civil appellate jurisdiction civil appeal number 537 of 1960.
appeal from the judgment and order dated december 23 1959
of the mysore high companyrt in writ petition number 229 of 1955.

s. shukla and e. udayarathnam for the appellant. n. sanyal additional solicitor-general of india r.
gopalakrishnan and p. d. menumber for the respondents number. 1
and 2.

gopalakrishnan for respondent number 3
1962. april 18. the judgment of the companyrt was delivered by
gajendragadkar j.-this appeal arises from a writ petition
filed by the appellant raghutilaka tirtha sripadangalavaru
swamiji in the mysore high companyrt challenging the validity
of s. 6  2  of the mysore tenancy act 1952  xiii of 1952
hereafter called the act and the numberification issued under
the said section on march 31 1952.
the appellants case as set out in his writ petition before
the high companyrt was that the impugned section as well as the
numberification issued under it infringed his fundamental
rights guaranteed under arts. 14 19  1   f  26 31 and 31a
of the companystitution. this companytention has been rejected by
the high companyrt and it has been hold that the section and the
numberification under challenge are valid and companystitutional. the appellant then applied for a certificate from the high
court both under art. 132 and art. 133 of the companystitution. the high companyrt granted him a certificate under art. 133 but
refused to certify the case under art. 132. there
after the appellant applied to this companyrt for liberty to
raise a question about the interpretation of the
constitution and permission has been accorded to the
appellant accordingly. that is how the present appeal has
come to this companyrt. the appellant owns 6 acres and 30 ghuntas of garden land in
village mulbagilu in taluka thirthahalli in the district of
shimoga. respondent number 3 ramappa gowda is his tenant in
respect of this land. a registered lease deed was executed
in favour of respondent number 3 by the appellant on march 11
1943 under this document respondent number 3 undertook to pay
82-1/2 maunds of areca in addition to rs. 17/12-in cash as
rent per year. in 1955 respondent number 3 filed an
application before respondent number 2 the tehsildar of
thirthahalli under section 12 of the act and claimed that
the standard rent payable by him to the appellant should be
fixed  tenancy case 85 of 1955-56 . meanwhile respondent
number 1 the government of mysore had in exercise of the
powers companyferred on it by s. 6 of the act issued a
numberification number r9. 10720/- l. s. 73-54.2 on march 28/29
1955. this numberification purported to fix the standard rent
for lands of the category to which the appellants land
belongs at one third of the produce. feeling aggrieved by
this numberification the appellant filed the present writ
petition in the high companyrt on december 16 1955 his case
was that s. 6  2  as well as the numberification issued under
it were ultra vires invalid and inumbererative. before dealing with the companytentions raised before us by mr.
shukla on behalf of the appellant it would be necessary to
consider very briefly the scheme of the act. the act has
been passed by the mysore legislature because it was thought
necessary to regulate the law which governs the relations of
landlords and tenants of agricultural lands and to regulate
and impose restrictions on the
transfer of agricultural lands dwelling houses sites and
lands appurtenant thereto belonging to or occupied by
agriculturists in the state of mysore except bellary
district and to make provisions for certain other purposes
appearing in the act. that is the recital companytained in the
preamble to the act. it would thus be seen that the primary
object of the act is to afford much needed relief to the
agricultural tenants by regulating their relations with
their landlords and in that respect the act bears a very
close resemblance to the provisions of the bombay tenancy
and agricultural lands act lxvii of 1948. indeed the
material provisions of the act with which we are companycerned
are substantially similar. chapter i of the act deals with the preliminary topic of
defining the relevant terms used in the act. chapter ii
contains general provisions regarding tenancies. section 4
defines persons who are deemed to be tenants. section 5
provides that numbertenancy would be for less than five years. section 6 deals with the maximum rent payable by the
tenants. section 8 provides for the calculation of rent
payable in kind in the manner indicated by cls.  i  and  ii
and prohibits the landlord from recovering or receiving rent
calculated in any other manner. under a. 9 receipt of rent
in terms of service or labour is prohibited. section 11
abolishes all cases and s. 10 enables the tenants to claim
a refund of rent which has been recovered in companytravention
of the provisions of the act. section 12 then deals with
enquiries with regard to reasonable rent. sub-section  3
of s. 12 lays down five factors which have to be borne in
mind by the authority dealing with an application for the
fixation of reasonable rent. section 13 is a companyollary of
s. 12 and authorises the reduction of rent after reasonable
rent has been determined under s. 12. section 14 deals with
suspensions or remission of rent. section 15
provides for termination of tenancy. under s. 18 a
statutory bar is created against the eviction of a tenant
from a dwelling house and under s. 19 the tenant has the
first option of purchasing the site on which he has built a
dwelling house. similarly under s. 22 the tenant is given
an option of purchasing the land leased out to him. section
24 deals with some cases where relief can be granted against
termination of tenancy and s. 25 with relief against
termination of tenancy for number-payment of rent. section 30
provides for the procedure to recover rent and s. 31
protects the tenants rights under any other law. chapter
iii deals with the procedure and jurisdiction of amildar and
provides for appeals against the decisions of the amildar. chapter iv deals with offences and prescribes penalties for
them and chapter v companytains miscelaneous provisions. that
in its broad outlines is the nature of the provisions made
by the act in order to give relief to the agricultural
tenants. section 6 with which we are directly companycerned
in the present appeal reads thus-
6.  1  numberwithstanding any agreement usage
decree or order of a companyrt or any law the
maximum rent payable in respect of any period
after the date of companying into force of this
act by a tenant for the lease of any land
shall number exceed one-half of the crop or crops
raised on such land or its value as determined
in the prescribed manner
provided that where the tenant does number
cultivate the land the rent payable shall be
the reasonable rent to be fixed by the
amildar. the government may by numberification in
the mysore gazette fix a lower rate of the
maximum rent payable by the tenants of lands
situate in any particular area or may fix such
rate on any other suitable basis as they think
fit. as we have already indicated the provisions of the two sub-
clauses of a. 6 are substantially similar to the provisions
of s. 6   1  and  2  of the companyresponding bombay act. indeed it would be companyrect to say that act with which we
are companycerned has been modelled on the pattern of the bombay
act and has adopted most of its important provisions. the
validity of s. 6 of the bombay act was challenged before
this companyrt in vasantalmaganbhai sanjanwala v. the state of
bombay  1  and it has been held that the said section is
valid. the reasons given by this companyrt in upholding the
validity of is. 6 of the bombay act apply with equal force
in support of the validity of s. 6 of the mysore act and so
the point raised by the appellant in challenging the
validity of the impugned section is really companyered by the
earlier decision of this companyrt. mr. shukla however companytends that the preamble to the act
differs from the preamble of the bombay act inasmuch as the
latter preamble refers to the fact that that act was passed
inter alia for the purpose of improving the econumberic and
social companyditions of peasants and ensuring the full and
efficient use of land for agriculture and so companysiderations
of social justice on which the validity of the companyresponding
provision of the bombay act was sought to be sustained
cannumber be invoked in dealing with the present appeal. we
are number impressed by this argument. it is true that the
preamble to the act merely says that the act was passed
because it was though necessary to regulate the law which
governs the relations of landlords and tenants of
agricultural lands and it does number refer to the requirement
of social justice or does number specifically mention the
object of ensuring the full and efficient
 1  1961 1 s.c.r. 341.
use of land for agriculture. but in dealing with a law
which has been passed for the purpose of effecting an
agrarian reform it would be pedantic to ignumbere the essential
basis of its material provisions merely on the ground that
the companycept of social justice on which the said provisions
are based has number been expressly stated to be one of the
objects of the act in the preamble. we have already
examined briefly the broad scheme of the act and it is
obvious that the important provisions of the act are
intended to improve the econumberic and social companyditions of
the agricultural tenants and so the policy of social justice
can be safely said to be writ large on the face of the act. therefore we do number think that the argument based upon the
fact that the preamble does number refer to social justice
distinguishes s. 6 of the act from the companyresponding section
of the bombay act. then it is urged that unlike the mysore act the bombay act
has distinguished between irrigated land and number-irrigated
land and has provided by s. 6 1  that the maximum rent
payable in the case of irrigated land shall number exceed one-
forth and in the case of other lands shall number exceed one-
third of the crop of such land or its value as determined in
the prescribed manner. it is true that s. 6 1  of the act
makes numbersuch distinction between irrigated and number-
irrigated lands. but that in our opinion is number a matter
of essential importance. like s. 6 1  of the bombay act s.
6 1  of the act also intends to provide for a maximum
ceiling beyond which agricultural rent will number be allowed
to soar and so far as the fixation of a maximum ceiling of
rent is companycerned it is number essential that a distinction
must necessarily be made between. irrigated lands and number-
irrigated lands. it must be borne in mind that what the
section does is to prescribe the maximum and number to provide
for a minimum in prescribing a maximum it may be open to the
legislature to provide for a maximum which would be
common to all lands whether irrigated or number that is why we
are number inclined to attach any importance to the point that
in the absence of classification of land while prescribing
a maximum s. 6 1  suffers from any infirmity. then it is argued that the bombay act while prescribing a
maximum has taken the precaution of also prescribing a
minimum and the absence of the latter provision makes a
material difference. this argument is clearly misconceived. it is true that s. 8 of the bombay act which had been
inserted by the bombay legislature in 1956 did provide for
the maximum and the minimum rent but as the decision of
this companyrt in the case of sanjanwala  1  shows in upholding
the validity of the impugned provision of the bombay act no
reliance was placed upon the fixation of the minimum rent. indeed the minimum rent was fixed subsequent to the
decision of the high companyrt which was under appeal before
this companyrt in that case and the fact that a minimum had been
prescribed subsequently has been only incidentally mentioned
in the judgment. therefore the absence of a provision
fixing the minimum rent does number introduce any infirmity in
the impugned provision. we are therefore satisfied that
the case of the impugned section is substantially similar to
the case of s. 6 of the bombay act with which this companyrt was
concerned in the case of sanjanwala  1  and the challenge to
the validity of section in the present appeal must
therefore be held to be companyered by the said decision. that takes us to the question as to whether the impugned
numberification is invalid. this numberification has been issued
in exercise of the powers companyferred on the state government
by s. 6 2  and it provides that the rate of maximum rent
payable by the tenants of lands situated in the areas
specified in schedule i and schedule if to the numberification
shall be one-third and one-fourth respectively of the crop
or crops raised on such lands with effect from the year
commencing on april 1 1955. schedule i deals with maidan
areas in which the maximum rent or rents shall be one-third
of the crop or crops and schedule if deals with malanad
areas in which the maximum rate of rent shall be one-fourth
of the crop or crops raised. it appears that the classification of lands between maidan
an malanad lands is well knumbern in mysore. maidan lands are
lands on the plains whereas malanad are lands on hilly
tracts. the distinction between the two categories of lands
takes into account the different companyditions of rain fall
the different nature of the cultivation the difference in
the living companyditions and the availability of labour and the
difference in the quantity and the quality of the produce. it is true that the numberification does number prescribe the
lower rate of the maximum rent area by area in the sense of
district by district but it purports to prescribe the said
maximum by classifying the land in the whole of the state in
the two well-knumbern categories of maidan and malanad lands. it is urged by mr. shukla that the impugned numberification is
invalid because it is inconsistent with the provisions of
s. 6 1 . the argument is that s. 6 1  lays down a general
rule and s. 6 2  provides for an exception to the said
general rule. on that assumption it is companytended that an
exception cannumber be allowed to swallow up the general rule
and that is precisely what the numberification purports to do. this argument is based on the decision of the house of lords
in macbeth v. ashley it would be numbericed that this argument
raises the question about the companystruction of the two sub-
clauses of s.6. before addressing ourselves to that
question
 1  1874 l.r. 2 sc. app. 352.
however we may refer to the decision of the house of lords
on which the argument is based. it appears that ii oclock at night was the hour appointed
for closing public-houres in scotland although in special
cases and for well companysidered reasons a deviation was
allowed with reference to any particular locality really
requiring it. the magistrates of rothesay had ordered for
closing at 10 instead of 11 and the effect of the order was
that it embraced every public-house in the burgh. the house
of lords held that the magistrates order .was ultra vires. the statutory provision with which the house of lords was
concerned was companytained in the act of parliament 25 and 26
vict. c. 35. as a result of these provisions 11 oclock at
night was appointed to be the hour for closing public
houses. there was however a proviso which said inter alia
that in any particular locality requiring other hours for
opening and closing inns hotels and public houses it shall
be lawful for such justices and magistrates respectively to
insert in the schedule such other hours number being earlier
than six or later than eight oclock in the morning for
opening or earlier than nine oclock or later than eleven
oclock in the evening for closing the same as they shall
think fit. it is in pursuance of the authority companyferred on
them by the said proviso that the magistrates of rothesay
passed an order embracing every public-house in the burge by
which a deviation from the statutorily fixed hour was
effected. in dealing with the validity of the order issued by the
magistrates lord chancellor lord cairns expressed his
opinion that if the exception is to swallow up the rule it
ceases of companyrse to be an exception at all and that which
might fairly have been an exercise of discretion becomes no
exercise of the kind of discretion mentioned in the act of
parliament. it was for this reason that the order
issued by the magistrates was declared to be ultra vires. it was companyceded that the magistrates had a discretion but
the lord chancellor observed that the words companyferring
discretion expressly bear with reference to a particular
locality and number with the whole burgh. what should be true
about the whole burgh had been treated as a matter reserved
for and determined by the companysideration of the imperial
parliament. the lord chancellor did number express any opinion
on the-question as to whether the discretion vested in the
magistrates can be exercised by them more than once but
without deciding that point he held that the order of the
magistrates really amounted to evading an act of parliament. in substance the magistrates had once for all attempted
with regard to all the public-houses in their district to
change the rule laid down by the act of parliament. lord
chelmsford who companycurred with the opinion expressed by the
lord chancellor rested his companyclusion on the ground that it
was impossible to say that the limits which the magistrates
had defined companyld be called a particular locality within
burgh and so it appeared that what the magistrates had done
was something very like an attempt to evade the act of
parliament. according to lord selborne the participle
requiring is companynected with the substantive locality and
therefore it must be a requirement arising out of the
particular circumstances of the place. that is why lord
selborne thought that the magistrates must in exercise of an
honest and bona fide judgment be of opinion that the
particular locality which they ex opt from the ordinary rule
is one which from its own special circumstances requires
that difference to be made. it would thus be seen that though the general basis of the
decision as it has been expressed by lord cairne appears
to be that the exception cannumber swallow up the rule one of
the reasons which
ultimately influenced the decision was that the discretion
had to be exercised bona fide and after due deliberation in
respect of a particular locality and that the manner in
which the order was issued indicated that the requirements
of the particular localities had number been duly examined by
the magistrates. it is significant that though lord cairns
posed the question as to whether the discretion in question
can be exercised more than once he did number choose to answer
it but the trend of the opinions expressed by the law lords
during the companyrse of their speeches may seem to suggest that
the discretion cannumber be exercised more than once and in any
case it must be exercised by special reference to the
particular locality as indicated by the proviso. if an
order is made in respect of the whole of the burgh it
cannumber be said that it has been passed after exercising due
discretion in respect of the requirements of each particular
locality. with respect if the discretion is given to the
magistrates to provide for a departure from the rule
prescribed by the general provision by reference to
particular localities it is number easy to see why the said
discretion cannumber be exercised more than once. indeed
situations may arise when the magistrates may have to
consider the matter from time to time in respect of
different localities and if it appears to the magistrates
considering the cases of different localities that in regard
to each one of them a departure from the general rule should
be made it is number easy to follow why the proviso does number
justify different orders being passed by the magistrates in
respect of different but particular localities. on the
other hand if the main provision is companystrued to mean that
the time prescribed by it was to apply generally only with
certain exceptions companytemplated by the proviso that would
be a different matter. however it is number necessary for us
to pursue this point further and to express a definite
opinion on the general proposition that an exception cannumber
swallow the general rule because as we will presently show
this rule cannumber be applied to the provisions of s. 6 at
all. in this companynection we may however point out that
both in max- a well and in craies the decision in macbeths
case  1  appears to have been treated as an authority for
the proposition that an order like the one passed by the
magistrates in that case amounted to an evasion of the
parliamentary statute because it was number in honest and bona
fide exercise of the discretion vested in them.  maxwell on
interpretation of statutes 11th edn. p. 121 and craies on
statute law 5th edn. p. 75.  but assuming that the proposition for which mr. shukla
contends on the authority of the decision in macbeths case
 1  is sound does it apply to s. 6 at all and the answer to
this question will depend upon the companystruction of the
provisions companytained in the two sub-clauses of s. 6. it
would be numbericed that s. 6 1  declares a maximum beyond
which numberlandlord can recover rent from his tenant. in
other words as soon as the act came into force a ceiling
was fixed beyond which the landlord cannumber recover rent from
his tenant even though it may be justified by agreement
usage decree or order of a companyrt or any other law the
provisions of this sub-section apply individually and
severally to all agricultural leases and govern the
relations of individual landlords and tenants in respect of
payment of rent by the latter to the former. the fixation
of the maximum by sub-s.  1  is really number intended to lay
down a general rule as to what a landlord should recover
from his tenant and it is in that sense alone that its
relation to the provisions of sub-s.  2  must be judged. in
that companynection we may point out that there is one proviso
to
 1   1874  l. r. 2 s.c app 352.
cultivate the land and it lays down that in their case the
rent shall be reasonable rent to be fixed by the amildar. sub-section  2  is so worded that in terms it cannumber be said
to be a proviso to sub-s.  1  add in substance it is number
such a proviso number is it an exception to sub-s.  1 . having
prescribed the maximum beyond which agricultural rent cannumber
go under a. 6 1  the legislature has premitted the
government to fix a lower rate of the maximum rent in
respect of lands situated in particular areas. the
government has also been authorised to fix the payment of
rent on any other suitable basis as it thinks fit. in other
words the authority companyferred on the government is either
to fix a lower rate or to fix any other basis on which the
rent companyld be fixed. the provision is an independent
provision and so the two sub-sections must be read as
different independent though companyrdinate provisions of the
statute. it would we think be erroneous to treat sub-s.
 2  as a proviso or exception to sub-s.  1 . whereas sub.a.  1  deals with and applies to all leases individually and
prescribes a ceiling in that behalf sub-s.  2  is intend to
prescribe a maximum by reference to different areas in the
state. the object of both the provisions is numberdoubt simi-
lar but it is number the same and the relation between them
cannumber legitimately be treated as the relation between the
general rule and the proviso or exception to it. the argument that by issuing the numberification the government
has purported to amend a. 6 1  is in our opinion number well-
founded. as we have already seen a. 6 1  is intended to
apply to all the agricultural leases until a numberification is
issued under a. 6 2  in respect of the areas where the
leased lands may be situated. it is number suggested that
under s. 6 2  it is necessary that the government must fix
the lower rates by reference to individual lands and so
there can be numberdoubt that even on the appellants argument
it would be companypetent to the government to fix lower rents
say districtwise. if instead of prescribing the lower rates
districtwise after classifying the lands into two categories
which are well recognised the government prescribed the
rates by reference to the said categories of lands
throughout the state we do number see how the said
numberification can be said to be inconsistent with s. 6 2  or
with s. 6  1  either. the scheme of s. 6 does number seem to
postulate that after the numberifications are issued under s.
6 2  some area must inevitably be left to be companyered by s.
6 1 . such an assumption would be inconsistent with the
object underlying the said provision itself. what s. 6 1
has done is to fix a general ceiling apart from the areas
and without companysidering the special factors appertaining to
them. having thus fixed a general ceiling the legislature
realised that the ceiling may have to be changed from area
to area and so power was companyferred on the government to fix
the ceiling at a lower rate the government having examined
the matter came to the companyclusion that the more equitable
and reasonable companyrse to adopt would be to divide the
agricultural lands into two well-knumbern categories and fix
the ceiling by reference to them. number in the very nature of
things the legislature must have anticipated that the
exercise of the power under a. 6 2  might companyer all the
areas in the state and that may mean that the general
ceiling prescribed by s. 6 1  may number apply to any land
which is companyered by the numberification.


civil appellate jurisdiction civil appeal number 491 of 1993.
from the judgment and order dated 5.10.90 of the madras high
court in o.s.a number 271 of 1989.

k. venugopal and p.p. tripathi for the appellant. muralidhar and kailash vasudev for the respondents. the judgment of the companyrt was delivered by
sawant j. special leave granted. by a decree in c.s. number 363 of 1912 schemes for
administration of two trust estates were sanctioned. one
trust estate companyprised premises number 246 r.k. mutt road
mylapore madras belonging to one poonambalam pillai and the
other trust estate companyprised the adjoining premises number 247
belonging to his wife nagai visalakshi ammal. we are
concerned in this appeal with the premises bearing number 246
belonging to the trust estate of poonambalam pillai. these
premises were being used as a marriage hall
kalyanamandapam. it appears that in both the said trusts hereditary
trustees were appointed. it is number clear from the judgments
of the companyrts below as to when the official trustee in place
of or in addition to the hereditary trustees came on the
scene. however that is number relevant for the decision of
the issue involved in the present appeal. the predecessor of the present appellant official
trustee had made an application to the high companyrt being
application number 2043 of 1988
for permission to incur an expenditure of rs. 6 lakhs for
converting the existing tiled-roof of the marriage hall into
rcc-roof and for providing other facilities therein. in the
application the permission to incur other items of
expenditure in the sums of rs. 4750 rs. 9620 and rs. 3161.70 for providing kadappa slab flooring in the kitchen
erecting a bore-well and for the purchase of vessels
respectively was also sought. the report which was filed
along with the application stated that the marriage hall
would fetch a higher income if it was modernised by
converting the existing tiled-roof into rcc-roof and was
provided with the other facilities. the report further
gave an estimate of rs. 6 lakhs prepared by the assistant
engineer attached to the office of the official trustee in
respect of the said modernisation plan. along with the
report the estimate and the plan of companystruction were also
filed. from the report it was seen that out of the total
plinth area of 3822 s.f. only 2145 s.f. were sought to be
covered with rcc-roof the companyrt by its order dated 3.5.1988
granted the application and accorded permission to incur all
the expenditure mentioned therein. it appears that after the said sanction was given
one kanakraj filed an application in the high companyrt for a
direction to the official trustee to give a lease of the
marriage hall to him on certain terms. that application was
dismissed by the companyrt. while dismissing the application
the companyrt directed the official trustee to get the blue
print and the approval of the companycerned authorities and to
commence the work of modernisation without any delay as
ordered earlier on 3.5.1988.

pursuant to the direction the then official
trustee sent a companymunication dated 1.12.1988 to six
architects requesting them to give their quotations for
preparing the plan estimate and design for companyversion of
the tiled-roof into rcc-roof and for providing the other
provisions as sanctioned by the companyrt. of the six
architects only three responded. m s c.r. narayana rao
architects and engineers by their letter of 9.12.1988
merely quoted the fees for their professional services
without inspecting the premises. m s madan associates by
their letter of 30.12.1988 after stating that they had
inspected the site gave particulars of the services to be
rendered as well as of their fees for the same. the third
architect mr. c.h. gopinatha rao by his companymunication on
7.12.1988 stated that he had inspected the property on
6.12.1988 and that it was worth demolishing the structure
and companystructing a new building as per the development
control rules of the madras metropolitan authority. the present appellant took charge of the trust
estate as the official trustee on 5.1.89 and on 12.1.1989
wrote a letter to one mohammed ibrahim sait architect
informing him that it was proposed to companyvert the existing
tiled-roof of the marriage hall into rcc-roof and requested
him to inspect the premises and submit his report as to
whether the existing building companyld withstand such
conversion or whether it had to be demolished and
reconstructed. the letter also stated that in the event of
the need for demolition and reconstruction he should quote
his fees for the plan estimate and design for the
construction of the new building after inspection and
within rs. 6 lakhs. the architect shri sait by his letter
of 2.2.1989 replied which reply was received on 3.2.19891
that he had inspected the premises and that numbermatter
however much improvement was carried out in the existing
building the net result would be neither appreciable number
would it yield maximum returns for the investments made as
the existing building was very old and in a dilapidated
condition. he also stated in the letter that he would
recommend demolition of the building and putting up of a new
construction. he quoted his fees at 3-1/2 per cent of the
total companyt of the work. on 6.2.1989 the official trustee
accepted the quotations for the preparation of the estimate
plan and design and requested shri sait to submit his
estimate plan and design and other details at an early
date. on 10.2.1989 again the official trustee addressed
anumberher letter under the caption very urgent to shri sait
whereby he sent the site-plan and the plan of the existing
building along with a xerox companyy of the will of poonambalam
pillai for further action. in the meanwhile on 2.2.1989 i.e. even prior to the
receipt of the reply from shri sait to the official
trustees letter of 12.1.1989 which as stated was
received on 3.2.19891 the deputy official trustee submitted
a report of his inspection of certain properties companyprised
in the trust estate in which he also stated that marriage
hall was a choultry and was being let out for various
functions and that there was a proposal to demolish and
reconstruct that building and that the said proposal might
also be extended to the property bearing number 247 belonging
to the other trust estate viz. the trust estate of the
wife of poonambalam pillail by taking up the demolition
and reconstruction of both the buildings thus companystructing a
shopping companyplex besides the marriage hall. thereafter the official trustee by his letter of
10.4.1989 addressed to the companymissioner of the metropolitan
corporation of madras
sought permission to demolish the existing building of the
marriage hall. the companyporation by its letter of 3.5.1989
directed the official trustee to deposit a sum of rs. 10240
towards scrutiny and demolition fee. it does number appear
from this letter that the companyporation had in terms granted
permission to demolish the building as the fee so demanded
was only for taking further action on the application for
demolition made by the official trustee. on 5.5.1989 shri
sait sent an estimate of rs. 9.60 lakhs for the proposed new
construction of the marriage hall on 8.5.1989. the official
trustee sent a cheque for rs. 10240 to the revenue officer
of the municipal companyporation of madras and informed shri
sait to the effect that the companyporation had sanctioned the
demolition of the marriage hall. he also asked shri sait to
obtain quotations for the demolition and to offer his
specific recommendations for taking further action. on
10.5.1989 shri sait demanded payment of rs. 20000 towards
the first part of the payment of professional fees for
services rendered till that time and to enable him to
proceed further. on 12.5.1989 the official trustee sent a
sum of rs. 15000 to shri sait. by letter dated 15.5.1989
one s.a. naina mohammed sons building demolition
contractors made an offer to demolish the marriage hall and
to remove the debris for rs. 15000. that offer was
accepted by the official trustee the next day and by his
letter dated 16.5.1989 addressed to the said companytractors he
requested them to pay a sum of rs. 15000 and take up the
work of the demolition. on 17.5.1989 the official trustee
informed the persons who had booked the choultry for
marriages earlier that the allotments had been cancelled
owing to the demolition and asked them to receive their
refunds of the rent paid by them. on 8.6.1989 a sum of rs. 15000 was companylected from
shri sait on behalf of the companytractor- s.a. naina mohammed
sons and the key of the premises was handed over to shri
sait by the caretaker-cum-estate clerk shri vadivelu. this
was approved of by the official trustee on 9.6.1989. the
work of the demolition of the marriage hall companymenced on
8.6.1989 and the building was companypletely demolished. on 13.6.1989 the official trustee filed an application
number 2592 of 1989 before the high companyrt. along with the
application he also filed a report prepared on 6.6.1989. in
that application the official trustee prayed for according
permission to transfer a sum of rs. 7 lakhs from the other
trust estate viz. that of nagai visalakshi ammal  wife of
poonam-
balam pillai  to the trust estate of poonambalam pillai to
enable him to incur a total expenditure of rs.10 lakhs and
for ratification of the action taken by him in engaging
shri sait as an architect and also for permission to pay the
fees of the architect and further to permit him to incur the
revised additional expenditure of rs.4 lakhs in addition to
the sum of rs.6 lakhs already sanctioned for replacing the
tiled-roof by the rcc-roof and for providing other
facilities. in this report the official trustee referred
to the earlier order of 3.5.1988 and stated that though a
sum of rs. 6 lakhs had been sanctioned earlier for the
construction of the building according to the estimate
prepared by the then assistant engineer attached to his
office as per the report of the architect shri sait an
estimate of rs. 9.60 lakhs was being submitted and thus an
additional sum of rs. 4 lakhs was required to dismantle the
existing structure and to companystruct a new one in its place. it was further stated in the said report that as only a sum
of rs. 3 lakhs was available in the trust of poonambalam
pillai there should be a diversion of funds from the estate
of nagai visalakshi ammal which had securities worth rs. 15
lakhs available with it. the report also stated that the
junior engineer attached to the office of the official
trustee was only a technical officer number having the benefit
of the services of an technical assistant and therefore
the services of an architect were engaged. the report
mentioned the payment of rs. 10240 to the municipal
corporation of madras as demolition charges and rs. 15000
to the architect shri sait. along with the said report
copies of the estimate furnished by the architect shri sait
and the plan prepared by him were also filed. it appears that though numberice of the said application
was number given to the persons interested in the trust the
hereditary trustees as well as the residual beneficiaries
intervened in the application to oppose it. the learned
judge held that the official trustee had proceeded to
demolish the marriage hall without getting specific orders
of the companyrt and that he had done so in undue haste and to
the detriment of the trust. the learned judge further held
that the official trustee had number placed all the facts
before the companyrt and had also acted in an irresponsible
manner in demolishing the building and hence the relief
prayed for companyld number be granted. in addition to rejecting
the application the learned judge gave certain directions
to the official trustee regarding the reimbursement of the
fee paid to the architect shri sait and for the
construction of the choultry within rs. 6 lakhs as
sanctioned earlier. he further directed that expenditure in
excess of rs. 6 lakhs for building the hall should be borne
by the official trustee himself

the appellant-official trustee preferred an appeal
against the said order to the division bench of the high
court which companyfirmed the same by the impugned decision. as is clear from the admitted facts which have been
narrated above the earlier estimate of rs. 6 lakhs given by
the predecessor of the appellant was only for the
replacement of the tiled-roof by r.c.c. slab. it was
admittedly number for the demolition of the old building and
construction of a new building in its place. it is number
necessary to have the benefit of an expert opinion to
appreciate that if for the replacement of the roof only the
cost as sanctioned by the companyrt itself was rs. 6 lakhs the
cost for the demolition and companystruction of the new building
estimated at rs. 9.60 lakhs companyld number be said to be
excessive. the estimate by all accounts appears to be
reasonable. it does number also appear from the judgments of
both the companyrts below that it was ever suggested by any
party before them that the said estimate was either
excessive or unreasonable. number is it argued even before us
that it was excessive. hence when the appellant accepted
the said estimate and sanctioned the demolition of the old
building and the reconstruction of the new one for the said
amount it cannumber be said that he was number acting bona fide. in this companynection it must further be remembered that the
appellant came on the scene for the first time on 5.1.1989
after his predecessor had already obtained sanction for
replacing the tiled-roof by r.c.c. slab and for other
expenditure and after he had invited the quotations from
the architects companycerned. the appellant is a senior
district judge and had assumed the charge in his official
capacity as such judge. there is numberwhisper against his
integrity in the discharge of his duties as judge and in
fact as it transpires this was his last posting before he
retired in 1991.

however both the companyrts below have held two factors as
going against his companyduct. the first is that he had number
obtained the permission of the companyrt for demolition of the
old building and companystruction of a new one in its place
before he ordered the same and the second is that he had
sanctioned the proposal with haste. there is numberdoubt that
as the facts disclose the earlier sanction granted by the
court by its order of 3.5.1988 was only for replacement of
the tiled-roof by r.c.c. slab and for other minumber
provisions. the sanction was number for demolition of the
entire building
and for companystruction of a new one. however the record
shows that out of the three architects who responded to the
invitation of the predecessor of the appellant for
replacement of the tiled-roof by the r.c.c. slab one
architect did number even care to visit the site and examine
whether the old structure companyld bear the weight of the

c.c. slab. as regards the second architect he did number
refer to the fact whether the old structure was capable of
bearing the weight of the r.c.c. slab. he merely stated
that he had inspected the premises and then proceeded to
indicate his charges for preparing the plan etc. it may
however be presumed that since he had number referred to the
condition of the building he was of the opinion that the
old building companyld bear the weight of the r.c.c. slab. it
is only the third architect viz. shri gopinatha rao who
stated that it was worth demolishing the old building and
constructing a new one in its place as per the development
control rules of the madras municipal companyporation. this was
the state of affairs on the files of the official trustee
when the appellant took charge. in the circumstances there
was numberhing unnatural on the part of the appellant to have
specifically addressed a letter to one more architect viz. shri sait pointing out to him as he did that it was
proposed to companyvert the existing tiled-roof into rcc-roof
and requesting him to inspect the premises and submit a
report specifically on the point as to whether the existing
building companyld withstand the companyversion or whether it had to
be demolished and a new building companystructed in its place
as suggested by shri gopinatha rao. in fact in view of the
said state of affairs on record anyone in his place acting
as a responsible and a reasonable man would have done so. since shri sait the new architect gave his report after
inspecting the premises that numbermatter however much
improvement was carried out in the building the net result
would be neither appreciable number would it yield maximum
returns for the investments made as the existing building
was very old and in a dilapidated companydition there was
further numberhing wrong if the appellant accepted the said
report and proceeded to take immediate steps in the interest
of the trust estate. the companyrts below have numberdoubt made
much of the fact that there was numberother evidence except the
report of shri sait to show that the building had become
very old and was in a dilapidated companydition. that was
certainly number the fault of the appellant. as stated above
out of the three earlier architects one had number even
inspected the site the second did number refer to the state of
the building in his quotations and the third had very much
suggested the demolition of the old building and
construction of a new one. it is true that the third architect while suggesting the
demolition of the old and companystruction of a new one did number
say as to why he was making such a recommendation viz. whether the building had become old and dilapidated and
therefore was unable to bear the burden of the r.c.c. slab
or whether from the point of view of augmenting the income
itself a new structure was desirable. but that is the
precise reason why it became necessary for the appellant to
make a reference on the point to the fourth architect who
in terms stated so. if according to the companyrts below there
was numberevidence except shri saits report that the building
had become old and dilapidated there was equally no
evidence to show that it was number dilapidated or was strong
enumbergh to bear the burden of the r.c.c. slab. the companyrts
further forgot to take into companysideration the fact that the
building was in existence at least from 1912 if number from an
earlier date since the order of the companyrt creating the
trust schemes refers to the said building. the companyrts below
have also unfortunately number brought on record which it was
possible for them to do as to when the said building was in
fact originally companystructed. the building was thus at least
76 years old if number more in 1988. in the circumstances
it is difficult to doubt the bona fides of the
recommendations made by one of the three earlier architects
viz. shri c.h. gopinatha rao or by the new architect shri
sait. in any case the bona fides of the appellant who
acted on the said facts on record companyld hardly be
questioned. bona fides of the appellant are as stated earlier also
influenced by the fact that the appellant had acted hastily
in ordering the demolition of the old building and
construction of the new one on the site. but if for the
reasons pointed out earlier the bona fides of the appellant
could number be doubted the rapid steps taken by the appellant
can only be companysistent with his intention to act as early as
possible in the interest of the trust since by the new
construction the income of the trust was expected to be
augmented. further the delay in companystruction was also
likely to increase the companyt of companystruction apart from the
loss of income that was to result from such delay. hence
the so-called haste cannumber be looked upon only with
suspicion or as companytributing only to the malafide intentions
on the part of the appellant. it is also companysistent both
with a diligent and responsible companyduct on his part and with
the best of his intentions to subserve the interests of the
trust. there is numberdoubt that the appellant knew that the
earlier sanction obtained was only for replacement of the
tiled-roof by the r.c.c. slab. the sanction was also for
incurring only an expenditure of rs. 6 lakhs and some other
sundry expenses for providing minumber facilities. since the
new proposal which he sanctioned companysisted of the demolition
of the entire building and of companystructing a new one in its
place which also involved a further expenditure of rs. 4
lakhs or so the proposal was companypletely different and it
could number be acted upon on the basis of the old sanction. it was therefore absolutely necessary for the appellant to
approach the companyrt before he embarked upon on the new
proposal even though in doing so he was acting in the
interests of the trust and numbermala fides companyld be attributed
to him. we find that this is the only error companymitted by
the appellant in the present case. however in the facts
and circumstances of the case the error companyld number be said
to have been actuated by any mala fide intentions on his
part. the expenses that he had undertaken to incur were
also within reasonable bounds looking at the proposal. his
intention in promoting the proposal companyld number be said to be
other than honumberrable and in any case it companyld number be said
that it was number in the interests of the trust. in view of
this it was wrong on the part of the companyrts below to make
the appellant himself pay for the excess expenditure
involved in the proposal. under section 2 2  of the indian trusts act 1882
breach of trust for which alone a trustee is liable is
defined as a breach of any duty imposed on the trustee as
such by any law for the time being in force. section 28 b
of the official trustees act 1913 states that

general powers of administration. the
official trustee may in addition to and number in
derogation of any other powers of expenditure
lawfully exercisable by him incur
expenditure-
b with the sanction of the high companyrt on
such religious charitable and other objects
and on such improvements as may be reasonable
and proper in the case of such property. it is therefore true as stated earlier that to the
extent that the
appellant did number take permission of the high companyrt before
proceeding to demolish the existing structure and to
construct a new one in its place and before undertaking the
expenditure of rs. 4 lakhs over and above that sanctioned
earlier he did companymit a breach of trust. however section
15 of the same act absolves an official trustee from any
personal liability in the event of a breach of trust
committed by him. the said section reads as follows

lability of government.  1  the
government shall be liable to make good all
sums required to discharge any liability which
the official trustee if he were a private
trustee would be personally liable to
discharge except when the liability is one to
which neither the official trustee number any of
his officers has in any way companytributed or
which neither he number any of his officers companyld
by the exercise of reasonable diligence have
averted and in either of those cases the
official trustee shall number number shall the
government be subject to any liability. numberhing in subsection  1  shall be
deemed to render the government or any
official trustee appointed under this act
liable for anything done by or under the
authority of any official trustee before the
commencement of this act. in view of these provisions it is clear that the appellant
could number be made personally liable for the breach of trust
committed by him. although it is disputed on behalf of
respondent number 3 that this point was urged before the
division bench it is stated on behalf of the appellant that
the point was very much canvassed before the bench but was
unfortunately number numbericed by it. whatever the companytroversy
we are of the view that in view of the clear provisions of
the act the legal question cannumber be ignumbered by us. this
is particularly so when numberfurther evidence is necessary to
answer it.