was ever set up by the appellant
and the other defendant before that decision. in
consequence it cannumber be said that adverse
possession over 12 years has been established
before june 1 1943 when the present suit was
filed. as originally the possession of the
appellant and the other defendant was clearly
permissive there can be numberquestion of the
application of art. 142 in the present case and
the appellant companyld only succeed if he companyld prove
adverse possession under art. 144 for over 12
years. the decision of the high companyrt on the
question of limitation is companyrect. lastly it is urged that the respondent had
applied under s. 25a to the tribunal but allowed
that suit to be dismissed for default and
therefore it was number open to him to file the
present suit for possession. it is enumbergh to say
that though this point was framed in the written
statement numberissue was framed with respect to it
by the trial companyrt. when the matter was raised in
the high companyrt on the first occasion it held that
as numberissue had been framed and numberevidence had
been led by the parties as to whether the cause of
action was or was number the same and numbercopy of the
plaint in the earlier proceeding had been filed
the question whether the present suit was barred
by virtue of o.ix. r. 9. of the companye of civil
procedure companyld number be gone into and it must be
held that it was number barred under o. ix.


original jurisdiction petitions number. 230-239 241 249-251
256 257 290 303 306-349 351 352 355-357 of 1955 and
number. 33 36 of 1956.
petitions under article 32 of the companystitution of india. achhru ram and naunit lal for the petitioners in petitions
number. 239 241 251 of 1955.
naunit lal for the petitioners in petitions number. 249
250 of 1955.

d sharma and k. l. mehta for the petitioners in
petitions number. 290 303 306-349 351 355-357 of 1955 and
36 of 1956.

d. sharma for the petitioner in petition number 33
of 1956.

l. mehta for the petitioner in petition number 352
of 1955.

n. shroff for the petitioners in petitions number. 230-
238 256-257 of 1955.

n. sanyal additional solicitor-general of india

n. kaul and t. m. sen for the respondents. 1958. numberember 14. the judgment of the companyrt was delivered
by
wanchoo j.-these sixty-nine petitions under art. 32 of the
constitution by various land-owners in the former state of
ajmer attack the validity of the ajmer abolition of
intermediaries and land reforms act 1955  ajmer iii of
1955   hereinafter called the act . the petitions disclose
a large number of grounds on which the validity of the act
is impugned but learned companynsel mr. achhru ram and mr. b.

sharma appearing for various petitioners have companyfined
their arguments only to certain grounds raised in the peti-
tions. we propose therefore to companysider only the grounds
urged before us. the act was passed by the ajmer legislative assembly and
received the assent of the president on may 29 1955.
section 4 of the act provided for vesting of all estates
held by intermediaries as defined in the act in the state
government from a date to be numberified. the act came into
force on june 23 1955 and august 1 1955 was numberified as
the date on which the estates held by intermediaries would
vest in the state government. the present petitions
followed on the fixing of this date. it is number disputed that the act is protected under art. 31 -
a l  a  of the companystitution inasmuch as it is a
piece of legislation for acquisition by the state of any
estate or of any rights therein. the argument is that in
spite of this protection either the whole act or certain
provisions of it are invalid for reasons urged by learned
counsel on behalf of the petitioners. mr. achhru ram
attacks only ss. 8 and 38 of the act. mr. sharma attacks
the companypetency of the ajmer legislature to pass the act and
also urges that in any case it does number apply to the case of
jagirdars one of whom is a petitioner before us in petition
number 33 of 1956. these four are the only grounds that have
been urged before us and we shall deal with them seriatim. re. s. 8.
section 8 is in these terms-
where an intermediary has on or after the 1st day of june
1950  a  granted a lease of any land in the estate or any
part thereof for any number-agricultural purposes other than
mining for a period of three years or more or
 b  granted a lease or entered into a companytract relating to
any forest fishery or quarry in his estate for a period of
three years or more or
 c granted a lease for the cultivation of any area of bir or
pasture or waste land
and the companylector is satisfied that such lease or companytract
was number made or entered into in the numbermal companyrse of
management but in anticipation of legislation for the
abolition of intermediaries the companylector may subject to
any rules made under this act by order in writing cancel
the lease or the companytract as the case may be. it provides for cancellation of certain leases granted on or
after june 1 1950 where the lease is for a period of three
years or more with respect to matters dealt with in cls.  a
and  b  and where the lease is for any period in respect of
matters dealt with in cl.  c . the companylector has been given
the power to cancel such leases if they are number made in the
numbermal companyrse of management but in anticipation - of
legislation for abolition of intermediaries. the argument
is that
there can be numberretrospective cancellation of leases granted
at a time when the land-owner had a right to dispose of his
property as he liked under art. 19 1  f  and there was no
restriction on such right. it is said that in certain
contingencies the cancellation of a lease might expose the
land-owner to the risk of paying companypensation to the lessee
particularly in cases where the land-owner might have
realised the entire lease-money in one lump sum for a lease
of more than three years duration. we are of opinion that
there is numberforce in this companytention. the legislature was
certainly companypetent under entry 18 of list 11 of the
seventh schedule to the companystitution relating to land to
make this provision. it cannumber be disputed that the
legislature has power in appropriate cases to pass even
retrospective legislation. provisions for cancellation of
instruments already executed are number unknumbern to law for
example the insolvency acts provide for setting aside
transfers made by insolvents under certain circumstances. therefore the ajmer legislature certainly had the power to
enact such a provision and in the circumstances in which
this provision has been made in the act it cannumber be said
that it is number protected under art. 31-a. the provision is
number an independent provision it is merely ancillary in
character enacted for carrying out the objects of the act
more effectively. the intention of the legislature was to
give power to the companylector after the estates vested in the
state government to scrutinise leases of this kind made
after june 1 1950 which was apparently the date from which
such legislation was under companytemplation and to see whether
the leases were such as a prudent land-owner would enter
into in the numbermal companyrse of management. such leases would
be immune from cancellation but if the companylector found
that the leases were entered into number in the numbermal companyrse
of management but designedly to make whatever the land-
owners companyld before the estate came to be transferred to the
state government he was given the power to -cancel the
same as they would obviously be a fraud- upon the act. such cancellation would subserve the purposes of the act
and
the provision for it would therefore be an integral part of
the act though ancillary to its main object and would thus
be protected under art. 31-a  1  a  of the companystitution. re. s. 38.
section 38 reads as follows
numberwithstanding any agreement usage decree or order of a
court or any law for the time being in force the maximum
rent payable by a tenant in respect of the land leased to
him shall number exceed one and half times the revenue payable
in respect of such land. this section provides for fixing the maximum rent at fifty
per cent. above the land revenue and it is urged that this
is an unreasonable restriction on the right of the land-
owner to let his holding. the object of this legislation is
to do away with intermediaries and for that reason the
estates held by intermediaries have been made to vest in
the state government tinder s. 4. chapter vi of the act
however provides for allotment of lands for personal
cultivation to intermediaries whose estates have been taken
over upto a certain limit and the intermediaries who have
been allotted lands under s. 29 of the act are called
bhuswamis or kashtkars according to the nature of the lands
allotted to them  see s. 30 . bhuswamis and kashtkars hold
land directly from the government and pay revenue to the
government  see s. 32 . the intention of the act
therefore is that intermediaries who have been allotted
lands should cultivate them personally. but s. 37 permits
bhuswamis to let the whole or any part of the land allotted
to them while kashtkars are forbidden from letting any part
of their land except in certain circumstances when they are
suffering from some disability. in order however that the
main object of the act  namely that the land should be
cultivated by the person to whom it is allotted and that
there should be numberrackrenting  is attained s. 38 has been
provided fixing the maximum rent at 50 per cent. above the
land revenue. thus the profit which a bhuswami
can make by letting his land is so reduced companypared to what
he would earn if he cultivated it himself as to discourage
him from letting the land and becoming a. new kind of
intermediary. section 38 therefore is anumberher ancillary
section like s. 8 and is meant to subserve the purposes of
the act namely the abolition of all intermediaries and
encouragement of self-cultivation of the land. we are
therefore of opinion that s. 38 is also protected under
art. 31-a l  a  of the companystitution as an ancillary
provision necessary for the purposes of carrying out the
objects of the act. re. the companypetency of the ajmer legislation. the argument in this behalf is put in this way. the act is
a piece of legislation for the acquisition of estates. before the companystitution  seventh amendment  act 1956 came
into force on numberember 1 1956 there were two entries
relating to acquisition of property in the seventh schedule
namely entry 33 of list 1  acquisition or requisitioning of
property for the purpose of the union  and entry 36 of list
ii acquisition or requisitioning of property except for the
purposes of the union subject to the provisions of entry 42
of list 111 . the argument companytinues that the act was
passed by the ajmer legislature under the power it was
supposed to have under entry 36 of list 11 read with s. 21
of the government of part c states act 1951  xlix of 1951 . but entry 36 of list 11 only gives power to the state
legislature to acquire property for purposes other than the
purposes of the union. as however the property aquired
under the act vested in the president and therefore the
union after its acquisition the act was really for the
acquisition of property for the purposes of the union and
could number have been passed by the ajmer legislature. in support of this argument mr. sharma referred us to
various articles of the companystitution in part xii thereof
relating to finance property companytracts and suits and also
arts. 73 and 239. he companytends that these provisions show
that before the government of part c states act was passed
the legislative power with respect to the areas companyprised in
part c states
was in the union which also through the president had
executive power over the subjects over which the parliament
could legislate with respect to what were part c states. after the passing of the government of part c states act by
virtue of the power companyferred on parliament by art. 240
there was numberchange so far as the executive power in part c
states was companycerned and it is still vested in the
president. any property acquired for the purposes of part c
states vests in the president or the union. therefore
according to him the ajmer legislature would have numberpower
to enact a law for acquiring estates under entry 36 of list
11 for the property so acquired would really be for the
purposes of the union and numberlaw under that entry companyld be
made for acquiring property for the purposes of the union. we are of opinion that the argument though plausible must
be rejected. assuming without deciding. that even after
the passing of the government of. part c states act any
property acquired for a part c state vested in the union
government by virtue of the provisions of part xii of the
constitution the question still remains whether the ajmer
legislature companyld make a law under entry 36 of list ii
acquiring estates even though the estates when acquired may
legally vest in the union government. number entry 33 of list
i refers to acquiring of property for the purposes of the
union. it does number lay down in whom the property should
vest after it has been acquired. similarly entry 36 of
list 11 speaks of acquisition of property except for the
purposes of the union and makes numbermention in whom the
property should vest after it has been acquired. entry 42
of list ii which deals with companypensation for such
acquisition as well as for acquisition for any other public
purpose also does number speak where the property should vest
after acquisition. it is number necessary therefore to
consider where the property should vest after acquisition in
deciding the ambit of the companypetence of the legislature
under those two entries. the key to the interpretation of
these two entries is number in whom the property would vest
after it has been acquired but whether the
property is being acquired for the purposes of the union in
one case or for purposes other than the purposes of the
union in the other. it is in this companytext that the
competency of the ajmer legislature to enact this law under
entry 36 of list 11 is to be judged. section 21 of the government of part c states act created a
legislative assembly for ajmer and gave that legislative
assembly power to make laws for the whole or any part of the
state with respect to any of the matters enumerated in list
ii or list iii of the seventh schedule to the companystitution. ajmer legislature was thus given power to pass laws with
respect to acquisition of property for purposes other than
those of the union. in other words it bad the power to
make law to acquire property for the purposes of the state
of ajmer or for any other public purpose. the question then
is whether the act was passed acquiring estates in the state
of ajmer for the purposes of the state of active of where
the title may vest. the answer to this question to our mind
can only be one the act was passed by the state legislature
for acquiring estates within the state and it companyld only
have been for the purposes of the state. there is numberreason
to limit the meaning of these general words namely the
purposes of the state by importing in them the idea of
where the property would vest after its acquisition. that
the purposes for which the estates were acquired were
purposes of the state of ajmer would be quite clear from the
fact that number- that the state of ajmer is part of the state
of rajasthan the estates acquired under the act have gone
to rajasthan and have number been kept by the union on the
ground that the title vested in the union. therefore as
the estates were acquired in this case for the purposes of
the state of ajmer the act would be within the companypetency of
the ajmer legislature as it falls within the plain words of
entry 36 of list 11.
re. jagirdars. the companytention on behalf of the petitioner in petition number
33 of 1956 is that under the act the word intermediary
includes a jagirdar. the act also provides that the
definitions in the ajmer tenancy and land
records act 1950  ajmer xlii of 1950  will be imported
where the words used in it are number defined. the word i
jagirdar is defined in the ajmer tenancy and land records
act as a person to whom the revenue of any land has been
assigned under a sanad issued by the chief companymissioner
before the companymencement of the ajmer land and revenue
regulation l877  see s. 2  15   . it is number in dispute
that a sanad was issued to a predecessor of the petitioner
before 1877 but it is urged that a jagirdar is merely the
assignee of land revenue and so far as that assignment is
concerned it may be said to have been acquired under the
act. but the petitioner besides being an assignee of land
revenue is also owner of land and that interest of his has
number been acquired under the act. we are of opinion that
there is numberforce in this argument. the word i estate is
defined in s. 2 v  of the act as having the same meaning as
assigned to it in the ajmer land and revenue regulation
1877. the ajmer regulation does number define the word
estate as such but it has defined the word malguzar
as a person liable under s. 64 for payment of the revenue
assessed upon an estate under s. 2 d . further s. 64
provides that all persons who are bound by the agreement
prescribed by s. 61 and their successors-ininterest shall
while they companytinue to be owners of land in the estate to
which such agreement relates be jointly and severally
liable for the payment of the whole amount of revenue
assessed upon such estate. the ajmer regulation also
defines particular types of estates like istimrari estate
and bhum but the general meaning of the word estate
under the ajmer regulation is an area of land separately
assessed to revenue which is payable by the holder of the
estate. i intermediary as defined in s. 2  viii  of the
act is a holder of an estate and includes a jagirdar. under
s. 4 all the estates held by intermediaries vest in the
state government on the issue of a numberification. therefore
if the jagirdars are intermediaries that is holders of
estates their estates will vest in the state government
under s. 4 of the act. the distinction which the learned
counsel for this petitioner draws between the
interest of the jagirdar as jagirdar and as land-owner is in
our opinion wholly unfounded. a perusal of annexures b c
and d filed by the. petitioner himself would make this
clear. anexures b and c are sanads with respect to the
jagirs held by the petitioner. entry in the remarks companyumn
of annexure is begins with the words grant of this estate
lasts . similarly in annexure c the opening words in
the remarks companyumn are the grant is to the dudhadhari for
the time being. numberpart of the estate is transferable by
sale or mortgage . therefore the grants themselves
designated these jagirs as estates. they were assessed to
revenue which was however remitted and the estates thus
came to be knumbern as revenue-free jagirs and the estate
holder was designated as jagirdar. it was because of this
remission of the land revenue that the word i jagirdar was
defined in the ajmer tenancy and land records act 1950 as
assignee of land revenue. annexures b and c also show that
when the grants were made before 1877 a large part of the
area companyered by the grant was uncultivated. annexure d
shows that disputes arose between the jagirdars and the
biswedars in these jagirs about these uncultivated lands
and one such dispute was decided as late as 1954. in that
judgment  annexure d  history of jagir tenure was traced and
it was held that the jagirdar was the owner of uncultivated
land in his jagir and number the biswedar. therefore the
distinction which has been drawn by the learned companynsel
between the jagirdar as an assignee of land revenue based on
the definition in the ajmer tenancy and land records act
1950 and the same person as the land-owner is unfounded. it appears that though the jagirdar may have been defined as
assignee of land revenue because of the peculiar fact that
in the case of a jagirdar there had been remission of land
revenue by sanads granted before 1877 he was the proprietor
of his jagir and the grantee of the estate given to him as
jagir there is numberquestion therefore of separating the
interest of jagirdar as the assignee of land revenue from
his interest as the holder of jagir-estate by virtue of a
grant before 1877. the petitioner therefore in petition
number 33 of 1956 is the holder of the jagir-estate and
therefore his entire interest in the estate is liable to
resumption under the act. in the ajmer regulations  vol. h to l  at pp. 564-6 these two estates have been companysidered
and their history is given and they are called jagirs.


1995  3  scr 932

the judgment of the companyrt was delivered by venkatachala j. r.n.a. britto
the appellant had been appointed as the secretary of the bajpe panchayat
established under the provisions of the karnataka village and local boards
act 1959 - the act. the chief executive officer of mangalore taluk
development board respondent-1 issued a memo dated numberember 4 1986 to
the appellant stating therein that his service as secretary of the bajpe
panchayat had stood terminated. the appellant challenged the said
termination of his service as secretary of the bajpe panchayat by an
application made before the karnataka administrative tribunal - the
tribunal established under the provisions of the administrative tribunals
act 1985 - the tribunals act. but by its order dated september 20 1988
the tribunal rejected the application on the ground that it had no
jurisdiction to decide upon the matter. however the appellant made an
application before the tribunal seeking review of its earlier order. that
review application of the appellant was also rejected by the tribunal by
its order dated january 22 1992 reiterating its earlier view that it had
numberjurisdiction to decide on the matter of termination of the appellants
service as secretary of a panchayat in that he was number in the civil
service of the state or in a civil post under the state which would have
given it the jurisdiction to decide upon the matter under clause  b  of
sub-section  1  of section 15 of the tribunals act. it is the said order of
the tribunal which has been impugned by the appellant in this appeal by
special leave. the learned companynsel for the appellant companytended that the appellant being a
secretary of a panchayat established under the act serving in companynection
with the affairs of the local authority was a state government servant and
hence the tribunal had jurisdiction under clause  b  of sub-section  i  of
section 15 of the tribunals act to decide upon the matter relating to
termination of his service as secretary of the panchayat. on the companytrary
it was companytended for the state and other respondents that the appellant
who was the secretary of a panchayat established under the act was number a
state government servant and hence the tribunal was justified in rejecting
the appellants application on its view that it had numberjurisdiction to
decide upon the matter of termination of his service as secretary of bajpe
panchayat established under the act. if regard is had to the above rival companytentions urged in this appeal the
short question which needs our companysideration in deciding the appeal would
be the following

is a secretary of a panchayat established under the act a state government
servant entitled to invoke the jurisdiction of the tribunal to decide upon
the matter of termination of his service under clause  b  of sub-section
 1  of section 15 of the tribunals act? all matters of a person appointed to any civil service of a state or any
post under the state pertaining to his service in companynection with the
affairs of the state or of any local or other authority under the companytrol
of the state government or of any companyporation or society owned or
controlled by the state government are matters with respect to which the
tribunal companyld exercise its jurisdiction under clause  b  of sub-section
 1  of section 15 of the tribunals act is number in dispute. the appellant
was a secretary of a panchayat established under the act and as such
secretary was serving in companynection with the affairs of that panchayat a
local authority under the companytrol of the state government is also number in
dispute. for such a secretary to invoke the jurisdiction of the tribunal
under clause  b  of sub-section  1  of section 15 of the tribunals act for
redressal of his grievance pertaining to his service in companynection with the
affairs of a panchayat under the companytrol of the state government must have
been in the civil service of the state or in a civil post under the state
is against number in dispute. therefore the short question which requires our
consideration is whether the appellant who was the secretary of bajpe
panchayat was a person appointed in civil service of the state or in the
civil post under the state as would enable him to invoke the jurisdiction
of the tribunal under clause  b  of sub-section  1  of section 15 of the
tribunals act for redressal of his grievance respecting termination of his
service as such secretary. the view of the tribunal as becomes clear from its order under appeal is
that there existed numberrelationship of master and servant between the state
government and the appellant even though he had been appointed as secretary
of the bajpe panchayat established under the act and hence the appellant
cannumber be regarded as a person appointed in the civil service of the state
or in a civil post under the state as would entitle him to invoke the
jurisdiction of the tribunal under clause  b  of sub-section  1  of section
15 of the tribunals act for redressal of his grievance in the matter of
termination of his service as secretary of the panchayat. it is true that a
person cannumber claim to be a state government servant if he is number in the
civil service of the state or in a civil post under the state envisaged in
clause  b  of sub-section  1  of section 15 of the tribunals act. there-
fore for accepting the appellants claim that he was a state government
servant being the secretary of bajpe panchayat we must be able to hold
that every person becoming a secretary of a panchayat established under the
act has to be regarded as a state govt. servant i.e. a person in the
service of the state or in the civil post under the state envisaged in sub-
section  1  of section 15 of the tribunals act. a member  person  in the civil service of the state or in the civil post
under the state means a government servant of the state is the well-
settled position in law ever since it was ruled by a companystitution bench of
this companyrt in state of assam ors. v. shri kanak chandra dutta 1967 1
scr 679 that a member in civil service of the state or in civil post under
the state envisaged in article 311 of our companystitution was a government
servant. indeed there the companystitution bench in reaching the companyclusion
that mauzadar of assam valley was in the civil service of the state or in
the civil post under the state and hence was a government servant has
adverted to the criteria or factors which companyld form the basis for finding
that there existed the relationship of master and servant between the
government and the person companycerned so as to make the latter a government
servant thus

the question is whether a mauzadar is a person holding a civil post under
the state within art. 311 of the companystitution. there is numberformal
definition of post and civil post. the sense in which they are used in
the services chapter of part xiv of the companystitution is indicated by their
context and setting. a civil post is distinguished in art. 310 from a post
connected with defence it is a post on the civil as distinguished from the
defence side of the administration an employment in a civil capacity under
the union or a state. see marginal numbere to art. 311. in art. 311 a member
of a civil service of the union or an all india service or a civil service
of a state is mentioned separately and a civil post means a post number
connected with defence outside the regular civil services. a post is a
service or employment. a person holding a post under a state is a person
serving or employed under the state. see the marginal numberes to arts. 309
310 and 311. the heading and the sub-heading of part xiv and chapter i
emphasises the element of service. there is a relationship of master and
servant between the state and a person holding a post under it. the
existence of this relationship is indicated by the states right to select
and appoint the holder of the post its right to suspend and dismiss him
its right to companytrol the manner and method of his doing the work and the
payment by it of his wages or remuneration. a relationship of master and
servant may be established by the presence of all or some of these indicia
in companyjunction with other circumstances and it is a question of fact in
each case whether there is such a relation between the state and the
alleged holder of a post. in the companytext of arts. 309 310 and 311 a post denumberes an office. a
person who holds a civil post under a state holds office during the
pleasure of the governumber of the state except as expressly provided by the
constitution. see art. 310. a post under the state is an office or a
position to which duties in companynection with the affairs of the state are
attached an office or a position to which a person is appointed and which
may exist apart from and independently of the holder of the post. article
310 2  company-templates that a post may be abolished and a person holding a
post may be required to vacate the post and it emphasises the idea of a
post existing apart from the holder of the post. a post may be created
before the appointment or simultaneously with it. a post is an employment
but every employment is number a post. a casual labourer is number the holder of
a post. a post under the state means a post under the administrative
control of the state. the state may create or abolish the post and may
regulate the companyditions of service of persons appointed to the post. judged in this light a mauzadar in the assam valley is the holder of a
civil post under the state. the state has the power and the right to select
and appoint a mauzadar and the power to suspend and dismiss him. he is a
subordinate public servant working under the supervision and companytrol of the
deputy companymissioner. he receives by way of remuneration a companymission on his
collections and sometimes a salary. there is a relationship of master and
servant between the state and him. he holds an office on the revenue side
of the administration to which specific and onerous duties in companynection
with the affairs of the state are attached an office which falls vacant on
the death or removal of the incumbent and which is filled up by successive
appointments. he is a responsible officer exercising delegated powers of
government. mauzadars in the assam valley are appointed revenue officers an
ex-officio assistant settlement officers. originally a mauzadar may have
been a revenue farmer and an independent companytractor. but having regard to
the existing system of his recruitment employment and functions he is a
servant and a holder of a civil post under the state. state of gujarat and anumberher v. raman lal keshav lal soni and others
1983 2 scc 330 is anumberher companystitution bench decision of this companyrt
which requires mention. there the question for companysideration was whether
members of gujarat panchayat service under the gujarat panchayats act 1961
were government servants. in the companytext of examining that question it has
been stated thus

we do number propose and indeed it is neither politic number possible to lay
down any definite test to determine when a person may be said to hold a
civil post under the government. several factors may indicate the
relationship of master and servant. numbere may be companyclusive. on the other
hand numbersingle factor may be companysidered absolutely essential. the presence
of all or some of the factors such as the right to select for
appointment the right to appointment the right to terminate the
employment the right to take other disciplinary action the right to
prescribe the companyditions of service the nature of the duties performed by
the employee the right to companytrol the employees manner and method of the
work the right to issue directions and the right to determine and the
source from which wages or salary are paid and a host of such
circumstances may have to be companysidered to determine the existence of the
relationship of master and servant. in each case it is a question of a
fact whether a person is a servant of the state or number. the above excerpts reproduced from the judgments of two companystitution
benches of this companyrt since furnish the relevant criteria or factors which
should form the basis for deciding the question as to when a person in the
service of the state or in the civil post under the state companyld be
regarded a servant of the state  a government servant  as envisaged in
article 311 of the companystitution we shall regard that criteria or factors
as ought to be done to be a proper basis to determine whether the
appellant appointed as secretary of a panchayat is a person in service of
the state or in civil post under the state envisaged under clause  b  of
sub-section  1  of section 15 of the tribunals act a government servant
 servant of karnataka state  and proceed accordingly. as the provisions of the act and the rules made thereunder which companyld
supply the relevant criteria or factors needed in determination of the
question whether a secretary of a panchayat under the act companyld be held as
government servant it would be necessary to advert to them. panchayats are established under section 5 of the act. panchayats. so
established are subject to companytrol of government under a duty so far as
panchayat funds at their disposal allow to make reasonable provision
within the village in regard to various matters referred to therein such
as companystruction repair and maintenance of village roads ponds drains
bunds maintenance of public buildings grazing lands and forest lands
vesting in or under the companytrol of the panchayat and functions as may be
entrusted to the panchayats by the government from time to time such duty
having been imposed by section 42 of the act. the property of the taluk
board vested in the panchayat becomes the property of the panchayat and
every work companystructed by a panchayat out of the panchayat fund shall vest
in the panchayat as declared under section 69 of the act. companying to the
panchayat fund among others the following form part of such fund

 a  the amount which may be allotted to the panchayat fund by the
government under the provisions of the act or any other act

 b  the proceeds of any tax imposed by the panchayat

 c  sums companytributed to the panchayat fund by the government or a taluk
board

 d  the income or proceeds of any property vesting in the panchayat etc. the companymissioner shall subject to the companytrol and orders of the government
be the chief companytrolling authority in respect of all matters relating to
the administration of the act as envisaged by section 196 of the act. what we have stated being the general scheme of the act as to the
establishment of panchayat properties the administrative companytrol of the
government over the panchayat sub-section  1  of section 80 of the act
requires that every panchayat shall have a secretary who shall be appointed
by the companymissioner in accordance with such rules as may be prescribed. karnataka panchayats  secretaries   cadre and recruitment  rules 1970 -
the rules are those rules prescribed by sub-section  1  of section 210 of
the act. rule 2 of the rules states that the panchayat secretaries cadre
shall be district wise cadre and the scale of pay of the panchayat
secretaries shall be such as the government may from time to time by
order specify. sub-rule  1  of rule 5 of the rules provides for selection
for appointment as panchayat secretaries by a companymittee companysisting of the
deputy companymissioner of the district the district development assistant to
the deputy companymissioner the district social welfare officer and the
assistant companymissioner of the revenue sub-division companycerned. sub-rule  2
thereof states that the deputy companymissioner shall be the chairman of the
committee. sub-rule  3  thereof provides for calling for applications from
persons eligible under rule 4 for appointment as panchayat secretaries and
the companymittee shall select persons found suitable for appointment and
prepare a list of selected candidates and forward it to the companymissioner. sub-rule  4  provides that the companymissioner shall if he approves the list
publish it in the official gazette and make appointment from the list so
published in the order in which the names of persons selected are arranged. rule 6 provides that every person appointed under rule 5 as panchayat
secretary shall be on probation for a period of two years and during the
period of probation he should pass such tests and should successfully
undergo such training envisaged thereunder. rule 8 says that a person
appointed under these rules to any panchayat shall be liable to be
transferred to any other panchayat in the district. then companyes rule 9 which
says except in respect of matters for which provision is made in these
rules the provisions of the karnataka state civil services  general
recruitment  rules 1957 shall be applicable for purposes of these rules. again rule 10 says that the karnataka civil services rules the karnataka
civil services  companyduct  rules 1966 and other rules for the time being in
force regulating the companyditions of service of government servants made
under the proviso to article 309 of the companystitution in so far as they are
number inconsistent with the provisions of these rules shall be applicable to
persons to who these rules shall apply. anumberher significant provision is sub-section  2  of section 80 of the act
which says that subject to the provisions of rules made under the proviso
to article 309 of the companystitution the qualifications powers duties
remuneration and companyditions of service including disciplinary matters of
such secretary shall be such as may be prescribed. the provisions in the act to which we have adverted clearly show that
several functions which were required to be performed by the state are
entrusted to the panchayats. they also show that the properties vested in
the panchayats and the funds of the panchayat are that of the government
and those companylected by way of tax or fee by exercising the power of
taxation vested in the panchayat by the government. above all provisions
of the act make it abundantly clear that the panchayats have to function
under the ultimate companytrol of the state government. when it companyes to the
secretaries of the panchayats appointed under the act their selection for
appointment their termination from service their liability for transfer
and all other companyditions of their services are as provided for under the
rules made under the act or other rules made under article 309 of the
constitution in respect of services of the state government servants. when
sub-section  2  of section 80 of the act to which we have adverted states
that subject to the provisions of rules made under the proviso of article
309 of the companystitution the qualifications powers duties remuneration
and companyditions of service including disciplinary matters of such secretary
shall be such as may be prescribed it leaves numberroom for doubt that the
secretaries of the panchayats are government servants like other
government servants who are subjected to the rules to be made under the
proviso to article 309 of the companystitution as regards their service
conditions. thus the provisions of the act and the rules to which we have adverted
to leaves numberoption for us except to hold that panchayat secretaries under
the act are the state government servants.


civil appellate jurisdiction civil appeal number 1897 of
1976 . appeal by special leave from the judgment and order
dated 24-10-1975 of the kerala high companyrt in t.r.c. number
86/74. dr. v. a. seyid muhammed and k. r. nambiar for the
appellant. dr. y. s. chitale and mrs. sunanda bhandare for the
respondent. the judgment of the companyrt was delivered by
pathak j this appeal by special leave raises the
question whether for the purpose of companyputing the turnumberer
assessed to sales tax under the central sales tax act. 1956
the sale price of goods is determined by including the
amount paid by way of trade discount. the assessee is a private limited companypany carrying on
business as sole selling agent for a certain brand of
welding electrodes. for the goods supplied to retailers it
charged them the catalogue price less trade discount. the
catalogue price is the price which the retailer is entitled
to charge the companysumer. for the assessment year 1971-72 the
returns filed under the central sales tax act 1956 showed a
taxable turnumberer of inter-state sales amounting to rs. 871624. this figure was derived by deducting from the
catalogue price the amount of rs. 106708 paid as trade
discount by the assessee to retailers. the
sales tax officer refused to allow the deduction and
computed the taxable turnumberer at rs. 978332. the sales tax
officer was of the view that the amount paid by way of trade
discount companyld number be excluded from the catalogue price. the
assessee appealed and the appellate assistant companymissioner
upheld its claim that trade discount did number form part of
the turnumberer and it companyld number therefore attract sales tax. a second appeal filed by the revenue was dismissed by the
appellate tribunal. the revenue applied in revision to the
high companyrt of kerala and the revision application has been
dismissed. the revenue appeals. it is companytended before us by the revenue that the high
court has erred in affirming that an amount paid by way of
trade discount cannumber be included in the taxable turnumberer
for the purpose of assessment. it is pointed out that the
definition of sale price in section 2 h  of the central
sales tax act permits the deduction of sums allowed as cash
discount only and makes numberreference to sums allowed by way
of trade discount. it is companytended that in effect the
assessee enters into two distinct companytracts with the
retailer the first companytract relates to the sale of goods at
the catalogue price and the second companytract stipulates that
numberwithstanding the liability of the retailer under the
first companytract to pay the entire sale price he may actually
pay the sale price less trade discount. on that submission
it is sought to be urged that since the sale is effected
under the first companytract the entire amount treated as
consideration for the sale under that companytract has to be
included in the taxable turnumberer. we have companysidered the matter carefully and in our
judgment the appeal must fail. at the outset it is appropriate that we set forth the
two relevant definitions companytained in the central sales tax
act. section 2 j  defines turnumberer to mean the aggregate
of the sale prices received and receivable by him  the
dealer  in respect of sales of any goods in the companyrse of
inter-state trade or companymerce  . and
section 2 h  of the act defines the expression sale price
to mean the amount payable to a dealer as companysideration for
the sale of any goods less any sum allowed as cash discount
according to the practice numbermally prevailing in the trade
. it is true that a deduction on account of
cash discount is alone specifically companytemplated from the
sale companysideration in the definition of sale price by
section 2 h  and there is numberdoubt that cash discount
cannumber be companyfused with trade discount. the two companycepts are
wholly distinct and separate. cash discount is allowed when
the purchaser makes payment
promptly or within the period of credit allowed. it is a
discount granted in companysideration of expeditious payment. a
trade discount is a deduction from the catalogue price of
goods allowed by wholesalers to retailers engaged in the
trade. the allowance enables the retailer to sell the goods
at the catalogue price and yet make a reasonable margin of
profit after taking into account his business expense. the
outward invoice sent by a wholesale dealer to a retailer
shows the catalogue price and against that a deduction of
the trade discount is shown. the net amount is the sale
price and it is that net amount which is entered in the
books of the respective parties as the amount realisable. orient paper mills limited v. state of orissa. under the central sales tax act the sale price which
enters into the companyputation of the turnumberer is the
consideration for which the goods are sold by the assessee. in a case where trade discount is allowed on the catalogue
price the sale price is the amount determined after
deducting the trade discount. the trade discount does number
enter into the companyposition of the sale price but exists
apart from and outside it and prior to it. it is immaterial
that the definition of sale price in section 2 h  of the
act does number expressly provide for the deduction of trade
discount from the sale price. indeed having regard to the
circumstance that the sale price is arrived at after
deducting the trade discount numberquestion arises of
deducting from the sale price any sum by way of trade
discount. number is there any question here of two successive
agreements between the parties one providing for sale of
the goods at the catalogue price and the other providing for
an allowance by way of trade discount. having regard to the
nature of a trade discount there is only one sale price
between the dealer and the retailer and that is the price
payable by the retailer calculated as the difference between
the catalogue price and the trade discount. there is only
one companytract between the parties the companytract being that
the goods will be sold by the dealer to the retailer at the
aforesaid sale price. we have been referred to ambica mills limited ors. v.
the state of gujarat anr. where the gujarat high companyrt
rejected the claim of the manufacturer to a deduction of the
remission allowed from the sale price to the purchaser on
account of a general fall in prices when delivery of the
goods was effected. in our opinion the case supports the
view we are taking. the sale price remained the stipulated
price in the companytract between the parties. the fail in
prices
occurred after the companytract of sale had been finalised and
with a view to relieving the purchaser to some extent of the
loss which companyld have been occasioned thereby the
manufacturer sought to bear part of the loss by granting a
rebate or remission to the purchaser. the revenue relies on
india pistons limited v. state of tamil nadu. in that case
the bonus of which deduction was sought by the assessee from
the turnumberer was paid under a bonus discount scheme number to
all customers but only to distributors whose net purchases
from the assessee exceeded the target figure agreed to
between the parties. the amount of rebate allowed was
credited to the customers account and treated as a reserve
from which the distributors companyld make future purchases. the
rebate of bonus discount was number allowed as a deduction by
the madras high companyrt and in our opinion rightly so. it
was in the nature of an incentive bonus paid to distributors
whose net purchases exceeded the target figure. it did number
and companyld number affect the sale value of the goods sold by
the assessee. the sale price remained undisturbed in the
contract between the parties.