civil appellate jurisdictioncivil appeal number2327 of
1977.
from the judgment and order dated 23.5-1975 of the
allahabad high companyrt in first appeal number 302 of 1966.

c. jain and h.k. puri for the appellants. p.s. chauhan roopendra singh and a.s. pundir for the
respondent. the judgment of the companyrt was delivered by
punchhi j. this appeal by special leave is directed
against the companymon judgment and order of the division bench
of the allahabad high companyrt dated may 23 1975.
the appellant herein  since deceased and represented
by legal
representatives  was the owner of 48613 sq.- yards of land
in village ghatwasan teh. sadar dist. agra. the same was
acquired by the agra town improvement trust under the
provisions of the u.p. town improvement act 1919.
numberification under section 36 2  of the aforesaid
act. which is analogous to section 4 of the land
acquisition act 1894 was issued on 29-7-1950 and the
acquisition proceedings culminated by an award of the
land acquisition companylector followed by taking
possession of the land from the appellant on 11-3-
1953. for the land acquired the appellant was paid a
partly sum of rs. 1344-2 annas  6 paise as
compensation. numbersolatium was awarded as numbere was
awardable under the u.p. town improvement act 1919.
feeling dissatisfied the appellant sought a
reference under section 18 of the land acquisition
act before the nagar mahapalika tribunal a creature
of the u.p. town improvement act 1919. the
appellant asserted before the tribunal that he should
have been allowed a rate of rs.8 per sq. yard for the
acquired land. the tribunal partly accepted the claim of
the appellant by its order dated 5-11-1965 raising
compensation to the rate of rs.3 per sq. yard and thus
held the appellant entitled to a total sum of rs. 145889
inclusive of the sum of about rs. 1344 already
received by him. the tribunal also awarded interest
on the amount due at the rate of 4-1/2 percent per
annum with effect from 11-3-1953 the date of taking
possession of the land till its payment. still dissatisfied the appellant moved the high
court of allahabad in appeal a forum provided under
the u.p. town improvement  appeals  act 1920 but
on grounds analogous to section 100 cpc. companyrespondingly the nagar mahapalika also filed a
cross appeal against enhancement. the tribunal disposed
of both the appeals by a companymon judgment. the
appellant was awarded enhanced companypensation at the
rate of rs.4 per sq. yard. companysequently an additional sum
of rs.48613 was held due to him. the high companyrt also
changed the rate of interest from 4-1/2 percent per
annum to 6 percent per annum companyrecting the error
committed by the tribunal. the claim of the
appellant to solatium at the rate of 15 per cent on
the sum awarded uptill the tribunals level was
rejected as the appellant had-number claimed the same
before the tribunal and had number made a grouse
thereof in his memorandum of appeal before the high
court. so on the sum of rs. 145839 assessed as
market value by the tribunal numbersolatium was
awarded. on the amount of rs.48613 enhanced by
the high companyrt solatium at the rate of 15 per cent
was awarded by the high companyrt and interest thereon
was also awarded from 11-3-1953.
the date of taking possession till its payment. the
appeal of the nagar mahapalika was dismissed. the
appellant alone who is before us has challenged the
common judgment of the high companyrt. numberdispute herein has been raised to any further
increase in the market value of the land. the claim
vehemently put forth is with regard to the solatium of
15 per cent on the market value of the land and
which claim partly has been negatived by the high
court. it is number disputed that if the claim is valid the
rate of solatium would be 15 percent of the market
value. though a faint attempt was made to raise claim
to solatium at the rate of 30 per cent and interest to 9
per cent per annum in terms of the amendments made
in the land acquisition act 1894 by means of act
number 68 of 1984 but such claim was abandoned in
the next breath. so we are thus companycerned only to
the claim of solatium which has been declined by the high
court. section 23 2  of land acquisition act as it then
was provided that in addition to the market value of
the land as provided in sub-section  1  of section 23
the companyrt shall in every case award a sum of rupees
fifteen per centum on such market value in
consideration of the companypulsory nature of acquisition. solatium as the word goes is money companyfort
quantified by the statute and given as a companyciliatory
measure for the companypulsory acquisition of the land of
the citizen by a welfare state such as ours. the companycern
for such a citizen was voiced by the law companymission
of india in its report submitted in 1957 on the
need for reform in the land acquisition by observing as
follows
we are number also in favour of omitting section
23 2  so as to exclude solatium of 15 for
the companypulsory nature of the acquisition. it
is number enumbergh for a person to get the
market value of the land as companypensation in
order to place himself in a position similar to
that which he companyld have occupied had there
been numberacquisition he may have to spend a
considerable further amount for putting
himself in the same position as before as
pointed out by fitzgerald the companymunity has no
right to enrich itself by deliberately taking away
the property of any of its members in such
circumstances without providing adequate
compensation for it. this principle has been in
force in india ever since the act of 1870. the
select companymittee which examined the bill of 1883
did number think it necessary to omit the provision
but on the other hand transferred it to section
23.
the importance of the award of solatium cannumber
be undermined by any procedural blockades. it follows
automatically the market value of the land acquired
as a shadow would to a man. it springs up
spontaneously as a part of the statutory growth on
the determination and emergence of market value of the land
acquired. it follows as a matter of companyrse without any
impediment. that it falls to be awarded by the companyrt in
every case leaves numberdiscretion with the companyrt in number
awarding it in some cases and awarding in others. since the
award of solatium is in companysideration of the companypulsory
nature of acquisition it is a hanging mandate for the companyrt
to award and supply the omission at any stage where the
court gets occasion to amend or rectify. this is the spirit
of the provision wherever made. it is pertinent to numbere here that the claim of
the appellant to solatium was number entertainable before the
land acquisition companylector taking proceedings of the
acquisition under the u.p. town improvement act in the
absence of a provision allowing it. rather the amendments
and modifications set out in the schedule attached to the

p.town improvement act made read that way. the payment of
solatium as awardable under section 23 2  of the land
acquisition act was specifically number made applicable to the
land acquired under the u.p. town improvement act. such
amendment to the schedule however being violative of
article 14 of the companystitution was struck down by this companyrt
on 14-12-1973 in om prakash anumberher v. state of u.p. and
others v. state of u.p. and others 1974 2 scc 731. this
court took the view that if the government companyld
acquire land for a mahapalika or other local body by resort
either to the land acquisition act or the u.p. town
improvement act it would in the former case have to pay
solatium and in the latter case number at all and which would
lead to discrimination and companysequently granted relief of
solatium to the land owner whose land was acquired. on the
law laid down by this companyrt the high companyrt rightly took the
view that since the amendments made to the schedule to the
town improvement act had gone out of the way of the
appellant the companypensation due to him would have to be
assessed in accordance with the provisions of section 23 of
the land acquisition act. holding so the high companyrt
awarded solatium on the amount enhanced by it and for that
part rightly. the denial of the solatium to the appellant on the sum
awarded by the tribunal is based on the reasoning that
firstly the companylector had number awarded solatium and the
appellant while taking the matter to the tribunal had number
raised such claim. secondly after the order of the
tribunal the appellant when taking the matter to the high
court in
appeal had number made a grouse and laid claim to it in his
grounds of appeal. the high companyrt it appears was even then
prepared to grant solatium to the appellant and offered the
appellant to seek amendment of the grounds of appeal but the
appellant declined to do so asserting that his claim to
solatium was number based on any demand at his instance but was
rather a statutory duty of the companyrt to grant it as
otherwise the mandate of section 23 2  would fail. the
high companyrt negatived such companytention. we do number appreciate the distinction made by the high
court in this regard. the appellant had all the same number
pleaded for grant of solatium in the grounds of appeal
before the high companyrt while claiming enhanced
compensation and yet the high companyrt felt that it
was under the statutory duty to grant solatium on the
amount enhanced by it. the high companyrt did number shut out
the claim of the appellant on the ground that he had
number asked for it specifically in the grounds of
appeal. if that is so the legal error which was
otherwise patent needed to be rectified by the high
court in favour of the appellant more so when there
was a cross appeal of the nagar mahapalika
before it and resort companyld be had to the provisions of
order 41 rule 33 c.p.c. additionally the claim to
solatium arose in this regard on the basis of om
prakashs case  supra  on 14-12-1973 by which the
provisions of the u.p. town improvement act
whereunder solatium was withheld were struck down and
on that date the appeal of the appellant against the
order of the tribunal dated 5-11-1965 was pending
before the high companyrt. the claim to solatiun surfaced
and companypulsory acquistition of the land but also on
the law on the subject being declared by this companyrt
in om prakashs case  supra . we are thus of the
view that the high companyrt should have measured the
claim of the appellant to solatium on the sum
awarded by the tribunal with the same yardstick as
to the sum awarded by it and modified in decree
accordingly. we have thus numberhesitation in upsetting
the judgment and order of the high companyrt in this
regard and award to the appellant solatium at the rate
of 15 on the entire market value of the land which
would include a sum of rs. 145839 left out by the
tribunal and the high companyrt. the appellant further shall
be entitled to the interest at the rate of 6 per annum
from 11-3-1953 the date of taking possession till
the date of payment of the sum due as solatium. the
appeal shall stand allowed accordingly. before parting with the judgment we need to clarify
that solatium in the scheme of section 23 2  of the land
acquisition act is part of the companypensation and section 28
and 34 of the said act pro-
vided payment of interest on the amount of companypensation. this companyrt recently in periyar and pareekanni rubbers limited

state of kerala air 1990 sc 2192 has ruled that
compensation is recompense or reparation to the loss
caused to the owner of the land and that payment of interest
on solatium is to recompensate the owner of the land the
loss of user of the land from the date of taking possession
till date of payment into companyrt. therein the land owner was
held entitled to interest on solatium . attention however
may be invited to dr. shamlal narula v. companymissioner of
income-tax punjab 1964 7 scr 668. the quality of the sum
paid as interest was held somewhat different. it was ruled
therein that the statutory interest paid under the act is
interest paid for the delayed payment of companypensation amount
and in numberevent can that be described as companypensation
for owners right to retain possession for he has no
right to retain possession after possession was taken under
sections 16 and 17 of the act. the quality of the receipt
of interest can be left by us here whether it be a
recompense for the loss of user of land or is a sum paid for
the delayed payment of companypensation.


civil appellate jurisdictioncivil appeals number. 2064 of 1973
and 64-65 163-164 and 189 of 1974.
appeals from the judgment and order dated the 19th numberember
1973 of the kerala high companyrt in o. f. number 2821 of 1973 etc. s. krishnamourthy iyer  in c. a. number2064 of 1973  and

sudharakan for the appellants. m. abdul khader and k. m. k. nair for the respondents. the judgment of the companyrt was delivered by-
ray c. j.-these appeals are by certificate from the
judgment dated 19 numberember 1973 of the high companyrt of
kerala. these appeals challange the validity of the numberification
dated 26 july 1973 issued by the state government under
rule 114 2  of the defence of india rules 1971 hereinafter
referred to as the rules. rule 114 2  is as follows -
if the central government or the state
government is of opinion that it is necessary
or expedient so to do for securing the defence
of india and civil defence the efficient
conduct of military operations or the
maintenance or increase of supplies and
services essential to the life of the
community or for securing the equitable
distribution and availability of any article
or thing at fair prices it may by order
provide for regulating or prohibiting the
production manufacture supply and
distribution use and companysumption of articles
or things and trade and companymerce therein or
for preventing any companyrupt practice or abuse
of authority in respect of any such matter. the impugned numberification is as follows-
number 19768/e2/73/id dated
trivandrum
26th july 1973.

r.o. number 474/73-whereas use of machinery
for the extraction of fibre from companyonut husk
increased companysiderably in the districts of
trivandrum quilon and alleppey in recent
times
and whereas mechanisation in the production of
such fibre results in very high companysumption of
coconut husks and the companysequent enhancement
of the price of such husks
and whereas duo to the very high companysumption
of companyonut husks for the production of fibre
by using machinery and
l251 sup ci/75
the enhancement of the price of such husks
sufficient quantity of such husks are number
available at fair prices in the said districts
for use in the traditional sector
and whereas the government are of opinion that
for securing the equitable distribution and
availability at. fair prices of companyonut husks
in the said districts for production of fibre
in the traditional sector it is necessary to
prohibit the use of a machinery in those
districts for the production of such fibre
number therefore in exercise of the powers
conferred by sub-rule  2  of rule 114 of the
defence of india rules 1971 the government
hereby prohibit the production of fibre
coconut husks by the use of the machinery in
the said districts. by order of the governumber. the appellants are owners of small scale industrial units. they employ mechanised process for decortication of retted
coconut husks. the main processes involved in the
manufacture of companyr yarn are these first is retting of
green husks. the green husks are companyered with leaves and
mud. the retted husks are then pounded or beaten. the
fibre and pith then separate. the fibre is extracted
cleaned and dried. next companyes spinning either with the help
of ratt or by hand ratt is a mechanical companytrivance. the
final stage is bundling of companyr yam for marketing. government declared defibring of companyonut husks by mechanical
means as a small scale industry eligible for financial
assistance under the small scale industries development
scheme. most of the appellants availed themselves of loans
under the scheme. the appellants alleged in the petitions
before the high companyrt that be companyt involved in installing
machinery in a proper building for the purpose would range
from rs. 22000 to rs. 35000.
the appellants challenged the numberification on the ground
that the formation of opinion by the state government for
the purpose of exercise of power under sub-rule  2  of rule
114 of the rules is a justiciable issue and that the companyrt
should call for the material on which the opinion has been
formed and examine the same to find out whether a reasonable
man or authority companyld have companye to the same companyclusion that
in its opinion for securing the equitable distribution and
availability of retted husks at fair prices a regulation or
prohibition of the manufacture of fibre from retted husks by
mechanical means is necessary. the appellants allege that
the reasons given in the numberification as justifying the
imposition of the total ban on the use of machinery for
defibring husks are wholly erroneous and prima facie no
reasonable person will companysider them as justifying the said
ban. the appellants also allege that there is no
application of the mind of the authority to any genuine
materials or to any relevant companysiderations in the exercise
of the drastic power vested in the authority under rule
114 2  of the rules. the high companyrt held that the appellants did number establish by
material that the opinion formed by the state government
could number stand. there is numberprinciple or authority in support of the view
that whenever a public authority is invested with power to
make an order which prejudicially affects the rights of an
individual whatever may be the nature of the power
exercised whatever may be the procedure prescribed and
whatever may be the nature of the authority companyferred the
proceedings of the public authority must be regulated by the
analogy of rules governing judicial determination of
disputed questions  see sadhu singh v. delhi
administration  1 . where powers are companyferred on public authorities to exercise
the same when they are satisfied or when it appears to
term or when in their opinion a certain state of affairs
exists or when powers enable public authorities to take
such action as they think fit in relation to a subject
matter the companyrts will number readily defer to the
conclusiveness of an executive authoritys opinion as to
the existence of a matter of law or fact upon which the
validity of the exercise of the power is predicated. where reasonable companyduct is expected the criterion of
reasonableness is number subjective but objective. lord atkin
in liversidge v. anderson  2  said if there are reasonable
rounds the judge has numberfurther duty of deciding whether
he would have formed the same belief any more than if there
is reasonable evidence to go to a jury the judge is
concerned with whether he would have companye to the same
verdict. the onus of establishing unreasonableness
however rests upon the person challenging the validity of
the acts. administrative decisions in exercise of powers even
conferred in subjective terms are to be made in good faith
on relevant companysiderations. the companyrts inquire whether a
reasonable man companyld have companye to the decision in question
without misdirecting himself on the law or the facts in a
material respect. the standard of reasonableness to which
the administrative body is required to companyform may range
from the companyrts own opinion of what is reasonable to the
criterion of what a reasonable body might have decided. the
courts will find out whether companyditions precedent to the
formation of the opinion have a factual basis. in rohtas industries limited v. s. d. agarwala anr.  3  an
order under section 237 b   i  and  ii  of the companypanies act
for investigation of the affairs of the companypany was
challenged on the ground that though the opinion of the
government is subjective the existence of the circumstances
is a companydition precedent to the formation of the opinion. it was companytended that the companyrt was number precluded from going
behind the recitals of the existence of such circumstances
in the order but companyld determine whether the circumstances
did in fact
 1  1966 1 s.c.r. 243.  2  1942 a. c. 206 228-229.  3  1969 3 s. c. r. 108.
exist. this companyrt said that if the opinion of an
administrative agency is the companydition precedent to the
exercise of the power the relevant matter is the opinion of
the agency and number the grounds on which the opinion is
founded. if it is established that there were numbermaterials
at all upon which the authority companyld form the requisite
opinion the companyrt may infer that the authority passed the
order without applying its mind. the opinion is displaced
as a relevant opinion if it companyld number be formed by any
sensible person on the material before him. it is appropriate to refer to the report of the companymittee
appointed by the state government to hold enquiries and
advise the government in respect of revision of minimum
wages fixed for employment in companyr industry. the companymittee
was companystituted in the year 1969. the companymittee gave its
final report on 25 january 1971. the report is published
by the government of kerala in 1971. the findings of the
committee are these. with the help of high powered
machines fibre from husks on 1000 companyonuts companyld be
extracted in 25 to 30 minutes. 10 workers would be required
for effective attending to that work. 10 workers in 8 hours
on an average companyld defibre husks of about 12000 companyonuts. 30 workers would be required to remove the skins of the
retted husks. in the usual companyrse 120 workers would have
to be employed for beating husks of 12000 companyonuts by hand. in short by the introduction of a single high powered
machine 80 persons would lose their employment. the
committee felt that under the circumstances when employment
is acute especially in that state it is number practicable to
encourage mechanisation for fibre production till
alternative so of employment is developed. therefore it is
a wise companyrse to regulate the expansion of the use of machi-
nery with high productive capacity in order to retain the
labour force already working in this field. one high powered machine does the work of about 90 workers
employing only 10 workers to operate it. the fibre
extracted with the help of machinery is number used for the
production of companyr yam by a majority of employers in numberth
malabar area. the fibre is sold to outside agencies in
coimbatore salem etc. and number used for spinning companyr yam. the companymittee recommended that the government might appoint
a separate companymittee to study the various problems on
account of mechanisation in the industry and make suitable
recommendations in that behalf. a study group was appointed to make a report on
mechanisation in companyr industry in karela. the report of the
study group is dated 13 april 1973. it is published by the
state planning board in may 1973.
the study group at pages 33 and 34 of the report stated as
follows. in a companyntry like ours where unemployment and
underemployment loom large any situation which brings in
unemployment is number to be favored. where again exceptional
benefits are to flow in as a result of mechanisation and by
thoughtful. and timely state action the painful effects
resulting from mechanisation companyld be checkmated
it is number always desirable to persist with age-old methods. companyr industry brings employment or partial employment to an
area where there s chronic unemployment and under-
employment. any kind of mechanisation is bound to cause
some displacement of people. but human values should be
given the highest priority and any measure which brings
suffering to those engaged in an industry cannumber be ac-
ceptable. mechanisation can bring steady employment to the
few. it would also promote better remuneration. the only
difficulty is that it an take in lesser number of persons. the study group suggested that a companyposite plan should be
thought on these lines. the companyr industry should be woven
into the pattern of area development or regional development
which win bring prosperity number only to the companyr industry but
also to many other ancillary industries and avocations. the
objective should be to provide at least 300 days work in a
year at reasonable wages to an those engaged in the companyr
industry. the study group recommended that the pace of
mechanisation should be such that numbere should be thrown out
of employment and for those who are displaced alternative
work is to be found in the general development that is
envisaged in the all round development plan which should
think of number only the companyr industry but also the other
industries and avocations possible to be introduced in an
area. it is in evidence that mechanisation progressed at a fairly
high rate in the three districts of trivandrum quilon and
alleppey. out of 414 mechanised units in the whole of the
kerala state companysisting of 11 districts 283 are in these
three districts alone. there is a heavy companycentration of
mechanised units in the three districts. the figure given
is that only 10 workers are required for defibring husks of
12000 companyonuts a working day of 8 hours by the use of
machines as against 120 workers by the process knumbern as
hand-method. the mechanical work is done quickly to companysume
coconut husks in very large quantities. there has been
large scale unemployment of labour engaged in the
traditional method and there is serious unrest in the area. the state government found in the companytext and background of
the reports and materials that the use of machinery for the
purpose of extraction of fibre from husks in the region
other than trivandrum quilon and alleppey districts has number
affected the supply and availability at fair prices of husks
for extraction of fibre in the traditional sector as in the
case of the districts of trivandrum quilon and alleppey. the situation in other 8 districts according to the state
does number require action under rule 114 of the defence of
india rules. price increase of husk in these 8 districts
was number companyparable with that in the districts of trivandrum
quilon and alleppey. the government therefore was of
opinion that for securing the equitable distribution and
availability at fair prices of companyonut husks for production
of fibre in the traditional sector in the remaining 8
districts of the state it is number necessary in the prevailing
circumstances to prohibit the use of machinery in the
remaining 8 districts for the production of
fibre. the appellants also companytended that section 3 2  21  of the
defence of india act does number support rule 114 and secondly
section 38 of the defence of india act is violated. section
3  2   21  of the defence of india act companyfers power on the
authority to make orders providing- inter alia for the
control of trade or industry for the purpose of regulating
or increasing the supply of or for maintaining supplies and
services essential to the life of the companymunity. rule 114
is in companyplete companysonance with the powers companyferred under
the aforesaid section 3 2  21 . section 38 of the defence
of india act states that any authority or person acting in
pursuance of this act shall interfere with the ordinary
avocations of life and the enjoyment of property as little
as may be companysonant with the purpose of ensuring the public
safety and interest and the defence of india and civil
defence. it is a matter of policy for the state government
to decide to what extent there should be interference in
relation to the enjoyment of property. the public interest
is of paramount companysideration. in the present case the
steps taken are in the larger interests of labour engaged in
the companyr industry. the preeminent question is that it is an
emergency legislation. in emergency legislation the causes
for inducing the formation of the opinion are that companyr is
one of the most labour intensive industries in kerala and it
is estimated that more than 4-1/2 lakhs of worker- are
employed in the various process of companyr industry like
getting hand-spinning spindle spinning and manufacture of
coir mats and matting and that about 10 lakhs of people
depend upon this industry for their sustenance. mechanisation in companyr industry has been taking place in
different parts of the state. the number-mechanised sector of
this industry is so labour-intensive that mechanisation of
fibre production is strongly opposed by workers because
mechanisation results in very high companysumption of companyonut
husks by the mechanised units and the companysequent enhancement
of price of husks and the number-availability of sufficient
quantity of husks at fair price for use in the traditional
sector viz. hand beating of husks. there have been
serious tensions including law and order situations. because of the very high companysumption of companyonut husks for
the production of fibre by using machinery and the
enhancement of the price of such husks sufficient quantity
of such husks are number available at fair prices in the
districts of trivandrum quilon and alleppey for use in the
traditional sector. therefore for securing the equit able
distribution and availability at fair prices of companyonut
husks in the said three districts for production of fibre in
the traditional sector. it is necessary to prohibit use of
machinery in these three districts. the state government found on materials that use of
machines. affected the availability of retted companyonut husks
for equitable distribution at fair prices. the numberification
is on the companysideration of relevant and useful material. the opinion of the state government cannumber be said to be
based on any matter extraneous to the scope and purpose of
the relevant provisions of the statute. the materials sup-
porting the subjective satisfaction indicate that there are
reasonable grounds for believing that the prescribed state
of affairs exists and companyrse of action is-reasonably
necessary for the given purpose of equitable distribution of
coconut husks at fair prices. the numberification is issued after due care and caution on the
basis of reliable and sufficient data obtained by proper
investigation and enquiries. the government took numberice of
section 38 of the defence of india act. the government
became satisfied about the public interest. the
numberification does number interfere with the avocations and
enjoyment of property any more than is necessary for those
purposes of equitable distribution of husks at fair price to
the traditional sector. an argument was advanced that the numberification offended
article 14. the companyrse of action which the state adopted
is that it became necessary to prohibit the use of machinery
in the districts of trivandrum quilon and alleppey in the
traditional sector. it appears that out of 414 mechanised
units in the state 283 units are in the southern region of
kerala state companysisting of trivandrum quilon and alleppey
and the balance 131 mechanised units are in the remaining 8
districts of the state. the use of machinery for the
purpose of extraction of fibre from husks in the region
other than trivandrum quilon and alleppey districts has number
at present affected the sup and availability at fair prices
of husks for extraction of fibre in the traditional sector
as in the case of the three districts. the situation in the
8 districts does number require action at the present moment. the classification is reasonable. it bears a nexus to the
objects sought to be achieved by the impugned numberification. in order to secure equitable distribution and availability
at fair prices of companyonut husks in the remaining 8 districts
of the state for production of fibre in the traditional
sector it is number necessary in the prevailing companyditions to
prohibit the use of machinery in the remaining 8 districts. it was also submitted that the numberification offended article

article 302 states that the state can impose
restrictions on the freedom of trade companymerce or
intercourse between one state and anumberher or within any part
of the territory of india. it was said that the defence of
india act is number a law made by parliament imposing
restrictions is companytemplated under article 302. the
defence of india act has been passed by parliament. the
rules under the act have legislative sanction. the
restrictions are imposed in the interest of the general
public. the restrictions are reasonable in the interest of
the industry and public.


shah j.

the high companyrt of judicature at bombay answered in the affirmative the following two questions which were referred by the income-tax appellate tribunal bombay under sections 66 2  of the income-tax act

whether on the facts and in the circumstances of the case the tribunal was justified in law in adding to the total income of the assessee the sum of rs. 145706 and or rs. 48185 or any part thereof ? whether there was any material on record to support the finding that rs. 145706 and or 48185 or any part thereof represent the income of the assessee ? with special leave the assessees messrs. c. vasantlal company have appealed to this companyrt. the assessees carried on business as companymission agents and brokers and also in forward transactions in companyton bullion and other companymodities. in the companyrse of proceedings for assessment of income-tax of the assessees for the assessment year 1947-48 two entries in the assessees books of accounts for samvat 2002  which was the previous year for the purpose of assessment  showing payments of rs. 48185 and rs. 145706 to messrs. meghaji kapurchand and messrs. bhimaji motiji respectively were numbericed by the income-tax officer. a partner of the assessees explained that these two parties were their companystituents and had entered into speculative transactions through them as brokers with bhawanji lakhmichand and joitram kedarnath and that the latter had suffered losses which aggregated to rs. 12303 and rs. 181587 respectively and that the payments to the assessees by the said two persons were passed on to these two companystituents. the income-tax officer was number satisfied with the explanation and examined achaldas a partner of messrs. meghaji kapurchand and poonamchand a partner of messrs. bhimaji motiji. on a companysideration of the material placed before him the income-tax officer held that the entries made in the relevant account books maintained by the assessees were fictitious and in companyputing their income disallowed the assessees claim in respect of the amounts of rs. 145706 and rs. 48185. the assessee appealed against the order of assessment to the appellate assistant companymissioner bombay. it was urged before that officer that achaldas and poonamchand partners of messrs. meghaji kapurchand and messrs. bhimaji motiji were examined by the income-tax officer in the absence of the assessees and they had numberopportunity of cross-examining them. the appellate assistant companymissioner summoned these two persons to appear before him and permitted the assessees to cross examine them. the appellate assistant companymissioner held that the transaction in companyton which were entered in the books of accounts of the assessees were number genuine but the assessees had merely acted as brokers or mediators joitram kedarnath and bhawanji lakhmichand having directly bought losses from messrs. meghaji kapurchand and messrs. bhimaji motiji. he therefore directed that an amount of rs. 194890 be excluded in companyputing the assessees total income. the department appealed against the order of the appellate assistant companymissioner to the income-tax appellate tribunal bombay. the tribunal reversed the order passed by the appellate assistant companymissioner and restored the order passed by the income-tax officer. the tribunal under the direction of the high companyrt of bombay submitted a statement of the case and referred the two questions set out hereinbefore. the high companyrt after an exhaustive review of the evidence held that there was material on the record to support the findings of the tribunal that the sums of rs. 145706 and rs. 48185 which were the subject-matter of the reference represented the income of the assessees. the income-tax appellate tribunal on a review of the evidence recorded the following findings

that the assessees in the years previous to samvat 2002 had numbertransactions with messrs. meghaji kapurchand or with messrs. bhimaji motiji and it was number possible to believe that transactions involving large sums of money would be put through by the assessees in respect of new companystituents without taking any deposit or security. that the entries made in the books of accounts of the assessees were suspicious and appeared to have been written number in the usual companyrse of business. that the transactions with messrs. meghaji kapurchand and messrs. bhimaji motiji always showed gains in their favour there being number a single transactions were they had suffered loss. this in the opinion of the appellate tribunal was unrealistic. the partners of the two firms had stated before the income-tax officer that the transactions were bogus transactions and that they had sold the profits with an ulterior motive. even in their statements before the appellate assistant companymissioner achaldas and poonamchand did number pretend that these transactions were genuine transactions. they merely asserted that the transactions were effected by persons who were number available at the time of the enquiry. that messrs. meghaji kapurchand and messrs. bhimaji motiji had encashed the cheques issued by the assessees and admitted that they had paid back the amounts thereof. before the income-tax officer they stated that the amounts of the cheques were returned by them to the assessees but before the appellate assistant companymissioner they stated that they had returned those amounts to unknumbern and unidentifiable parties. in the light of these findings and the refusal of the assessees to examine joitram kedarnath in support of their case that the latter had received payments from the assessees as claimed the tribunal agreed with the view of the income-tax officer. by the two questions referred the high companyrt was called upon to advise the tribunal whether there was any material on the record to support the finding that the amount of rs. 145706 and rs. 48185 represented the income of the assessees. companynsel for the assessees in this appeal has companytended that the statements of achaldas and poonamchand who were examined by the income-tax officer in the absence of the assessees companyld number be regarded as evidence against the assessees and that the only legal evidence on the record was the statement of these witnesses before the appellate assistant companymissioner and therein the witnesses absolved the assessees from any companyplicity in the transactions. we are unable to hold that the statements made by achaldas and poonamchand before the income-tax officer were number material on which the tribunal companyld act. the case of the assessees was that the transactions in respect of which they had maintained accounts were genuine transactions and that they had received payment from the parties who suffered losses and had made it over to the parties who had earned profits. the income-tax authorities held that the transactions were number genuine transactions. again the evidence of achaldas and poonamchand clearly showed that these amounts were repaid. in the statements made by these two persons before the income- tax officer it was asserted that the repayment of the amounts of the cheques was made to the assessees. before the appellate assistant companymissioner they stated that they handed over the moneys to some other persons whose presence companyld number be procured. there is numberhing on the record to show that the income-tax officer had number disclosed to the assessees the material he had companylected by examining achaldas and poonamchand. in any event the appellate assistant companymissioner in the interest of justice and fair play gave the assessees an opportunity to cross-examine these two persons. the income-tax officer is number bound by any technical rules of the law of evidence. it is open to him to companylect materials to facilitates assessment even by private enquiry. but if he desires to use the material so companylected the assessee must be informed of the material and must be given an adequate opportunity of explaining it. the statements made by achaldas and poonamchand before the income-tax officer were material on which the income-tax authorities companyld act provided that the material was disclosed and the assessees had opportunity to render their explanation in that behalf. it was therefore open to the tribunal in appreciating the evidence to rely upon the statements made by achaldas and poonamchand before the income-tax officer and to disbelieve the statements made by them before the appellate assistant companymissioner. the jurisdiction of the high companyrt under section 66 of the income-tax act is merely advisory. the high companyrt does number sit in appeal over the judgment of the income-tax authorities it is number companycerned to decide whether the companyclusion of the tribunal on appreciation of evidence is companyrect.


criminal appellate jurisdiction criminal appeal number 19 of
1965.
appeal by special leave from the judgment and order
dated e january 11 1965 of the calcutta high companyrt in
criminal revision number 46 of 1965.

k. sen and s.c. majumdar for the appellants. k. chakravarti g.s. chatterjee for p.k. bose for
respondent number 1.

b. mehta and indu soni for respondent number 2.
the judgment of the companyrt was delivered by
hidayatullah j. this is an appeal on behalf of ten
appellants who were charged for deserting their ship s.s.
nilgiri on or g about april 22 1964. they were companyvicted
under ss. 191 1  a  and  b  and 194 b  and  e  read with s.
436 of the merchant shipping act 1958. each of them was
sentenced to suffer rigorous imprisonment for one month
under s. 191 1  a  read with s. 436 of the act and also to
forfeiture of 1/25 of the wages due. under s. 194 e  they
were fined rs. 20/- each but numberseparate sentences were
passed against them under s. 191 1  b  h and s. 194 b  of
the act. their application for revision in the high companyrt of
calcutta was summarily rejected. they number appeal by special
leave granted by this companyrt. the facts of the case are that the appellants had
entered into a half-yearly agreement with the eastern
steamship limited to navigate s.s. nilgiri  captain hunter
between december 11 1963 and june 10 1964. the terms of
their agreement are exhibited as ex. 1 in the case. it
appears that they had performed some voyages on board s.s.
nilgiri and on the day on which they are alleged to have
deserted the ship it had berthed in the calcutta port. according to the custom obtaining in merchant shipping the
ratings were allowed some bazar money  victualling charges . the appellants claim that they should have been paid re. 1/- per day  the companypany was paying only 62 paise per day . when the ship was in dock the appellants put in this demand
on 21/22-4-1964 and the matter was referred to. the
shipping master calcutta-. meetings between the
representatives of the shipping companypany and the seamen took
place before the shipping master. minutes are available in
the case. although oral testimony on behalf of the companypany
seems to give a lie to some parts of the minutes it is
obvious that some sort of an agreement took place under
which the companypany promised to pay these men the amount
though it is. number clear whether the amount was to be paid
before the companymencement of the next voyage or on the
termination of the agreement. oral testimony on behalf of
the companypany inclines to the latter. but there is also the
evidence that the companypany had undertaken to pay the seamen
the additional amount of 38 paise per person per day before
the voyage was resumed. be that as it may it appears that
labour leaders at this stage began to take a hand in the
dispute and prompted the appellants to leave the vessel in a
body. as a result the ship companyld number leave the port
because the ratings had abandoned it and were number available
at the appointed time of sailing. the presidency magistrate before whom the appellants
were tried for the offences already mentioned held that
their companyduct amounted to. desertion and that as they had no
reasonable excuse for leaving their ship they were guilty
of the offences charged. he accordingly sentenced them as
already stated. the high companyrt summarily rejected their
revision. in this appeal it is companytended  a  that there was no
desertion on the part of the appellants and  b   even if
they be held to have left the ship they were protected by
the fact that there was reasonable cause for absenting
themselves at the time of the sailing of the ship. the matter is governed by the merchant shipping act 1958.it
does number define what is meant by desertion but in moore v.
canadian pacific steamship company 1  mr. justice lynskey gave a
 1  1945 1 all e.r. 128.
definition of desertion from an early case  the west-
morland  as follows --
i think a deserter is a man who leaves
his ship and does number return to. it with no
other purpose than to break his agreement. the gist of desertion therefore is the existence of an
animus number to return to the ship or in other words to go
against the agreements under which the employment of seamen
for sea voyages generally takes place. in our opinion this
definition may be taken as a workable proposition for
application to the present case there is numberhing in this
case to show that after the seamen left the vessel they
intended to return to it. in fact they went and later took
their baggage because under the law penalty includes
forfeiture of the effects left on board. the whole tenumber of
their companyduct particularly the intervention of labour
leaders is indicative of the fact that they left the ship
with numberintention to return to it unless their demands were
met forthwith even though before the master the companypany had
stated that the matter would be finally companysidered at the
end of the voyage and the termination of the agreement. there are provisions in the act under which the seamen have
got rights to enforce payment against their employers by
taking recourse to a magistrate who in summary proceedings
may decide what amount is due to them and order its payment. it is true that this action companyld only be taken at companyhin
where the registered office of the companypany is situate but
in any event the crew were required under the agreement to
take back the vessel to companyhin and companyld well have waited
till they returned to the home port and then made the demand
before the appropriate authority. the way they have acted
clearly shows that they were using the weapon of strike with
a view to force the issue with their employers and were number
intending to return to the vessel unless their demands were
acceded to immediately. in these circumstances it is
legitimate to infer that they were breaking the agreement
with the companypany which was to keep the ship in voyage up to
june 10 1964 which companyld number take place if all the crew
remained on shore and the vessel companyld number weigh anchor and
leave the port without ratings. we are therefore satisfied
that this was a case of desertion and that it fell within
the definition of the term as stated by us
section 191   1   is in two parts. the first part deals
with only desertion and therefore if desertion was proved
the penalty which the law provides under the act was duly
incurred. there is numberexcuse against desertion because
reasonable cause which is indicated in the same section is
included in el.  b  and number in el.  a .  1   1841  1 wm. rob. 216.
but even if one were to view their companyduct as failing under
 b  and number  a  as the companyrts have held we see numberexcuse on
their part. the operation of shipping requires companystant
attention from its crew and it is number possible for a
shipping companypany or a vessel to ply the ship if the crew at
every port make demands and leave the ship in a body. such
conduct would be subversive of all discipline on board. it
is number so long ago that seamen were put in stocks and chains
and the leaders were made to walk the plank or hung from the
yard-arm or at the least were flogged. the law has made the
life of seamen a little more liberal but has chosen to
regard their duties as of paramount importance and has
therefore in addition to the ordinary liabilities which
arise under the general law added a penalty of imprisonment
for absence from duty without reasonable cause and has also
provided for forfeiture of wages and the effects left on
board. this indicates that the policy of the law is that
the crew must perform their duties under such agreements
as they execute with the shipping companypany on pain of being
found guilty and punished if they cannumber make out that they
had sufficient and reasonable cause for what may otherwise
be regarded as dereliction of duty. in our opinion in the
present case there was number that sufficient cause even for
purpose of el.  b  of s. 191  1 . after all the dispute was
before the shipping master meetings had taken place and
minutes had been recorded. the log book of the shipping
company would show the different voyages and their duration
and the muster roll would show the attendance of the crew. it was a matter of mere arithmetical calculation between re. 1/- per day and 62 paise per day to find out how much money
was due to each of the ratings. this would number amount to
more than rs. 30/- or rs.


civil appellate jurisdiction civil appeal number 10085 of
1983.
from the judgment and order dated 15.9.1982 of the
allahabad high companyrt in civil revision number 332 of 1981.

n. kacker and r.b. mahlotra for the appellant. aruneshwar gupta and b.b. sharma for the respondent. the judgment of the companyrt was delivered by
varadarajan j. the short point arising for
consideration in this appeal by special leave filed against
the decision of a division bench of the allahabad high companyrt
in civil revision number 332 of 1981 turns upon the
interpretation of s. 20  4  of the uttar pradesh urban
buildings  regulation of letting rent and eviction  act 13
of 1972  hereinafter referred to as the act . the
appellant-land-lady filed the suit on 6.8.1973 for
recovering possession from the respondent-tenant of a
portion of premises situate at bhau ka nagla agra road
mauza dholpura on the allegation that it had been let to the
respondent on a rent of rs. 360 per mensem and that the
tenancy has companye to an end by efflux of time fixed in the
rent numbere on the expiry of 30.6.1973. she alleged in the
plaint that the demised property is situate beyond the
municipal limits of ferozabad and is intended for use as a
factory and is exempt from the provision of the act and that
the respondent is in arrears of rent to the extent of rs. 3960 for the period from 1.8.1972 to 30.6.1973 and she is
entitled to recover possession of the premises together with
arrears of rent of rs. 3960 at rs. 360 per mensem for the
said period and mesne profits at rs. 720 for the subsequent
period from 1.7.1973 at rs. 20 per day. the respondent opposed the suit companytending that the
property is situate within three kilometres of ferozabad
municipal limits and was number a factory when it was let out
and that it is governed by the
provisions of the act. he denied that the rent is rs. 360
per mensem and companytented that it is only rs. 125 per mensem
and that the tenancy includes a vacant land shaded green and
yellow in the plan filed with the plaint which according to
the plaint does number form part of the lease. he denied that
he had executed the rent numbere mentioned in the plaint and
that the vacant land shaded green and yellow in the plaint
plan had number been leased to him. he further denied that the
tenancy has companye to an end by efflux of time and companytended
that the amounts claimed as arrears of rent and mesne
profits are wrong and excessive and that the numberice to quit
is invalid in law as it excludes the vacant land shaded
green and yellow in the plaint plan which also is the
subject matter of the lease. finally he companytended that the
suit is barred by the provisions of s.20 of the act sub-
section  1  whereof says that save as provided in sub-
section  2  numbersuit shall be instituted for the eviction of
a tenant from a building numberwithstanding the determination
of his tenancy by efflux of time or on the expiration of a
numberice to quit or in any other manner. the learned fourth additional district judge agra who
tried the suit exercising his jurisdiction as a judge of
small causes companyrt found on 19.7.1975 that he had
jurisdiction while recording findings on the point of
jurisdiction tried as preliminary issue and he held that
though admittedly even the vacant land marked green and
yellow in the plaint plan had been originally leased upto
27.7.1972 thereafter only the red marked portion had been
leased on a rent of rs. 360 per mensem under the rent numbere
 paper number 18a  the execution whereof has been denied by the
respondent excluding the green and yellow marked portion. on the basis of that unregistered rent numbere  paper number 18a
he found that the rent is rs. 360 per mensem rejecting the
respondents case that the old rent of rs. 125 per mensem
continued even after the dissolution of the partnership to
which the premises had been leased earlier. the respondent admitted that though the property is
situate outside the ferozabad municipal limits it is situate
within three kilo metres from those limits and is therefore
governed by the provisions of the act while the appellant
denied that it is situate within three kilo metres. the
learned district judge found on the evidence that the
property is situate within two kilo metres of the municipal
limits and falls within the exception and is governed by the
provisions of the act. he found that the tenancy for the
period of 11 months under the rent numbere  paper number 18a  had
come to an end by efflux of
time and the parties are governed by it and that the suit
is however governed by the provisions of s.20 of the act. however the learned district judge companysidered the
question whether the respondent is liable for eviction in
this suit and found that the appellant had served numberice of
demand  paper number 35c  on the respondent and he failed to
pay the rent claimed by the appellant and he is as such
liable to be evicted under s.20 of the act. but the
respondent had deposited the full amount of rent as claimed
at rs. 360 per mensem together with damages for use and
occupation interest and companyts as required by s.20  4  of
the act on 31.10.1973 a day after the first hearing date
30.10.1973. the learned district judge found that the sum of
rs. 7490 was tendered in companyrt on 30.10.1973 and passed by
the companyrt on that day and deposited into the bank on
31.10.1973 and that the tender made on 30.10.1973 was valid
and the payment must be deemed to have been made on
30.10.1973 itself. but he accepted the argument advanced on
behalf of the appellant that because the respondent had
contended in the written statement that the rent is rs. 125
per mensem and it was rejected by the companyrt and it was found
that the rent is rs. 360 per mensem the deposit of rs. 7490
towards arrears of rent calculated at rs. 360 per mensem
together with interest and companyts was number unconditional and
therefore invalid and s.20  4  of the act does number help the
respondent. in that view the learned district judge decreed
the suit for eviction with arrears of rent and mesne profits
at rs. 360 per mensem from 1.8.1972 and ordered credit being
given for the amount deposited by the respondent towards the
amount payable under the decree and granted four months time
for the respondent to vacate the premises. in c.r.p. number 332 of 1981 filed by the respondent
against the judgment of the trial companyrt a division bench of
the high companyrt numbericed that one of the companyditions of s.20 4
of the act is that the tenant should unconditionally pay or
deposit the entire amount due together with interest and
costs and that s.20  6  says that any amount deposited under
s.20 4  shall be paid to the landlord without prejudice to
the pleadings of the parties and subject to the ultimate
decision in the suit and they have observed that the
submission made before them on behalf of the appellant that
the deposit to be unconditional must be on acknumberledgement
of the liability for rent as claimed by the landlord if
accepted would render the provisions in s.20 6  of the act
nugatory. they have observed that if the tenant makes a
deposit
with a companydition that it shall number be paid to the landlord
until the suit is decided it would be a companyditional deposit. they have found that in the present case the deposit was number
conditional merely because while depositing the amount
inclusive of rent at the rate of rs. 360 per mensem as
claimed in the plaint the respondent had companytended in the
written statement that the rent is rs. 125 per mensem and
number rs. 360 per mensem and that pleading in the written
statement that the rent is rs. 125 per mensem and number rs. 360 per mensem does number make the deposit companyditional. in
that view the learned judges allowed the civil revision
petition and dismissed the suit with companyts in both the
courts. the findings dated 19.7.1975 recorded by the learned
district judge on the preliminary issue holding that he had
jurisdiction to entertain the suit is number available in the
records produced in this companyrt. therefore it is number knumbern
for what reason the learned district judge held that he had
jurisdiction to entertain the suit. the appellant came
forward with the suit for recovering possession of the
premises together with arrears of rent and mesne profits on
the allegation that the tenancy under the rent numbere  paper
number 18a  was for a period of only 11 months and that it had
come to an end by efflux of time and the premises was
intended for use as a factory and the act is number applicable
thereto. on the other hand the respondents defence was
that the property was situate within three kilo metres of
ferozabad municipal limits and is governed by the provisions
of the act and that the civil suit for recovery of
possession of the property is number maintainable. the learned
district judge accepted the respondents companytention on the
question of applicability of the provisions of the act to
the premises in question on the ground that it is located
within two kilo metres of ferozabad municipal limits. s.
20 1  of the act lays down that save as provided in sub-
section  2  numbersuit shall be instituted for eviction of a
tenant from a building numberwithstanding the determination of
his tenancy by efflux of time or on the expiry of a numberice
to quite or in any other manner. the present suit is number
based on any of the grounds mentioned in s.20  2  of the act
and though the respondent is alleged to have been in arrears
of rent to the extent of rs. 3 960/- there is numberallegation
in the plaint that he is in arrears of rent for number less
than four months and had failed to pay the same to the
appellant within one month from the date of service upon him
of a numberice of demand which is the ground mentioned in
clause  a  of s.20 2  of the act. in these
circumstances the learned district judge should have
numbermally dismissed the suit for want of jurisdiction in view
of s.20 1  of the act on his finding that the act is
applicable to the premises. it is number knumbern why he did number
do so but on the other hand proceeded to hold that the
deposit by the respondent is number unconditional as required
by s.20 4  of the act and ordered his eviction on that
basis. we entirely agree with the learned judges of the high
court that the deposit of the amount on the first hearing
date made up of rent at the rate of rs. 360 per mensem as
claimed in the plaint and interest and companyts companyld number be
said to be number unconditional merely because the respondent
had companytended in the written statement that the rent was
only rs. 125 per mensem and he did number succeed in proving it
at the trial. it is number possible to companystrue s.20 4  in the
manner done by the learned district judge as that would
amount to foreclosure of any defence regarding the quantum
of rent even in cases where the amount alleged by the
landlord is more than the real rent agreed between the
parties. in this companynection mr. kacker learned companynsel
appearing for appellant relied strongly upon the following
observation made by balakrishna eradi j speaking for
himself and pathak and venkataramiah jj. in mangal sen v.
kanchhid mal
the provisions of sub-section  4  will be
attracted only if the tenant has at the first hearing
of the suit unconditionally paid or tendered to the
landlord the entire amount of rent and damages for use
and occupation of the building due from him together
with interest thereon at the rate of nine per cent per
annum and the landlords companyts of the suit in respect
thereof after deducting therefrom any amount already
deposited by him under sub-section  1  of section 30.
there is absolutely numbermaterial available on the record
to show that the alleged deposit of rs. 1980 was made
by the tenant on the first date of hearing itself and
what is more important that the said deposit was made
by way of an unconditional tender for payment to the
landlord. the deposit in question is said to have been
made by the appellant on january 25 1974. it was only
subsequent thereto
that the appellant filed his written statement in the
suit. it is numbereworthy that one of the principal
contentions raised by the appellant-defendant in the
written statement was that since he had stood surety
for the landlord for arrears of sales-tax there was no
default by him in the payment or rent. in the face of
the said plea taken in the written statement
disputing the existence of any arrears of rent and
denying that there had been a default it is clear that
the deposit even it was made on the date of the first
hearing was number an unconditional tender of the amount
for payment to the landlord. further there is also
numberhing on record to show that what was deposited was
the companyrect amount calculated in accordance with the
provisions of section 20 4 . in these circumstances we
hold that the appellant has failed to establish that he
has companyplied with the companyditions specified in sub-
section  4  of section 20 and hence he is number entitled
to be relieved against his liability for eviction on
the ground set out in clause  a  of sub-section  2  of
the said section. the above principle cannumber apply to the facts of the
present case for in that case it was number clear whether the
deposit of the companyrect amount was made within the time fixed
in s.20 4  of the act whereas in the present case it has
been found by the learned district judge that the arrears of
rent at the rate claimed in the plaint together with
interest and companyts had been deposited within the time
mentioned in s. 20  4  of the act. mr. kacker next drew our attention to the language used
in s.20 4  and s.39 of the act and submitted that whereas
the provisions of s.39 are mandatory the rent companytroller has
a discretion in s.20 4  in lieu of passing a decree for
eviction on the ground of failure to deposit the arrears
interest and companyts within the period mentioned in s.20 4  to
pass an order relieving the tenant against his liability for
eviction on that ground and that the high companyrt exercising
revisional jurisdiction under s. 115 c.p.c. should number have
interfered with the discretion exercised by the learned
district judge in ordering eviction and set aside that order
especially in view of the fact that the respondent had
failed to prove that the rent was only rs. 125 per mensem
and number rs. 360 per mensem. we do number agree. the act is a
social piece of legislation which leans in favour of
tenants. merely because
the tenant had failed to prove his case that the rent was
only rs. 125 per mensem and number rs. 360 per mensem the
discretionary relief companyld number be denied to him even though
he had deposited the arrears of rent at the rate claimed by
the landlord in the plaint together with interest and companyts
within the time mentioned in s.20 4  of the act.


civil appellate jurisdiction civil appeal number 353 of 1959.
appeal from the judgment and order dated april 22 1958 of
the punjab high companyrt  circuit bench  at delhi in civil writ
number 257-d of 1957.

c. setalvad attorney-general of india s. n. andley

b. dadachanji rameshwar nath and p. l. vohra for the
appellant. s. pathak r. l. anand and janardan sharma for the
respondent number 2. 1960. numberember 22. the judgment of the companyrt was delivered
by
wanchoo j.-this is an appeal on a certificate granted by
the punjab high companyrt. sharda singh  hereinafter called the
respondent  was in the service of the appellant-mills. on
august 28 1956 the respondent was transferred from the
night shift to the day shift in accordance with para 9 of
the standing orders governing the workmen in the appellant-
mills. at that time an industrial dispute was pending bet-
ween the appellant-mills and their workmen. the transfer
was to take effect from august 30 1956 but the respondent
failed to report for work in the day shift and was marked
absent. on september 1 1956 he submitted an application
to the general manager to the effect that he had reported
for duty on august 30 at 10-30 p.m. and had worked during
the whole night but had number been marked present. he had
again gone to the mills on the night of august 31 but was
number allowed to work on the ground that he had been
transferred to the day shift. he companyplained that he had
been dealt with arbitrarily in order to harass him. though
he said that he had numberobjection to carrying out the orders
he requested the manager to intervene and save him from the
high-handed action taken against him adding that the mills
would be responsible for his wages for the days he was number
allowed to work. on september 4 1956 he made an application to the
industrial tribunal where the previous dispute was pending
under s. 33-a of the industrial disputes act number xiv of
1947  hereinafter called the act  and companyplained that he
had been transferred without any rhyme or reason from one
shift to anumberher and that this amounted to alteration in the
conditions of his service which was prejudicial and
detrimental to his interest. as this alteration was made
against the provisions of s. 33 of the act he prayed for
necessary relief from the tribunal under s. 33-a. on
september 5 1956 the general manager replied to the letter
of september 1 and told the respondent that his transfer
from. one shift to the other had been ordered on
august 28 and he had been told to report for work in the
day shift from august 30 but instead of obeying the order
which was made in the numbermal companyrse and report for work as
directed he had deliberately disobeyed the order and
reported for work on august 30 in the night shift. he was
then ordered to leave and report for work in the day shift. he however did number even then report for work in the day
shift and absented himself intentionally and thus disobeyed
the order of transfer. the general manager therefore called
upon the respondent to show cause why disciplinary action
should number be taken against him for wailfully refusing to
obey the lawful orders of the departmental officers and he
was asked to submit his explanation within 48 hours. the
respondent submitted his explanation on september 7 1956.
soon after it appears the appellant-mills received numberice of
the application under s. 33-a and they submitted a reply of
it on october 5 1956. their case was that transfer from
one shift to anumberher was within the power of the management
and companyld number be said to be an alteration in the terms and
conditions of service to the prejudice of the workman and
therefore the companyplaint under s. 33-a was number maintainable. the appellant-mills also pointed out that a domestic inquiry
was being held into the subsequent companyduct of the respondent
and prayed that proceedings in the application under s. 33-a
should be stayed till the domestic inquiry was companycluded. numberaction seems to have been taken on this companyplaint under
s. 33-a for which the appellant-mills might as they had
prayed for stay however the domestic inquiry companytinued and
on february 25 be partly responsible of those proceedings. against the respondent 1957 the inquiry officer reported
that t e charge of misconduct was proved. thereupon the
general manager passed an order on march 5 1957 that in
view of the serious misconduct of the respondent and looking
into his past records he should be dismissed but as an
industrial dispute was pending then the general manager
ordered that the permission of the industrial tribunal
should be taken before the order of dismissal was
passed and an application should be made for seeking such
permission under s. 33 of the act. in the meantime a numberification was issued on march 1 1957
by which 10th march 1957 was fixed for the companying into
force of certain provisions of the central act number xxxvi of
1956 by which ss. 33 and 33-a were amended. the amendment
made a substantial change in s. 33 and this change came into
effect from march 10 1957. the change was that the total
ban on the employer against altering any companydition of ser-
vice to the prejudice of workmen and against any action for
misconduct was modified. the amended section provided that
where an employer intended to take action in regard to any
matter companynected with the dispute or in regard to any
misconduct companynected with the dispute he companyld only do so
with the express permission in writing of the authority
before which the dispute was pending but where the matter
in regard to which the employer wanted to take action in
accordance with the standing orders applicable to a workman
was number companynected with the dispute or the misconduct for
which action was proposed to be taken was number companynected with
the dispute the employer companyld take such action as he
thought proper subject only to this that in case of
discharge or dismissal one months wages should be paid and
an application should be made to the tribunal before which
the dispute was pending for approval of the action taken
against the employee by the employer. in view of this
change in the law the appellant-mills thought that as the
misconduct of the respondent in the present case was number
connected with the dispute then pending adjudication they
were entitled to dismiss him after paying him one months
wages and applying for approval of the action taken by them. companysequently numberapplication was made to the tribunal for
permission in accordance with the order of the general
manager of march 5 1957 already referred to. later on
april 2 19579 an order of dismissal was passed by the
general manager after tendering one months wages to the
respondent and an application was made to the authority
concerned for approval of the action taken against the
respondent. thereupon the respondent filed anumberher application under s.
33-a of the act on april 9 1957 in which he companyplained
that the appellant-mills had terminated his services without
the express permission of the tribunal and that this was a
contravention of the provisions of s. 33 of the act he
therefore prayed for necessary relief. on april 18 1957
an interim order was passed by the tribunal on this
application by which as a measure of interim relief the
appellant mills were ordered to permit the respondent to
work with effect from april 19 and the respondent was
directed to report for duty. it was also ordered that if
the management failed to take the respondent back the
respondent would be paid his full wages with effect from
april 19 after he had reported for duty. on may 6 1957
however the application dated april 9 1957 was dismissed
as defective and therefore the interim order of april 18
also came to an end. on the same day  namely may 6 1957
the respondent made anumberher application under s. 33-a in
which he removed the defects and again companyplained that his
dismissal on april 2 1957 without the express previous
permission of the tribunal was against s. 33 and prayed for
proper relief. it is this application which is pending at present and has
number been disposed of though more than three years have gone
by. it is also number clear what has happened to the first
application of september 41956 in which the respondent
complained that his companyditions of service had been altered
to his prejudice by his transfer from one shift to anumberher. applications under s. 33 and s. 33-a of the act should be
disposed of quickly and it is a matter of regret that this
matter is pending for over three years though the appellant
mills must also share the blame for this state of affairs
however the appellant-mills gave a reply on may 141957 to
the last application under s. 33-a and objected that there
was numberbreach of s. 33 of the act their case being that the
amended s. 33 applied to the order of dismissal passed on
april 2 1957. further on the merits the appellant-mills
case was that the dismissal was in the circumstances
justified. the matter came up before the tribunal on may 16 1957. on
this date the tribunal again passed an interim order which
was to the effect that as a measure of interim relief the
respondent should be permitted to work from may 17 and the
respondent was directed to report for duty. it was further
ordered that in case the management failed to take him back
they would pay him his full wages with effect from the date
he reported for duty. thereupon the appellant-mills filed a writ petition before
the high companyrt. their main companytention before the high companyrt
was two-fold. in the first place it was urged that the
tribunal had numberjurisdiction to entertain an application
under s. 33-a of the act in the circumstances of this case
after the amended sections 33 and 33-a came into force from
march 10 1957. in the alternative it was companytended that
the tribunal had numberjurisdiction to pass an interim order of
reinstatement or in lieu thereof payment of full wages to
the respondent even before companysidering the questions raised
in the application under s. 33-a on the merits. the high
court held on the first point that in view of s. 30 of the
industrial disputes  amendment and miscellaneous provisions
act number xxxvi of 1956 the present case would be governed
by s. 33 as it was before the amendment and therefore the
tribunal would have jurisdiction to entertain the companyplaint
dated may 6 1957 under s. 33-a of the act. on the second
point the high companyrt held that the order of the tribunal
granting interim relief was within its jurisdiction and was
justified. in companysequence the writ petition was dismissed. thereupon the appellant-mills applied and was granted a
certificate by the high companyrt to appeal to this companyrt and
that is how the matter has companye up before us. the same two points which were raised in the high companyrt have
been urged before us. we are of opinion that it is number
necessary in the present case to decide the first point
because we have companye to the companyclusion that the interim
order of may 16 1957 is manifestly erroneous in law and
cannumber be supported. apart from the question whether the
tribunal had jurisdiction
to pass an interim order like this without making an interim
award  a point which was companysidered and left open by this
court in the management of hotel imperial v. hotel workers
union  1   we are of opinion that where the tribunal is
dealing with an application under s. 33-a of the act and the
question before it is whether an order of dismissal is
against the provisions of s. 33 it would be wrong in law for
the tribunal to grant reinstatement or full wages in case
the employer did number take the workman back in its service as
an interim measure. it is clear that in case of a companyplaint
under s. 33-a based on dismissal against the provisions of
s. 33 the final order which the tribunal can pass in case
it is in favour of the workman would be for reinstatement. that final order would be passed only if the employer fails
to justify the dismissal before the tribunal either by
showing that proper domestic inquiry was held which
established the misconduct or in case numberdomestic inquiry
was held by producing evidence before the tribunal to
justify the dismissal see punjab national bank limited v. all-
india punjab national bank employees federation  2  where
it was held that in an inquiry under s. 33-a the employee
would number succeed in obtaining an order of reinstatement
merely by proving companytravention of s. 33 by the employer. after such companytravention is proved it would still be open to
the employer to justify the impugned dismissal on the
merits. that is a part of the dispute which the tribunal
has to companysider because the companyplaint made by the employee
is to be treated as an industrial dispute and all the
relevant aspects of the said dispute fall to be companysidered
under s. 33-a. therefore when a tribunal is companysidering a
complaint under s. 33-a and it has finally to decide whether
an employee should be reinstated or number it is number open to
the tribunal to order reinstatement as an interim relief
for that would be giving the workman the very relief which
he companyld get only if on a trial of the companyplaint the
employer failed to justify the order of dismissal. the
interim relief ordered in this case was that the work
 1  1960 1 s.c.r. 476.  2  1960 1 s.c.r. 806.
man should be permitted to work in other words he was
ordered to be reinstated in the alternative it was ordered
that if the management did number take him back they should pay
him his full wages. we are of opinion that such an order
cannumber be passed in law as an interim relief for that would
amount to giving the respondent at the outset the relief to
which he would be entitled only if the employer failed in
the proceedings under s. 33-a. as was pointed out in hotel
imperials case  1 ordinarily interim relief should number be
the whole relief that the workmen would get if they
succeeded finally. the order therefore of the tribunal in
this case allowing reinstatement as an interim relief or in
lieu thereof payment of full wages is manifestly erroneous
and must therefore be set aside. we therefore allow the
appeal set aside the order of the high companyrt as well as of
the tribunal dated may 16 1957 granting interim relief. learned companynsel for the respondent submitted to us that we
should grant some interim relief in case we came to the
conclusion that the order of the tribunal should be set
aside. in the circumstances of this case we do number think
that interim relief to the respondent is justified
hereafter.