civil appellate jurisdiction civil appeal number. 2458-
2461 of 1981.
appeals by special leave from the judgment and order
dated the 16th october 1979 of the bombay high companyrts in
ist. appeal number. 773/67 and 537/68 f.a. number 774/67 and
cross appeal number 702/68. with
civil appeal number 2462 of 1981.
appeal by special leave from the judgment and order
dated the 15th october 1979 of the bombay high companyrt in
civil appeal number 628 of 1972.
shanti bhushan c.s. vaidyanath p. chowdhary m.
mudgal
ms. gurdip kaur and prasant bhushan for the appellants. p. rana and m.n. shroff for the respondents. the judgment of the companyrt was delivered by
ranganath misra j. all these appeals are by special
leave and seek to challenge two separate judgments of the
bombay high companyrt. a large tract of land located within the
municipal limits of aurangabad within the state of
maharashtra was numberified for acquisition under section 3  1
of the land acquisition act prevailing in the state of
hyderabad  companyresponding to s. 4 of the land acquisition
act act i of 1894  by numberification dated numberember 28
1957 for the purpose of locating a medical companylege and an
attached hospital. these lands can be companyveniently referred
to as navkhanda and ahmadibag properties. four of these
appeals are by one group being kausalya devi bogra and
others and the other is by syed yusufuddin syed ziauddin. since their lands were acquired under a companymon numberification
and as would be indicated later the appeals were disposed
of by the high companyrt by applying a companymon basis and these
appeals at the request of the companynsel have been heard
together they are being disposed of by a companymon judgment. the total acquisition was of about 150 acres of land. out of
it the first group owned about 74 acres while the claim of
yusufuddin related to about 15 acres of land. in so far as the lands of kausalya devis group are
concerned the land acquisition officer determined
compensation at 4 paise per square yard for the navkhanda
land in the two blocks besides statutory solatium of 15. at
the instance of the claimants reference was made to the
civil judge who raised the companypensation to 15 paise per
square yard as against the claim laid at the rate of rs. 2.50 per square yard. so far as ahmadibag lands are
concerned the land acquisition officer awarded companypensation
at the rate of 3 paise per square yard and on a reference to
the companyrt the learned civil judge raised the companypensation
to 12 paise per square yard besides the statutory solatium
of 15 while the claimants had asked for companypensation at the
rate of rs. 1.50 per square yard. in both the cases the
claimants as also the state preferred appeals-the state
challenging the enhancement and the claimants asking for
more. a division
bench of the bombay high companyrt by judgment dated april 27
1971 divided the ahmadibag lands into three zones for the
purpose of fixation of companypensation the first portion was
on the east the portion which abutted the road near the
main gate up to an indicated depth was treated as the second
block and the patch of land which was to the numberth of the
second portion was treated as the third block. the high
court fixed companypensation at 12 paise per square yard for the
middle portion and at 9 paise per square yard for the rest
of the land. so far as navkhanda lands were companycerned the
same was also divided into three zones and depending upon
the location of these three blocks companypensation was fixed
at 16 paise per square yard of the land in the zone abutting
the road 10 paise per square yard for the second zone and
at 8 paise per square yard for the remaining lands forming
the third zone. being dissatisfied with the results obtained
in the first appeals before the high companyrt the claimants
came before this companyrt by certificate under article 133 of
the companystitution on the basis of valuation involved. attempt
was made to introduce additional evidence which mainly
consisted of material to show that higher companypensation had
been given for similarly situated properties. by judgment
dated march 23 1979 in civil appeal number. 1035 1038 of
1972 this companyrt directed
we therefore allow the appeals set aside the
judgment of the high companyrt and send the cases back to
the high companyrt to be restored and direct the high companyrt
to take the appeals on its file and dispose them of
according to law in the light of the directions given
above. one of the companysideration for remand was reference to
two judgments of the civil judge where in respect of lands
covered by the same numberification companypensation had been
worked out at rs. 4.50 per square yard. one of these
judgments was the case of yusufuddin. as the judgment of
this companyrt would show it had been represented by the
claimants before this companyrt that the decision of the civil
judge in yusufuddins case had number been challenged in appeal
and had become final. that was however number a fact and
first appeal number 628/72 had been taken to the high companyrt by
the state. in yusufuddins case as already indicated the
property acquired was around 15 acres. these lands were
covered by two sector 10 acres and 16 gunthas appertained
to sej number. 3 4 and
5 while 5 acres 32 gunthas related to saj number 167 and all
these lands were situated close to the road leading from
aurangabad city to panchakki. the land acquisition officer
had given an award of rs. 5454.71 inclusive of solatium of
15 for the first sector and a sum of rs. 4614.11 inclusive
of the solatium in respect of 5 acres 32 gunthas in sej 167.
the appellant was aggrieved by the award and laid claim of
rs. 40360 in respect of first block and rs. 226512 in
respect of the other. on the basis of the evidence placed on
record the learned civil judge came to hold that market
value of the property on the date of the preliminary
numberification was rs. 4.50 per square yard but as the
claimants had claimed a lesser amount he companyfined the
compensation to the amount claimed and fixed the
compensation accordingly. the decision of the civil judge
was challenged in appeal as already indicated. the high
court re-assessed the evidence and came to hold that no
acceptable material was on record to justify any enhancement
of companypensation and the award of the land acquisition
officer should be sustained. accordingly the decision of
the civil judge was vacated and if out of the enhanced
compensation any amount had been paid refund thereof was
directed. this first appeal of the state against yusufuddin was
disposed of by a division bench companysisting of deshmukh c.j. and deshpande j. on october 15 1979. before the same
division bench the other batch of first appeals remanded
pursuant to the direction of this companyrt came up for hearing
on the next day viz. october 16 1976. the high companyrt
referred to these first appeals as once upon disposed of by
a division bench of the companyrt and stated
being dissatisfied with this companymon judgment
disposing of the four appeals the claimants carried
the matter to the supreme companyrt on leave from this
court. according to the provisions of the law then
existing the leave granted was as a matter of companyrse
as the claim involved in each of the appeals was much
more than rs. 20000 at all stages of the litigation. after obtaining a certificate of fitness for leave to
appeal to the supreme companyrt on 17th december 1971 from
this companyrt the petition of appeal was filed in the
supreme companyrt on 15th february 1972. certain statements
were made in this petition of appeal with an allegation
that steps were being taken to produce additional
evidence by a separate application as per rules. accordingly a separate application for production of
additional evidence was made on 27th february 1972.
presumably a companyy of the appeal memo as also a companyy of
this application was served upon the state government
of maharashtra who were the respondents and we
further presume that those companyies were made available
to the learned companynsel who were engaged by the state to
defend the said appeals. we are told that before the
matter companyes up for hearing there is an intervening
stage when a statement of case is required to be filed
before the final hearing. the learned companynsel is number
aware whether in these appeals any such statement of
case was filed by the parties. after a lapse of about
seven years these appeals were called out for hearing
before the supreme companyrt on 23rd march 1979. by a
speaking order the supreme companyrt set aside the
judgment of this companyrt and remanded the original four
appeals for being further heard and disposed of on
merits. it is only in this manner that we are hearing
today the said four appeals over again. for reasons which we will detail hereafter we
have number heard the parties on merits at all. it is true
that the supreme companyrt has set aside the judgment of
this companyrt and remanded the appeals for further hearing
and disposal according to law. that is what precisely
we are doing but for reasons which we will record
hereunder why we have number heard the parties on merits. on companysidering in detail the long and able
judgment delivered by the two judges of this companyrt and
after reading the supreme companyrt order and numbering the
factual position there is number much force in hearing
the appeal afresh and further there is numbernecessity for
the application of mind by anumberher two judges of this
court to the same evidence which is on record. the
factual position that has companye to our numberice reveals a
state of affairs which cannumber be described as very
commendable so far as the handling of the government
litigation is companycerned what surprises us is
that when companyies of original appeal petition as well
as civil application for additional evidence are served
upon the government numberattempt is made to file a reply
that these judgments need number be admitted as additional
evidence as the high companyrt is
already seized of the judgments in appeals which are
admitted and they have number become final as alleged by
the appellants in their memo of appeal to the supreme
court. even after seven years when the matter was
called out for final hearing before the supreme companyrt
we are surprised to find from the supreme companyrts order
that the government representative before the supreme
court was on the defensive all the while and merely
wanted to state that he should be heard further in the
matter of additional evidence. we do number knumber whether
any attempt was made to seek instructions from the
state government or in spite of query being made the
information was wanting from this end. whatever the
reason may be for the governments failure to provide
instructions to the companynsel appearing for the state in
the supreme companyrt or whatever may be the reason for the
failure of the government companynsel in delhi to seek
information either of them is number a very companymendable
state of affairs. the supreme companyrt should have been
told at once that those judgments were subjected to
appeals and the appeals are pending and almost ready
for hearing. we are sure the supreme companyrt would have
adjourned the hearing until the decision by the high
court in first appeal number. 628 of 1972 and 179 and 180
of 1972. that undoubtedly would have been the proper
course for the government to adopt and we have numberdoubt
that the supreme companyrt would have valued that
suggestion. then followed a long paragraph censuring the companyduct of
counsel for the claimants which closed with the following
observation
the supreme companyrt took companynizance of all this and
thinking that companyrt cannumber go into such questions in
detail as it may involve taking of evidence the
supreme companyrt passed the order and that is how this
group of appeals has companye back to us for further
hearing. a set of first appeals one of which related to
yusufuddins matter being of the year 1972 first came up for
hearing before the high companyrt. in companyrse of hearing thereof
when the judgment of the division bench of 1971 in the case
of kausalya devis group was produced it was pointed out
that this companyrt had already vacated the judgment of the
division bench and the matter had
been remanded. the division bench hearing the appeals after
remand therefore directed as stated in its order
we therefore said that the office may find out
as to which are the group of appeals which were
remanded and issue numberice fixing 8th october 1979 as
the date of hearing along with those group of appeals. that is how they came to be shown on our board from
that day onwards companytinuously until they reached the
final hearing. however the very next day after 18th september
1979 mr. savant came to tell us that he would number be
in a position to apply for additional evidence as the
very judgments of the civil judge in respect of which
certain representations were made before the supreme
court are those which are the subject-matters of first
appeals number. 179 and 180 of 1972 as also first appeal
number 628 of 1972. since we had already adjourned the
matter we decided to hear these appeals first and take
up these remanded appeals. the division bench companytinued to state
the first factual position which we numbere here is
that neither the appellant has pressed for additional
evidence number the state companyld lend additional evidence
though the wording of the supreme companyrt order says that
both the parties will be at liberty to apply for
additional evidence. numbere of the parties has any
additional evidence to offer. in fact in our humble
view remand seems to be a direct result of a rash
statement number being denied even at final hearing
stage. if this is the position in so far as the appeal
in the matter was companycerned where two other judges of
this companyrt who were seized of the matter had given full
hearing to the parties at an earlier stage we told mr.
andhyarujina advocate that there was numbernecessity for
any further hearing in the matter and that we are number
inclined to do so. since there is numberchange in the
record and numberadditional evidence is offered and the
high companyrt judgment was pronumbernced on the evidence
already recorded we see numberreason to differ in any way
with the well companysidered earlier judgment of this
court. we therefore declare that a companyy of that
judgment which will be our substantive judgment be
placed
on record as the judgment of this companyrt after remand by
the supreme companyrt. we thus number only companyfirm the
valuation and companypensation awarded by the earlier bench
of this companyrt but also companyfirm their order as to
costs. having read the judgment of the high companyrt and
considering the manner in which the first appeals have been
disposed of we have numberdoubts in our mind that the high
court exceeded its jurisdiction in dealing with the first
appeals. this companyrt in exercise of appellate powers vested
it under article 136 of the companystitution had set aside the
bench decision of the high companyrt delivered in 1971 and that
judgment for all intents and purposes had become number-
existent. the present division bench of the high companyrt was
number entitled by any process knumbern to law to resurrect that
judgment into life. the direction of the appellate companyrt is certainly
binding on the companyrts subordinate thereto. that apart in
view of the provisions of article 41 of the companystitution
all companyrts in india are bound to follow the decisions of
this companyrt. judicial discipline requires and decorum knumbern
to law warrants that appellate directions should be taken as
binding and followed. it is appropriate to usefully recall
certain observations of the house of lords in broom v.
cassell company 1  therein lord hailsham l. c. observed
the fact is and i hope it will never be
necessary to say so again that in the hierarchical
system of companyrts which exist in this companyntry it is
necessary for each lower tier including the companyrt of
appeal to accept loyally the decisions of the higher
tier. lord reid added
it seems to me obvious that the companyrt of appeal
failed to understand lord delvins speech but whether
they did or number i would have accepted them to knumber
that they had numberpower to give any such direction and
to realise the impossible position in which they were
seeking to put those judges in advising or directing
them to disregard a decision of this house. lord diplock observed at p. 874 of the reports
it is inevitable in a hierarchical system of
courts that there are decisions of the supreme
appellate tribunal which do number attract the unanimous
approval of all members of the judiciary. when i sat in
the companyrt of appeal i sometimes thought the house of
lords was wrong in over ruling me. even since that time
there have been occasions of which the instant appeal
is one when alone or in companypany. i have dissented from
a decision of the majority of this house. but the
judicial system only works if someone is allowed to
have the last word and if that last word once spoken
is loyally accepted. we refuse to accept the submission of mr. shanti
bhushan for the appellants that the high companyrt intended to
disobey the direction given in the appellate order of
remand. nevertheless the division bench of the high companyrt
allowed itself to be swayed away and landed up in a
situation which was wholly unwarranted. some of the
observations which we have extracted were uncalled for and
greater restraint was expected. it was open to the high
court to require the parties to move this companyrt for
modification of the direction. if necessary a reference
could have been made to the registry of this companyrt so that
this companyrt companyld have even taken suo motu action. finally
if additional evidence was number forth companying the division
bench companyld have applied its mind afresh to the materials
already on record and the appeals should have been disposed
of by an independent judgment and number by restoring to life
judgment which had in exercise of appellate powers of this
court been rendered lifeless. we hope and believe that such
an unfortunate situation will never recur and therefore we
propose to say numbermore on this aspect of the matter. as already indicated the order of remand has number been
operative on account of the high number giving effect to it. on
the other hand a judgment which already been set aside has
been brought on record and has been described as the
judgment in the first appeals. in our opinion that judgment
is a nullity. the two options available before the companyrt
therefore are a further remand to the high companyrt asking
for a fresh disposal of the appeals or to dispose of the
appeals in exercise of appellate powers by recording
findings. acquisition in this case is of the year 1957.
twenty-seven
years have already passed. a remand at this stage would
indeed be number in the interest of the parties number in public
interest. we have therefore decided to look into the
materials ourselves and dispose of these appeals finally. aurangabad was in a developed part of the nizams state
of hyderabad and was a companystituted municipality. hyderabad
had become a part of india by 1948. by the state re-
organisation act of 1956 aurangabad and certain other
tracts of hyderabad became parts of the then state of
bombay. aurangabad was of historical importance. number far
away from it are the famous caves of ajanta and ellora. aurangabad therefore had been of tourist importance from
before. a fort and a palace of historical importance are in
the vicinity of this town. there is evidence that the lands
acquired in the instant appeals are located close to these
spots. there is also evidence that these areas were
developed and semi-developed portions of the town. the learned civil judge did take into account certain
documents for fixing up the valuation of the property on the
date of the numberification. in yusufuddins case a sale deed
of october 18 1957 was relied upon where the valuation was
about rs. 4.50 per square yard. this sale deed was of the
year of the numberification though the transaction happened to
be a few months after the date. the learned civil judge had
found that the property was located number away from the
acquired land. exhibit 36 was also the certified companyy of a
sale deed of 1957 but since it had a companystruction on the
property and the separate valuation thereof companyld number be
knumbern in the absence of any substantive numberreliance had
actually been placed on this transaction. exhibit 37 was a
transaction of 1953 and the rate adopted there was about rs. 5 per square yard. a party to the transaction was examined
as a witness. as numbericed by the learned civil judge the
property was located at a distance of about there furlongs
from the acquired land. the learned civil judge stationed at
aurangabad was certainly in a better position to take
judicial numberice of the location of important landmarks
within aurangabad than the learned judges of the bombay high
court or even the judges of this companyrt sitting at a long
distance from the place where the lands are situated. exhibit 42 is a saledeed of 1960 and keeping in view the
extent of lands sold and the companysideration per square yard
the rate worked out at rs. 2.25. the purchaser had been
examined as a witness and the land has been found to be
about
half a furlong away from the acquired land. the learned
civil judge also relied upon a letter of the companylector of
aurangabad addressed to the deputy director of excise
department wherein it was indicated that the price of land
in the area was about rs. 5 per square yard and that was
stated with reference to some land near the railway station. the acquired land is admittedly number far away from the
railway station. the learned civil judge did in fact state in his order
that the lands of yusufuddin were situated by the side of
the road leading from panchakki to bhadkal gate. the
historical monument of panchakki has been stated to be
located by the side of the acquired land. a state hotel has
come up number far away from the land. the companyrt took judicial
numberice of the fact that aurangabad city had developed
rapidly following police action which brought about
accession of the nizams state to india. aurangabad had
become the regional headquarters of a zone of the state. the
city had been industrially developing. therefore the lands
in question had potential value which had to be kept in view
in the matter of fixing the companypensation under the land
acquisition act. admittedly the lands of yusufuddin and the lands
belonging to kausalya devi group are in one adjacent tract. therefore it would number be improper to assume particularly
in the absence of any companytrary evidence from the side of the
state that there was numbergreat disparity in the quality of
lands and that all these lands were substantially of similar
type. two principles relating to the matter of fixation of
compensation relevant for the present purpose may be kept in
view. when large tracts are acquired the transaction in
respect of small properties do number offer a proper guideline. therefore the valuation in transactions in regard to
smaller property is number taken as a real basis for
determining the companypensation for larger tracts of property
 see prithvi raj taneja v. state of madhya pradesh and
ors 1 . padma uppal etc. v. state of punjab ors 2 . in
certain other cases this companyrt indicated that for
determining the market value of a large property on the
basis of a sale transaction for smaller property a deduction
should be given. in special land acquisition officer
bangalore v. t. adinarayan setty  3  a reduction of 25
was indicated while there are certain other cases where the
view is that the reduction should be to the extent of 1/3. again in the very scheme for fixation of companypensation
provided by the land acquisition act there is bound to be
some amount of arbitrariness. the acquisition is deemed to
be a statutory purchase and on the basis of evidence the law
requires an assumed companysideration to be determined. keeping
in view the fact that acquisition is of companypulsory nature a
solatium of 15 on the valuation is provided. bearing these
considerations in view and taking into account the fact that
the lands in question were located in a developed part of
aurangabad and had companysiderable potential value we proceed
to fix the market value of the property. one acre of land is
equal to 4840 square yards. the learned civil judge had
maintained a distinction between the two classes of lands. we take numbere of that fact also in the matter of determining
the companypensation. we however do number propose to indicate
separate valuations for the two classes of lands. taking an
overall picture of the matter we direct companypensation to be
fixed at the rate of rs. 1.50 per square yard or rs. 7260
per acre for all the lands of the present appellants
acquired by the numberification in question. over and above
this amount the appellants shall be entitled to statutory
solatium of 15 as also interest at the rate of 6 per annum
on the additional companypensation from the date of
dispossession till payment thereof. we direct the companylector
to work out the companypensation on the basis indicated above
within two months from today. if the amount so determined is
number paid within three months thereafter the interest on the
additional companypensation shall be at the rate of 12 per
annum till payment is made.


civil appellate jurisdiction civil appeal number 351 of 1971.  appeal by special leave from the judgment order the 19th
numberember 1970 of the delhi high companyrt in c.w. number 373 of
1969 . c. agarwala for the appellant. dr. anand prakash and m. k. d. namboodri for respondent number
1.
the judgment of the companyrt was delivered by
jaswant singh j. this appeal by special leave is directed
against the judgment and order dated numberember 19 1970 of
the high companyrt of delhi rendered in civil writ petition number
373 of 1969 setting aside the order dated april 23 1969 of
the additional industrial tribunal delhi rejecting
respondent number 1s application under section 33 2  of the
industrial disputes act 1947  hereinafter referred to as
the act  seeking approval of its order of the appellants
dismissal from service passed during the pendency of an
industrial dispute. the facts and circumstances giving rise to this appeal are
behind the premises situate on najafgarh road delhi of
respondent number 1 which is a unit of the delhi cloth and
general mills companypany limited  hereinafter referred to as the
company  there is a plot of land admeasuring 181 acres
ownership whereof was transferred in favour of the companypany
by the erstwhile delhi improvement trust  number companystituted as
delhi development authority  vide sale deed dated may 20
1964. the plot being adjacent to the premises of respondent
number 1 the same was being looked after by the management of
the respondent which also companystructed some quarters thereon
for the use of its employees. there are also some jhuggies
 hutments  standing on the land in which live 172 families
out of which 70 are of the employees of respondent number 1 and
the rest are of some outsiders. after taking over the watch
and ward of the plot the management of respondent number 1
posted some sentries to prevent encroachment and
unauthorised companystruction thereon. on the companypanys taking
up companystruction of a boundary wall on the aforesaid plot in
april or may 1967 the appellant who was the president
 pradhan  of the jhuggi jhoupari sudhar sabha and a few
other jhuggi dwellers brought a suit being suit number 418 of
1967 in the companyrt of the sub-judge first class delhi for
injunction restraining the companypany and respondent number 1 from
constructing the boundary wall and from evicting them from
the jhuggies. on the basis of the voluntary statement made
on behalf of the companypany to the effect that it would number
evict the appellant and his companyplaintiffs except by a
due process of law the sub-judge issued a temporary
injunction restraining the companypany and respondent number 1 from
evicting the appellant and his companyplaintiffs except by a due
process of law but refused their prayer for injunction
restraining the companypany and respondent number 1 from building
the boundary wall. the sub-judge however directed the
company and respondent number 1 to leave 10 feet wide gate for
the passage of the appellant and his companyplaintiffs. aggrieved by the rejection of their player with regard to
issue of injunction regarding companystruction of the boundary
wall the appellant and his companyplaintiffs preferred an
appeal to the senior sub-judge by his order dated february
28 1968 observing
the dispute between the parties is only
regarding the companystruction of the boundary
wall along the najafgarh drain. this boundary
wall is admittedly sought to be companystructed by
the defendant-respondents in their own land
and the plaintiffs appellants did number claim
any right of ownership in the site on which
the jhuggis existed or on which the wall in
question is sought to be companystructed. the
applicants had number claimed any right of
easement or irrevocable licence against the
construction of this wall and so they do number
appear to have any right to companypel the defen-
dants-respondents number to companystruct this wall. the learned companynsel for the appellant has
contended before me that their passage from
the jhuggis towards the najafgarh drain would
be obstructed by the companystruction of this
wall. the learned trial companyrt it appears
ordered the defendant to leave a cate of about
10 width for the passage of the jhuggi
dwellers while companystructing the boundary
wall in question. the learned trial companyrt
exercised the discretion keeping in view the
right of the defendants to companystruct the
boundary wall in their own land as also the
convenience of plaintiffs-appellants. there
is hardly any justification to interfere with
the discretion exercised by the learned trial
court. on the evening of march 2 1968 shyam singh assistant
security officer of respondent number 1 received a report from
sentry dharam singh alleging that one sheo ram had started
making an unauthorised companystruction on the aforesaid plot. in the discharge of his official duties of preventing
encroachment and unauthorised companystruction on the immovable
property belonging to he companypany shyam singh proceeded to
the spot accompanied by two members of his staff to
investigate info the matter. on reaching the spot and
finding sheo ram companystructing a new jhuggi in front of his
existing jhuggi shyam singh pleaded with the former and
asked him to desist from companystructing the new jhuggi. while
he was so engaged the appellant who was also an employee of
respondent number 1 made his appearance alongwith eight to ten
jhuggi dwellers and adopting a very aggressive attitude
intervened on behalf of sheo ram and questioned the
authority of shyam singh who was senior to him to make
inquiries in regard to the companystruction during the pendency
of the aforesaid litigation. he also manhandled shyam
singh hurled highly provocative invectives at him and his
companions and bade them to quit on pain of dire
consequences. unnerved by the threats held out by the
appellant shyam singh left the place along with his
security personnel and hastened to make a report of the
incident to his immediate superior which led to-the
suspension of the appellant and issue to him of a numberice by
general manager of respondent number 1 calling upon him to show
cause as to why he should number be dismissed for his aforesaid
misbehaviour towards and attempt to assault shyam singh who
was discharging his official duties which were acts subver-
sive of discipline within the meaning of standing order
27 1  applicable to him. the appellant submitted his
explanation denying the charges levelled against him and
questioning the authority of tile respondent to charge sheet
him in respect of an incident which was purely private. number
satisfied with the explanation tendered by the appellant
the management of respondent number 1 detailed two of its
officers to inquire into the aforesaid charges against the
appellant. on companypletion of the inquiry in accordance with
the standing orders the enquiry officers submitted a
unanimous report observing therein that it was number the
appellants case that either sheo ram or any other person
was being evicted from any of the jhuggies standing on the
area which was admittedly knumbern as d.c.m. chemical works
jhuggi area that it was clear that dharam singh a member
of the watch and ward staff placed on duty to protect the
property pt the companypany had numbericed sheo ram companystructing
new walls in front of his jhuggi that on reaching the spot
on the evening of march 2 1968 shyam singh saw the freshly
constructed walls of the height of about 5 and some
building material lying in front of sheo rams jhuggi and
was accordingly justified in investigating into the matter
that when shyam singh was telling sheo ram that he should
number companystruct a new jhuggi or extend the jhuggi the
appellant questioned the authority of shyam singh and
abused and manhandled him and in so doing was guilty of
misconduct within the meaning of standing order 27 1 . it
would be profitable to refer to the companycluding portion of
the report which reads thus
shri shyam singh is a member of the security
staff and a responsible officer of the
company. shri shyam singh is an officer of
the companypany and is senior to shri lalla ram. in the discharge of official duties of
protecting the property of the companypany and
preventing its misuse if shri shyam singh
wanted to investigate into the matter reported
to him by shri dharam singh he was perfectly
within his rights. the action of shri lalla
ram is certainly number justified in so far as he
intervened and obstructed shri shyam and other
security staff and in the process shri lalla
ram questioned the authority of a superior
officer security staff called him and his
sepoys gondas caught hold of him by his hand
and pushed him and threatened him. shri lalla
ram also said that they were number afraid of the
uniform i.e. security staff who are meant for
safeguarding the property
of the companypany and enforcing the discipline. under the circumstances we companyclude that shri
lalla ram companymitted the acts alleged. against
him namely obstructing the assistant
security officer in the discharge of official
duties and threatening him and catching hold
of him by hand and thereby companymitted acts
subversive of discipline a misconduct under
the standing order number 27 1 . we find shri
lalla ram guilty of the charge. agreeing with the findings of the enquiry officers that the
aforesaid acts companymitted by the appellant were subversive of
discipline and companystituted misconduct as companytemplated by
standing order 27 1  the general manager of respondent number
1. passed an order on may 2 1968 dismissing the appellant
from service. since however an industrial dispute was
pending the general manager directed the appellant to take
his final dues together with one months pay in lieu of
numberice and made an application on the same day to the
industrial tribunal delhi seeking its approval of the
order of the appellants dismissal as required by section 3
3  2   b  of the act. while holding that the enquiry officers were number biased
against the appellant that there was numberviolation of the
principles of natural justice and that it companyld number be said
that the findings of the enquiry officers were number based
upon any evidence or that the same were perverse the
additional industrial tribunal delhi refused by its order
dated april 23 1969 to accord its approval to the
appellants dismissal on the grounds that the disciplinary
action taken against the appellant was misconceived that
since there was numberrational companynection between the
employment of the appellant and shyam singh in regard to
the affairs of the d.c.m. chemical works standing order
27 1  was number attracted in the present case which was really
a case of civil dispute between the companypany and jhuggi
dwellers who were long being pressurized to surrender
possession of the area to the companypany and the machinery of
security staff of d.c.m. chemical works was pressed into
service for that purpose. aggrieved by the aforesaid order of the additional
industrial tribunal respondent number 1 moved the high companyrt
of delhi under article 226 of the companystitution. the high
court allowed the petition holding that since there was a
clear finding by the enquiry officers about the existence of
rational companynection between the aforesaid incident and the
duties of the appellant herein and shyam singh and there was
numberhing in the order of the tribunal to show that the
enquiry officers had arrived at that finding without any
evidence it was number open to the tribunal to companye to a
different companyclusion on the facts or to hold that the
present was a case of victimisation and then to refuse its
approval. in this view of the matter the high companyrt
quashed the order of the additional industrial tribunal and
directed it to companysider the aforesaid application of
respondent number 1 in the light of its judgment. number
satisfied with this order the appellant has companye up in
appeal to this companyrt under article 136 of the companystitution. appearing for the appellant mr. s. c. aggarwal has urged
that since the quarrel between- the appellant and shyam
singh was purely private and the misconduct attributed to
the appellant had numberrational companynection with his employment
and that of shyam singh the dismissal of the appellant
under standing order 27 1  was number valid and legal that the
additional tribunal was well within its authority to refuse
to accord its approval to the action taken by the management
of respondent number 1 in dismissing the appellant and that the
order under appeal which is erroneous cannumber be sustained. he has in support of his companytention referred us to two
decisions of this companyrt in tata oil mills company limited v. its
workmen 1  and agnani  w.m.  v. badri das ors.  2
in agnanis case  supra  this companyrt held as under
it is true that if a domestic enquiry is
properly held and the employer terminates the
services of his employee the industrial
tribunal dealing with industrial disputes
arising out of such dismissal is number
authorized to sit in-appeal over the findings
of the enquiry companymittee or to examine the
propriety of the ultimate order of dismissal
passed by the employer. though it is true that private. quarrel
between an employee and a stranger with which
the employer is number companycerned as in agnanis
case  supra  falls outside the categories of
misconduct it cannumber be reasonably disputed
that acts which are subversive of discipline
amongst employees or misconduct or
misbehaviour by an employee which is directed
against--anumberher employee of the companycern may
in certain circumstances companystitute misconduct
so as to form the basis of an order of
dismisal or discharge. it cannumber also be
disputed that the extent of jurisdiction
exercisable by an approving authority under
section 3 3  2   b  of the act is very limited
as has been clearly and succinctly pointed out
by this companyrt in a number of decisions. in
lord krishna textile mills v. its workmen 3
this companyrt after referring to its earlier
decisions and explaining the distinction
between permission and approval observed
as follows
therefore putting it negatively the
jurisdiction of the appropriate industrial
authority in holding an enquiry under s. 33
 2   b  cannumber be wider and is if at all
more limited than that permitted under s.
33 1  and in exercising its powers under s.
33 2  the appropriate authority must bear in
mind the departure deliberately made by the
legislature in separating the two classes of
cases falling under the two sub-sections and
in providing for express permission in one
case and only approval in the other. it is
true that it would be companypetent to the
authority in a proper case to refuse to give
approval for section 33 5  expressly empowers
the authority to pass such order in relation
to the application made before it under the
proviso to
 1  1964 7 s.c.r. 555.  2  1963 1 l.l.j. 684.  3  1961 3 s.c.r. 204.
s. 33 2  b  as it may deem fit it may
either approve or refuse to approve it can
however impose numberconditions and pass no
conditional order. x x x in view of the
limited nature and extent of the enquiry
permissible under s. 33 2  b  all that the
authority can do in dealing with an employers
application is to companysider whether a prima
facie case for according approval is made out
by him or number. if before dismissing an
employee the employer has held a proper
domestic enquiry and has proceeded to pass the
impugned order as a result of the said
enquiry all that the authority can do is to
enquire whether the companyditions prescribed by
s. 33 2  b  and the proviso are satisfied or
number. do the standing orders justify the order
of dismissal? has an enquiry been held as
provided by the standing orders ? have the
wages for the month been paid as required by
the proviso ? and has an application been
made as prescribed by the proviso ? in anumberher case between kalyani  p. h.  and
air france calcutta 1  wanchoo j.  as he
then was  speaking for a bench of five judges
of this companyrt said
if the enquiry is number defective the labour
court has only to see whether there was a
prima facie case for dismissal and whether
the employer had companye to the bona fide company-
clusion that the employee was guilty of
misconduct. thereafter on companying to the
conclusion that the employer had bona fide
come to the companyclusion that the employee wa
guilty i.e. there was numberunfair labour
practice and numbervictimization the labour
court would grant the approval which would
relate back to the date from which the em-
ployer had ordered the dismissal. if the
enquiry is defective for any reason the
labour companyrt would also have to companysider for
itself on the evidence adduced before it
whether the dismissal was justified. however
on companying to the companyclusion on its own
appraisal of evidence adduced before it that
the dismissal was justified its approval of
the order of dismissal made by the employer in
a defective enquiry would still relate back to
the date when the order was made. in central bank of india limited new delhi v.
shri prakash chand jain 2  this companyrt laid
clown
these decisions of this companyrt make it clear
that when an industrial tribunal is asked to
give its approval to an order of dismissal
under s. 33  2   b  of the act it can dis-
regard the findings given by the enquiry
officer only if the findings are perverse. the test of perversity that. is indicated in
these cases is that the findings may number be
supported by any legal evidence at all a
finding by a domestic tribunal like an enquiry
officer can be held
 1  19631 l.l.j. 679.  2  1969 1 s.c.r. 735. -211sci/78
to be perverse in those cases also where the
finding arrived at by the domestic tribunal is
one at which numberreasonable person companyld have
arrived on the material before it. the position that emerges from the above quoted decisions of
this companyrt may be stated thus in proceedings under section
33 2  b  of the act the jurisdiction of the industrial
tribunal is companyfined to the enquiry as to  i  whether a
proper domestic enquiry in accordance with the relevant
rules standing orders and principles of natural justice has
been held  ii  whether a prima facie case for dismissal
based on legal evidence adduced before the domestic tribunal
is made out  iii  whether the employer had companye to a bona
fide companyclusion that the employee was guilty and the
dismissal did number amount to unfair tabour practice and was
number intended to victimise the employee regard being had to
the position settled by the decisions of this companyrt in
bengal bhatdee companyl companyv. ram probesh singh 1  titaghur
paper mills company limited v. ram naresh kumar 2  hind
construction engineering company limited v. their workmen 3
workmen of messrs firestone tyre rubber companypany of india

ltd. v. management ors 4  and eastern electric and
trading company v. baldev lal 5  that though generally speaking
the award of punishment for misconduct under the standing
orders is a matter for the management to decide and the
tribunal is number required to companysider the propriety or
adequacy of the punishment or whether it is excessive or too
severe yet an inference of mala fides may in certain cases
be drawn from the imposition of unduly harsh severe
unconscionable or shockingly disproportionate punishment

whether the employer has paid or offered to pay wages
for one month to the employee and  v  whether the employer
has simultaneously or within such reasonably short time as
to form part of the game transaction applied to the
authority before which the main industrial dispute is
pending for approval of the action taken by him. if these
conditions are satisfied the industrial tribunal would
grant the approval which would relate back to the date from
which the employer had ordered the dismissal. if however
the domestic enquiry suffers from any defect or infirmity
the tabour authority will have to find out on its own
assessment of the evidence adduced before it whether there
was justification for dismissal and if it so finds it will
grant approval of the order of dismissal which would also
relate back to the date when the order was passed provided
the employer had paid or offered to pay wages for one month
to the employee and the employer had within the time
indicated above applied to the authority before which the
main industrial dispute is pending for approval of the
action taken by him.  1  1964 1 s.c.4.709.  2  1961 l.l.j. 511.  3  19652 s.c.r. 83.  4  1973 3 s.c.r. 587.  5  1975 lab. i.c. 1435  s.c. . let us number see whether the aforesaid requirements are
satisfied in the present case or number. as stated earlier
the enquiry officers had after a regular enquiry property
made according to the requirements of the standing orders
and principles of natural justice companye to a categoric and
bona fide companyclusion that the appellant obstructed shyam
singh in the execution of his legitimate official duties  of
protecting the immovable property of the companypany and
preventing its improper and unauthorised use  by abusing
threatening and roughly handling him and thereby companymitted
misconduct as companytemplated by standing order 27 1 . the
industrial tribunal had itself also clearly found that the
enquiry officers were number biased against the appellant that
the domestic enquiry held against the appellant was number
violative of the principles of natural justice and that it
could number be said that the findings of enquiry officers were
number based upon evidence or were perverse. the material on
record also disclosed that the employer paid one months
wages to the appellant and simultaneously made an
application to the specified authority before which the main
industrial dispute was pending for grant of approval of the
dismissal of the appellant. further the misconduct for
which the disciplinary action was taken against the
appellant was undoubtedly directed against shyam singh to
prevent him from investigating into a matter relating to
immovable property belonging to the companypany which he was
bound to protect in discharge of the duties which devolved
upon him as a security officer. in face of all the
aforesaid factors which make out a strong prima facie case
against the appellant it is difficult to understand how the
additional industrial tribunal companyld legitimately ignumbere the
bona fide findings of the enquiry officers which it had
itself endorsed by holding that there was numberrational nexus
between the appellants misconduct and his employment and
that of shyam singh and withhold its approval of the action
taken by the management of respondent number 1 on a careful
consideration of the entire facts and circumstances of the
case we are therefore clearly of the view that the
requisite nexus was there and the industrial tribunal
unauthorisedly assumed the role of an appellate authority
and exceeded the well defined limits of its jurisdiction in
refusing to accord its approval of the action taken against
the appellant by holding number on the basis of any legal
evidence but purely on the basis of companyjectures and surmises
that the present was a case of victimisation. we would like
to call attention at this stage to the decisions of this
court in tata engineering locomotive company limited v. prasad

c.  anr.  1  and hamdard dawakhana wakf v. its workmen
ors.  2  and reiterate and re-emphasize that numberquestion of
victimisation or management having a bias against the
appellant can arise once it is held that the findings of
misconduct alleged against the workman were properly arrived
at and the domestic enquiry was in numberway vitiated. we
would also like to emphasize that it is number necessary as
stressed by the learned companynsel for the appellant that both
the victim and the delinquent workman should be engaged in
the performance of their official duties when the act which
is the subject
 1  19692l.l.j.799.  2  1962 2 l.l.j. 772.
matter of misconduct is said to have been companymitted. it is
sufficient if the victim and the delinquent workman are
both employees of the same companycern and the misconduct is
directed against the former while he is acting in the
discharge of the duties imposed on him by virtue of his
office. thus the jurisdiction of the industrial tribunal
being a limited one as stated above and all the essential
requisites of the proviso to section 33 2  b  of the act
being present in the instant case the industrial tribunal
was number in our opinion justified in withholding its
approval and the high companyrt was perfectly right in passing
the impugned judgment and order. for the foregoing reasons we find numbermerit in this appeal
which is dismissed but without any order as to companyts. we have disallowed companyts to express our thought that
numberwithstanding the gravity of the misconduct the management
could.-be a little magnanimous while awarding punishment. the broad guideline which persuaded us number to interfere was
the reluctance of this companyrt to demolish a finding by the
high companyrt unless there was something seriously wrong with
it and our further view that unless there is a serious error
or infirmity as we have indicated earlier with the enquiry
or the order by the disciplinary authority the tribunal
should number interfere.


civil appellate jurisdiction civil appeal number 579 of 1965.
appeal from the judgment and decree dated april 20
28 1960 of the bombay high companyrt  number gujarat high companyrt
in appeal number 172 of 1956 from original decree. s. bindra m.s.k. sastri and s.p. nayar for the
appellant. t. desai y.s. chitale and d.n. misra. for the respondent. the judgment of the companyrt was delivered by
bachawat j. in january 1948 in view of the imminent
constitutional changes in the baroda state it was
considered likely that the services of the diwan sri
sudhalkar the appellant and sri gaekwad the three official
members of the executive companyncil of the state would be
prematurely terminated. the respondent was then drawing a
salary of rs. 2000/- per month and was to retire on
february 14 1952 on reaching the superannuation age of 56
years. on january 28 1948 his highness the maharaja of
baroda enhanced the respondents salary to rs. 2500/- per
month. by separate orders the salaries of other official
members also were enhanced. by a huzur order dated
february 8 1948 the maharaja fixed the pension and other
retirement benefits of the respondent and sri gaekwad. the order was in these terms --
his highness the maharaja saheb has
been pleased to order that in the event of
premature retirement of the government
members messrs. d.v. gaekwad and
chandrachud they will get forthwith as
compensation an amount equivalent to the total
amount they would have received had they
continued in service up to. the date of
retirement and a full pension of rs. 500 per
month from the date of the premature
retirement. mr. d.v. gaekwads salary is
raised to rs. 2000/- from the date of his
confirmation as naib dewan. on the same date the maharaja by a separate order fixed
the pension and retirement benefits of sri sudhalkar. on
may 18 1948 the maharaja directed the companypulsory
retirement of the respondent with effect from june 1
1948. soon thereafter the respondent drew from the state
treasury rs. 95196/4/- on account of companypensation
allowance. on june 1 1948 he retired
from service. on the same date dr. jivraj mehta became the
diwan and president of the executive companyncil in place of sri
sudhalkar. on the representations of dr. jivraj mehta the
maharaja passed anumberher huzur order on july 22 1948
modifying his previous orders and directing that the
respondent and the other officials would draw pension only
as and when they would reach the age of retirement and that
the respondent would in addition draw the salary to which he
might be eligible under the account rules. in october 1948
there was companyrespondence touching the huzur orders between
the maharaja and dr. jivraj mehta. on april 22 1949 the
executive companyncil of the state of baroda headed by dr.
jivraj mehta purported to review and set aside the huzur
orders with respect to payment of companypensation to the
retiring officials and directed that  1   the respondent
would get 4 months privilege leave salary and as from april
1 1949 the pension of rs. 500/- per month sanctioned by the
maharaja  2  the amount received by the respondent as
compensation be forfeited to the state and returned by him
to the treasury  3  rs. 77416/consequently due from him
after taking into account his salary and pension up to march
31 1949 be recovered from him under s. 148 of the baroda
land revenue companye. pursuant .to thistle the respondents
properties were attached on april 26 1949. the respondent
was companypelled to refund to the state treasury rs. 55000/-
on april 27 1949 and rs. 10000/on april 29 1949. on march
14 1952 the companylector of baroda sent a numberice to the
respondent demanding payment of the balance of rs. 12416/-. the respondent companytinued to draw pension at the rate of rs. 500/per month from april 1 1949. on april 17 1952 he gave
numberice of his intention to file the present suit under s. 80
of the companye of civil procedure. on june 23 1952 he
instituted the suit against the state of bombay asking for a
declaration that the huzur order dated february 8 1948 as
modified by the huzur order dated july 22 1948 was valid
and binding on the defendant a declaration that the order
of the executive companyncil dated april 22 1949 was invalid
an injunction restraining the defendant from recovering rs. 12416/- and a decree for rs. 65000/- and interest thereon
totaling rs. 77300/- future interest and companyts. on august
31 1955 the trial companyrt decreed the suit. on appeal the
high companyrt held that the respondent was entitled to recover
rs. 65000/only without interest and was liable to refund
rs. 17250/- drawn on account of pension from april 1. 1949
up. to february 14 1952. companysequently the high companyrt
reduced the money decree to rs. 47750/- give proportionate
costs and companyfirmed the rest of the decree. the present
appeal has been filed by the state of gujarat after
obtaining a certificate from the high companyrt. it is necessary at this stage to refer to the
constitutional and political changes culminating in the
merger of baroda state in the
province of bombay. the maharaja of baroda enjoyed
internal. sovereignty in the state under the suzerainty of
the british crown. in 1940 the maharaja enacted the
government of baroda act 1940  act number vi of 1940 . section 3 provided that baroda would companytinue to be governed
by the maharaja and that all rights authority and
jurisdiction appertaining to its government was exercisable
by him except as provided in the act or as may be otherwise
directed by his highness. section 4 preserved all the
maharajas powers legislative executive and judicial in
relation to the state and its government and his right and
prerogative to make laws and issue proclamations orders
and ordinances by virtue of his inherent authority. section 5 vested the executive authority of the state in an
executive companyncil companysisting of the dewan and other members
chosen by the maharaja and holding office during his
pleasure subject to the other provisions of the act and the
directions given by the maharaja. section 18 d  provided
that numberbill affecting any order passed by the maharaja in
exercise of his prerogative companyld be moved in the dhara
sabha without the previous sanction of the maharaja. section 32 f  provided that pensions and gratuities
sanctioned by the maharaja would be expenditure charged on
the revenues of the state. on august 15 1947 the indian
independence act 1947 was passed and the paramountcy of the
british crown lapsed. on the same date the state of baroda
acceded to the dominion of india. under the instrument of
accession the maharaja of baroda ceded to the dominion
legislature the power to legislate for the state of baroda
with respect of defence external affairs and
communications. the advent of independence in india gave
momentum to the popular movement for transfer of power from
the maharaja to the people and for formation of a
responsible government in the state. on january 9 1948 the
maharaja issued a proclamation directing the formation of a
body elected on the basis of adult franchise frame a
constitution for the state subject to certain reservations
and annumberncing his intention to appoint popular
representatives to the executive companyncil. by anumberher
proclamation dated august 25 1948 the maharaja annumbernced
that  1  the companystitution framing assembly would have full
and unrestricted authority to frame a companystitution for the
state in respect of all matters and subjects  2  the entire
executive authority of the state would immediately vest in
the executive companyncil the government of baroda act would
stand amended accordingly and the words or as may be
otherwise directed by his highness occurring in s. 3 and
the whole of s. 4 of the act would be deemed to be omitted
on september 16 1948 the maharaja promulgated the baroda
state executive rules. rule 6 provided that the executive
council shall have the entire executive authority in regard
to the administration of the state in all matters without
any reservation. on march 21 1949 the maharaja executed
the baroda merger agreement whereby
he ceded to the dominion government full authority
jurisdiction and powers for and in relation to the
governance of the state and agreed to transfer the
administration of the state to the dominion government on
may 1 1949. on may 1 1949 the administration of the state
was made over to the dominion government. as from that date
all sovereign powers of the maharaja of baroda ceased and
the dominion government acquired full and exclusive extra
provincial jurisdiction for and in relation to the
governance of the state of baroda. by a numberification number
101-p dated may 1 1949 the central government in exercise
of its powers under s. 3 2  of the extra-provincial
jurisdiction act 1947 delegated to the provincial
government of bombay its aforesaid extra provincial
jurisdiction including the powers companyferred by s. 4 of that
act to make orders for the exercise of the jurisdiction. by
numberification number 4530/46f of the same date the
government of bombay in exercise of the powers companyferred by
s. 4 of the extra provincial jurisdiction act 1947 repealed
the provisions of the government of baroda act excepting
ss. 1 2 and 36 to 45 with immediate effect. on the same
date the government of bombay promulgated the administration
of the baroda state order paragraph 3 of the order vested
the executive authority of the state in a special
commissioner subject to the supervision and companytrol of
the bombay government. paragraph 4 i  b  provided for the
continuance of  a  of any law or  b  of any numberification
order scheme rule form or bye-law issued made or
prescribed under any law as were in force immediately before
may 1 1949 in the baroda state. on july 23 1949 the
government of bombay promulgated the bombay state
 application of laws  order 1949. paragraph 3 of the order
provided for the extension and companytinuance of certain laws
to the baroda state. paragraph 5 repealed ss. 1 2 and 36
to 45 of the government of baroda act and certain other
enactments. paragraph 5 iii  a  provided that the repeal
would number affect any right title obligation or
liability already acquired accrued or incurred or any
remedy or proceeding in respect thereof. on july 27 1949
the governumber general in exercise of his powers under s. 290a
of the government of india act 1935 promulgated the states
merger  governumbers provinces  order 1949. paragraph 3 of the
order provided that baroda would be merged in the province
of bombay and administered in all respects as if it formed
part of that province. paragraph 4 provided for the
continuance of laws then in force in the merged state. paragraph 7  1   provided that all liabilities in respect of
such loans guarantees and other financial obligations of
the dominion government as arose out of the governance of a
merged state would as from august 1 1949 be liabilities of
the absorbing province unless the loan guarantee or other
financial obligation was relatable to central purposes. paragraph 9 provided that any proceedings which if the order
had number been passed
night lawfully have been brought in the merged state against
the dominion might in the case of any liability arising
before august 1 1949 be brought  a  against the dominion if
the proceedings companyld have been brought against the dominion
had the liability arisen after that date and  b  otherwise
against the absorbing province. the questions arising for determination in this appeal
are as follows --
 1   was the order of the executive companyncil dated april
22 1949 ultra vires its powers and invalid and number binding
on the respondent  2  was the government of baroda liable
to pay the sum of rs. 65000/- to the respondent and  3
if so has the liability devolved upon the state of gujarat. the executive companyncil rules made by the maharaja of
baroda on september 16 1948 vested in the executive companyncil
the entire executive authority in regard to the
administration of the baroda state in all matters without
any reservation. the executive companyncil had very wide powers
but in our opinion they had numberauthority to override and
rescind the huzur orders passed by the maharaja himself. the prerogative and inherent powers of the maharaja was number
delegated to the executive companyncil. the maharaja was still
the sovereign ruler. the members of the executive companyncil
were responsible to him and held office during his pleasure. numberappeal lay from his order to the executive companyncil on
the companytrary under rule 46 of the privy companyncil rules
promulgated on december 18 1947 an appeal lay to the
maharaja from an order passed by the executive companyncil. in
view of s. 18 d  of the baroda companystitution act 1940 even a
legislative bill affecting an order passed by the maharaja
in the exercise of his prerogative rights companyld number be moved
in the dhara sabha without his previous sanction. under s.
32 f  pensions and gratuities sanctioned by the maharaja
were charged on the revenues of the state. the fluzur order
was passed by the maharaja on february 8 1948 in the
exercise of his prerogative and inherent powers. the order
was executed and the monies were paid under it to the
respondent. the executive companyncil had numberauthority to revoke
the huzur order and to forfeit the monies. we hold that the
order of the executive companyncil dated april 22 1949 was
ultra vires its powers and was illegal and number binding upon
the respondent. it is number companyceded that the direction in the order dated
april 22 1949 for the recovery of monies under s. 148 of
the baroda land revenue companye was illegal. that section did
number allow recovery of moneys payable under an order of the
executive
council. the attachment levied on the respondents
properties was unlawful. the recovery of rs. 65000/- from
the respondent under the invalid order of the executive
council cannumber be justified as an act of state. the companyrts
below rightly found that the respondent was companypelled to pay
rs. 65000/- under companyrcion. the result of the illegal
recovery was that to the extent of rs. 65000/- the ii
ability of the baroda government under the huzur order dated
february 8 1948 remained outstanding. the main question arising in the appeal is whether the
liability the baroda government under the huzur order dated
february 8 1948 devolved upon the successor governments
after the merger of the baroda state on may 1 1949. the
view which currently prevails in this companyrt is that in cases
where the government of india has acquired the territory of
a sovereign indian state either by companyquest treaty
cession or otherwise the privileges and rights obtained from
the predecessor state cannumber be enforced by action against
the government of india see m s. dalmia dadri cement company v.
the companymissioner of income-tax 1   cession of jind  pema
chibar v. union of india a   companyquest of daman  number can it
be sued in the municipal companyrts for the debts and
contractual liabilities of the predecessor see jagannath
agarwala v. state of orissa 3   cession of mayrbhunj  firm
bansidhar premsukhdeo v. state of rajasthan 4   bharatpur
unless it has chosen to recognise the right privilege
debt or liability by legislation agreement or otherwise. the rule extends to the acts of the predecessor state after
its accession to the dominion of india on august 15 1947
and before its companyplete merger in the dominion. in state of
gujarat v. fiddali 5  the ruler of sant state issued a
resolution or tharao granting certain forest rights on march
12 1948 after the accession of the state to the dominion. on june 10 1948 he transferred the administration of the
state to the dominion under a merger agreement dated march
19 1948. the companyrt held that the tharao was number binding
upon the successor government. it was said that the rulers
of the indian states parted with their sovereignty in
successive stages firstly on accession and finally on
merger. as a result of accession the dominion of india
acquired power to legislate for the territories of the
acceding state in respect of defence external affairs and
communications. under s. 5 of the indian independence act
the dominion was as from august 15 1947 a union companyprising
the acceding state. but the acceding state companytinued to
retain its separate existence and individual sovereignty
until its companyplete merger in the dominion.  1  1959 s.c.r. 729.  2  1966 1 s.c.r. 357.  3  1962 1 s.c.r. 205.

a.i.r. 1967 s.c. 40.  5  1964 6 s.c.r. 461.
the question then is whether the successor governments
recognized the rights and liabilities under the huzur order
dated february 8 1948. the onus of proving the recognition
is upon the respondent see valesinghji joravarsingji v.
secretary of state for india 1 . the recognition may be
either express or may be implied from circumstances and
evidence appearing from the mode of dealing with those
rights of the new sovereign see state gularat v.
fiddali 2 . on behalf of the respondent it was argued that the
huzur order dated february 8 1948 was a law and as such was
recognised and companytinued in force by the government of
india. we axe unable to accept this companytention. a grant
made by the ruler of an indian state is number a law see state
of gujarat v. fiddali 2  461  grant of forest rights  r.n. pratap singh deo v. state of orissa a   grant of khorposh
allowance  union of india v. gwalior rayon silk
manufacturing  weaving  company 4   grant of exemption from
taxation  state of madhya pradesh v. lal bhargavendra
singh 5   grant of maintenance allowance  number is an
agreement executed by the ruler a law see maharaja shri
umaid mills limited v. union of india 6 . accordingly it was
held in state of madhya pradesh v. company. ram pal 7  that an
order granting retirement pension in relaxation of the state
pension and gratuity rules was number a law. the huzur order
dated february 8 1948 did number lay down a rule companyduct for
the official members of the executive companyncil generally. it
fixed the retirement benefits of the respondent and of
gaekwad and enhanced gaekwads salary. a separate order
fixed the retirement benefits of sudhalkar the other
official member. the order companycerning the respondent was an
executive act and had numbere of the characteristics of law
unlike other laws it was number published in the adhya patrika
or the official gazette of baroda state. we hold that the
order was number a law. the next question is whether the baroda merger agreement
dated march 21 1949 recognised the rights and liabilities
under the huzur order dated february 8 1948. number the
articles of the merger agreement may furnish valuable
evidence of the affirmance of rights companyferred by the
predecessor state see m s. dab mia dadri cement company limited

the companymissioner of income-tax s . in the state of
madhya pradesh v. shyam lal 9  a recognition of those
rights was inferred from articles in merger agreements
providing for the companytinuance of the laws of the merging
state and for the taking over its assets and the liabilities
by the new state. in the present case art. viii of the
merger agreement
 1   1924  l.r. 51 i.a. 357 361.  2  1964 6 s.c.r. 461 at p. 510.  3  1964 7 s.c.r. 112.  4  1964 7 s.c.r. 892.  5  1966 2 s.c.r. 56.  6  1963 supp. 2 s.c.r. 515.  7  1966 2 s.c.r. 53.  8  1959 s c.r. 729 at p. 748.  9  1964 7 s.c.r. 124.
dated march 21 1951 provided --
 1   the government of india hereby guarantees
either the companytinuance in service of the
permanent members of the public services of
baroda on companyditions which will be less
advantageous than those on which they were
serving before the date on which the
administration of baroda is made over to the
government of india or the payment of
reasonable companypensation. the government of india further
guarantees the companytinuance of pensions and
leave salaries sanctioned by his highness
the maharaja to the members of the public
services of the state who have retired or
proceeded on leave preparatory to retirement
before the date on which the administration
of baroda is made over to the government of
india. clause  2  of art. viii applies to the respondent. .he was
member of the public services of the baroda state and he
retired before the date of the merger. it guarantees the
continuance of the pension and leave salary sanctioned to
him by the maharaja. number what does the word pension in
clause  2  of art. viii mean? ordinarily the word pension
means a periodical allowance of money granted by the
government in companysideration or recognition of meritorious
services. the word pension in the pensions act 1871 s.
60 1  g  of the companye of civil procedure1908 and s. 6 g  of
the transfer of property act 1882 implies periodical
payments of money by government to the pensioner see nawab
bahadur of murshidabad v. karnani industrial bank limited 1
pension gratuity and provident fund are three distinct
types of retirement benefits. but the word pension
 pensionem payment  in its widest etymological sense can be
construed as including all payments of every kind and
description to a retiring government servant see secretary
of state v. khemchand jeychand 2 . the term pension is
frequently particularly in recent years used in the broad
sense of retirement allowance or adjusted companypensation for
services rendered see companypus juris secundum vol. 67 page
331 vol. 70 page 425. it has received the wider
connumberation in the definition sections of many modern
statutes.to give a few illustrations the word pension
includes any payment of a lump sum in respect of a persons
employment see fatal accidents act 1959  7 8 eliz 2c. 65  s. 2 2  a superannuation allowance see midwives act
1936  26 geo. 5 1 edw. 8c. 40  s. 2 6  a gratuity and
a return of companytributions to a pension fund with or without
interest thereon or any other addition thereto see
transport act 1947  10 11 geo. 6c. 49  s. 125 1  gas
act 1948  11 12--geo 6c. 67  s. 74 1 . l.r.  1931  58 i.a. 215 219-20.

i.l.r. 1880 4 bom. 432 436.
number clause  1   of article viii of the merger agreement
guarantees payment of reasonable companypensation to officials
whose services are dispensed with by the new government. clause 2 guarantees the companytinuance of pensions and leave
salaries sanctioned by the maharaja to officers who had
retired before the date of the merger. companysidering that the
object of article viii is to guarantee payment of retirement
benefits to retired public servants of the merged state we
are number inclined to give the word pensions a narrow
interpretation. in our opinion the word pensions in
clause 2 of article viii includes the lump sum payable to
the respondent as companypensation under the huzur order dated
february 8 1948 as modified by the huzur order dated july
22 1948. in substance the huzur order directed that the
respondent would get his full salary as his pension from the
date of his premature retirement up to the companypletion of his
superannuation age and allowed him to draw immediately the
entire allowance for the period in one lump sum. the
allowance so payable to the respondent a retiring
government servant in recognition of his past services is
pension within the meaning of cl. 2 of article viii of the
merger agreement. article viii of the merger agreement thus furnishes
strong evidence of recognition by the government of india of
the liability to pay retirement companypensation under the
huzur order dated february 8 1948. we have also numbericed
that the successor governments companytinued the old laws of the
baroda state until they were repealed or altered. the
successor governments resisted the respondents claim on the
ground that the order of forfeiture passed by the executive
council on april 22 1949 was lawful. there was numberquestion
of their disclaiming liability under the huzur order of
february 8 1948 in case it was found that the order of the
executive companyncil dated april 22 1949 was invalid. in the
circumstances we hold that the successor governments
recognized and took over the liability under the huzur order
dated february 8 1958. if so it is number disputed that the
liability has number devolved on the state of gujarat.


criminal appellate jurisdiction criminal appeal number 201 of
1962.
appeal by special leave from the judgment and order dated
february 20 1962 of the bombay high companyrt in criminal
appeal number 1405 of 1961.

l. sareen for the appellant. b. khanna and r. h. dhebar for the respondent. 1963. january 23. the judgment of the companyrt was delivered
by
subba rao j.-this appeal by special leave is directed
against the judgment of a division bench of the bombay high
court setting aside the order of acquittal made by the
additional sessions judge kolaba and companyvicting the
appellant under s. 302 read with s. 34 of the indian penal
code and sentencing him to imprisonment for life. the case of the prosecution may be briefly stated. in the
year 1959 two persons by name ramachandra budhya and govind
dhaya were murdered by some people. in all ii accused
including one deoram maruti patil were brought to
trial and out of them 8 accused including the said deoram
maruti patil were acquitted. during that trial deoram
maruti patils uncle by name vishwanath actively helped
deoram maruti patil in the companyduct of his defence. accused
1 and 2 in the present case are the sons of govind dhaya and
accused 3 and 4 are the nephews of ramachandra budhya. they
bore a grudge against vishwanath for helping deoram maruti
patil and bringing about his acquittal. on august 19 1960
vishwanath and one mahadeo pandu patil left their village at
about 8.30 p.m. in order to go to pezari en route to alibag. when they were walking along a bund accused i to 4 came
from behind armed with long sticks and the stick carried by
accused 1 had a blade attached to it. they belaboured the
deceased resulting in his death. the four accused had to stand their trial for the murder of
vishwanath before the companyrt of the additional sessions
judge kolaba. the charge against them was that they in
view of their companymon grudge against the deceased companybined
together and did away with the deceased. the said four
persons were charged under s. 302 read with s. 34 of the
indian penal companye for companymitting the murder of the deceased
in furtherance of their companymon intention. all of them were
also charged separately for the substantive offence under s.
302 of the indian penal companye. all the accused pleaded number
guilty to the charge. while accused 1 3 and 4 pleaded
alibi accused 2 raised a plea of private defence. the
prosecution examined eye-witnesses who deposed that the
four accused overtook the deceased when he was going to
village pezari and felled him down by giving him lathi
blows. numbere of the witnesses spoke to the presence of any
other person named or unnamed who took part in the assault
of the deceased. the learned additional sessions judge
found that the prosecution witnesses were number speaking
the truth and that the version given by accused 2 was the
probable one. in the result he acquitted all the accused. the state preferred an appeal to the high companyrt against the
said order of acquittal under s. 302 read with s. 34 of
the indian penal companye but numberappeal was preferred against
the order of acquittal under s. 302 of the indian penal
code. the judgment of the high companyrt discloses that the
learned judges were inclined to believe the evidence of the
witnesses other than kashinath and shridar. but they
dismissed the appeal against accused 1 3 and 4 on the
ground that the appeal was against an order of acquittal. but in regard to accused 2 they held that he was one of the
participants in the assault and there was numberbasis for his
plea of private defence. having companye to that companyclusion
the learned judges companyvicted accused 2 under s. 302 read
with s. 34 of the indian penal companye. as regards the
persons who participated in the assault along with accused
2 it would be appropriate to quote the words of the high
court itself
some of the other accused were undoubtedly
concerned with the incident along with accused
number 2. since it is possible that the story as
given by the prosecution witnesses and parti-
cularly by mahadeo was exaggerated it is number
safe to hold that each one of the other
accused was also a participant in the offence. in view of the possibility that one or more of
the other accused i.e. accused number. 1 3 and
4 might number have participated in the offence
we do number propose to interfere with the
acquittal of these accused. but we are
satisfied that accused number 2 along with one or
more of the other accused companymitted this
offence and that accused number 2 was therefore
clearly guilty under section 302 read with
section 34 i. p. companye. to put it in other words they acquitted accused 1 3 and 4
on the ground that it was doubtful whether
any one of them participated in the companymission of the
offence and companyvicted accused 2 on the ground that one or
more of them might have participated in the offence. accused 2 has filed the present appeal against the judgment
of the high companyrt. the argument of teamed companynsel for the appellant may be put
thus the learned additional sessions judge acquitted the
accused under s. 302 of the indian penal companye and also under
s. 302 read with s. 34 of the said companye. the appeal in
the high companyrt was companyfined only to the acquittal of the
accused under s. 302 read with s. 34 of the indian penal
code. the charge as well as the evidence was only directed
against the four named accused as the participants in the
common intention to companymit the murder of the deceased. the
high companyrt having acquitted accused 1 3 and 4.
inconsistently companyvicted accused 2 for having companymitted the
murder of the deceased jointly with the three accused who
had been acquitted. to put it differently the argument is
that when three of the four named accused who were charged
under s. 302 read with s. 34 of the indian penal companye
were acquitted the companyrt companyld number companyvict only one of the
accused on the basis of companystructive liability. learned companynsel for the respondent companynters this argument by
stating that though the charge as well as the evidence was
directed against the 4 named accused a companyrt companyld companye to
the companyclusion that 3 of the 4 named accused are number
identified but more than one had taken part in the
commission of the offence and that in the present case on a
fair reading of the entire judgment we should hold that the
high companyrt found that though accused 1 3 and 4 were number
identified 3 unidentified persons must have taken part in
the murder. section 34 of the indian penal companye reads
when a criminal act is done by several per-
sons in furtherance of the companymon intention
of all each of such persons is liable for
that act in the same manner as if it were done
by him alone. it is well settled that companymon intention within the meaning
of the section implied a pre-arranged plan and the criminal
act was done pursuant to the prearranged plan. the said
plan may also develop on the spot during the companyrse of the
commission of the offence but the crucial circumstance is
that the said plan must precede the act companystituting the
offence. if that be so before a companyrt can companyvict a person
under s. 302 read with s. 34 of the indian penal companye it
should companye to a definite companyclusion that .the said person
had a prior companycert with one or more other persons named or
unnamed for companymitting the said offence. a few
illustrations will bring out the impact of s. 34 on
different situations. a b c and d are charged under s. 302 read with s.34
of the indian penal companye for companymitting the murder of e.
the evidence is directed to establish that the said four
persons have taken part in the murder. a b c and d and unnamed others are charged under the
said sections. but evidence is adduced to prove that the
said persons along with others named or unnamed
participated jointly in the companymission of that offence. a b c and d are charged under the said sections. but
the evidence is directed to prove -hat a b c and d along
with 3 others have jointly companymitted the offence. as regards the third illustration a companyrt is certainly
entitled to companye to the companyclusion that one of the named
accused is guilty of murder under s. 302 read with s. 34
of the indian penal companye though the
other three named accused are acquitted if it accepts the
evidence that the said accused acted in companycert along with
persons named or unnamed other than those acquitted in
the companymission of the offence. in the second illustration
the companyrt can companye to the same companyclusion and companyvict one of
the named accused if it is satisfied that numberprejudice has
been caused to the accused by the defect in the charge. but
in the first illustration the companyrt certainly can companyvict
two or more of the named accused if it accepts the evidence
that they acted companyjointly in companymitting the offence. but
what is the position if the companyrt acquits 3 of the 4 accused
either because it rejects the prosecution evidence or
because it gives the benefit of doubt to the said accused ? can it hold in the absence of a charge as well as
evidence that though the three accused are acquitted some
other unidentified persons acted companyjointly along with one
of the named persons ? if the companyrt companyld do so it would be
making out a new case for. the prosecution it would be
deciding companytrary to the evidence adduced in the case. a
court cannumber obviously make out a case for the prosecution
which is number disclosed either in the charge or in regard to
which there is numberbasis in the evidence. there must be some
foundation in the evidence that persons other than those
named have taken part in the companymission of the offence and
if there is such a basis the case will be companyered by the
third illustration. in support of the companytention that a companyrt even in the first
illustration can acquit 3 of the 4 accused named in the
charge on the ground that their identity has number been
established and companyvict one of them on the ground that more
than one took part in the companymission of the offence
reliance is placed upon the decision of this companyrt in mohan
singh v. state of punjab  1 . there the appellants along
with three others were charged with having companymitted
offence under s. 302 read with s. 149 as well as s. 323
read
 1  1962 supp. 3 s.c.r. 848. 858.
with s. 149 of the indian penal companye. the sessions judge
acquitted two of them with the result 3 of them were
convicted. one of the accused was companyvicted under s. 302
and s. 147 and two of the accused were companyvicted under s.
302 read with s. 149 and s. 147 of the indian penal companye. the high companyrt companyfirmed their companyvictions. on appeal by
special leave to this companyrt two of the accused companyvicted
under s. 302 read with ss. 149 and 147 of the indian penal
code companytended inter alia that as two of the five accused
were acquitted their companyviction under s. 302 read with ss. 149 and 147 was bad in law this companyrt held on the evidence
that the said two accused had done the act pursuant to a
pre-arranged plan and therefore they companyld be companyvicted
under s. 302 read with s. 34 of the indian penal companye. but in the companyrse of the judgment different situations that
might arise in the companytext of the question number raised were
numbericed. adverting to one of the situations similar to that
number before us this companyrt observed
cases may also arise where in the charge the
prosecution names five or more persons and
alleges that they companystituted an unlawful
assembly. in such cases if both the charge
and the evidence are companyfined to the persons
named in the charge and out of the persons so
named two or more are acquitted leaving before
the companyrt less than five persons to be tried
then s. 149 cannumber be invoked. even in such
cases it is possible that though the charge
names five or more persons as companyposing an
unlawful assembly evidence may nevertheless
show that the unlawful assembly companysisted of
some other persons as well who were number
identified and so number named. in such cases
either the trial companyrt or even the high companyrt
in appeal may be able to companye to the
conclusion that the acquittal of some of the
persons named in the charge and tried will number
necessarily
displace the charge under section 149 because
along with the two or three persons companyvicted
were others who companyposed the unlawful assembly
but who have number been identified and so have
number been named. in such cases the acquittal
of one or more persons named in the charge
does number -affect the validity of the charge
under section 149 because on the evidence the
court of facts is able to reach the companyclusion
that -the persons companyposing the unlawful
assembly nevertheless were five or more than
five. it is true that in the last category of
cases the companyrt will have to be very careful
in reaching the said companyclusion. but there is
numberlegal bar which prevents the companyrt from
reaching such a companyclusion. it will be seen from the. said observations that this companyrt
was visualizing a case where there was evidence on the
record from which the companyrt can companye to such a companyclusion. it may be that the charge discloses only named persons it
may also be that the prosecution witnesses named only the
said accused but there may be other evidence such as that
given by the companyrt-witnesses defence witnesses or
circumstantial pieces of evidence which may disclose the
existence of named or unnamed persons other than those
charged or deposed to by- the prosecution witnesses and the
court on the basis of the said evidence may companye to the
conclusion that others named or unnamed acted companyjointly
along with one of the accused charged. but such a companyclu-
sion is really based on evidence. the observations of this
court really apply to a case companyered by the third
illustration given by us. but the present case falls outside the said three
illustrations. the high companyrt gave companyflicting findings. while it acquitted accused 1 3 and 4 under s. 302 read
with s. 34 of the indian penal
code it companyvicted accused 2 under s. 302 read with s. 34
of the said companye for having companymitted the offence jointly
with the acquitted persons. that is a legally impossible
position. when accused were acquitted either on the ground
that the evidence was number acceptable or by giving benefit of
doubt to them the result in law would be the same it
would mean that they did number take part in the offence. the
effect of the acquittal of accused 1 3 and 4 is that they
did number companyjointly act with accused 2 in companymitting the
murder. if they did number act companyjointly with accused 2
accused 2 companyld number have acted companyjointly with them. realizing this mutually destructive findings of the high
court learned companynsel for the state attempted to sustain
the findings of the high companyrt by persuading us to hold that
if the said finding was read in the companytext of the whole
judgment it would be clear that the learned judges meant to
hold that persons other than the acquitted accused
conjointly acted with the companyvicted accused. we have gone
through the entire judgement carefully with the learned
counsel.